UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 2, No.2SPRING 1979
Roberts v. Johnson-A Welcome Change Tainted
By An Outmoded Approach To Statutory Interpretation
In 1974, the Washington State Legislature repealed its automobile guest statute,(fn1) intending to establish ordinary negligence as the proper standard of liability in host-guest automobile tort actions.(fn2) Nevertheless, in March 1978, in Lau v. Nelson,(fn3) the Washington Supreme Court, ignoring clear indicia of legislative intent, held that the repeal of the guest statute revived the common law of this state, which, like the guest statute, predicated a guest's recovery on proving the host grossly negligent. Having effectively reinstated the very law the legislature repealed, the Lau court declined to decide whether the majority rule of ordinary negligence(fn4) should replace Washington's common law rule of gross negligence.(fn5)
In December 1978, in Roberts v. Johnson,(fn6) the court resolved that issue by overruling Lau and abandoning gross negligence in favor of ordinary negligence as the applicable standard of liability. This laudatory and long overdue result was tainted, however, by the court's specific reaffirmation of Lau's holding that the repeal of a statute reinstates the common law regardless of the legislative intent behind the repeal. The court's failure to ascertain and implement the legislative intent is the unfortunate manifestation of a rigid, insensitive, and rule-oriented approach to statutory interpretation.(fn7)
In June 1977, Debbra Roberts instituted an action in the Superior Court for Yakima County(fn8) to recover damages for injuries sustained while riding in an automobile owned and operated by Randall Johnson. The trial court granted defendant's motion for summary judgment because his conduct did not constitute gross negligence.(fn9) The supreme court reversed the trial court, thereby overruling Lau and a long line of cases predicating a guest's recovery on a finding of gross negligence.(fn10)
In the 1926 decision of Heiman v. Kloizner,(fn11) the Washington Supreme Court first addressed the question of a host driver's liability to his guest. The court held that an automobile driver must exercise a higher degree of care for the safety of a guest than for the safety of a mere trespasser, but a lesser degree of care than that required for the safety of a passenger for hire. Shortly after Heiman, Saxe v. Terry(fn12) established Washington's common law requirement of gross negligence. Although Heiman did not definitely establish the required standard of care, the Saxe court interpreted Heiman as requiring a showing of gross negligence before an invited guest could recover.(fn13) The Saxe court offered no analysis, however, and logic does not support its conclusion.
Recognizing three standards of care, Saxe defined gross negligence as the want of slight care, ordinary negligence as the want of ordinary care, and slight negligence as the want of great care.(fn14) Applying these standards to the Heiman holding, the requisite care would lie somewhere between that required for the care of a passenger for hire(fn15) and that required for the care of a mere trespasser;(fn16) that is, somewhere between great care and slight care. The area between these two extremes is some species of ordinary care. Under the Saxe court's own definition, then, want of ordinary care results in ordinary negligence and, although varying degrees of ordinary negligence may exist,(fn17) common logic precludes the inclusion of gross negligence.
The court did not recognize this error in judicial reasoning until Roberts. In Roberts, Justice Rosellini indicated the Saxe court, in assuming that a paid carrier was obligated to exercise no more than ordinary care for the safety of its passengers, misconceived the rule with respect to the liability of a carrier for hire, which requires the highest degree of care.(fn18) "Had the court had the correct rule in mind, there would have been no obstacle to the adoption of the requirement of ordinary care in the host-guest situation."(fn19)
The Roberts court indicated that however mistakenly Washington's common law rule was conceived, the court should not abandon it and adopt the majority rule of ordinary care without inquiring into the validity of the majority rule as a rational standard of liability. In analyzing the rationality of the majority rule, the court noted one should consider the nature of the activity to which the rule relates. Acknowledging the operation of a motor vehicle is a dangerous undertaking, the court emphasized that aside from the former guest statute, no other ordinance or statute condones the exercise of less than ordinary care in the operation of motor vehicles.
Recognizing the need for consistency, the court stressed that, in addition to legislation requiring ordinary care in the operation of motor vehicles, the developing common law of Washington also recognizes the duty of ordinary care in any activities that may create an unreasonable risk of harm to others. The court noted that where a landowner's activities create an unreasonable risk of harm, a duty exists to exercise reasonable care to avoid injuring a person permissibly on the land whose presence is or should be known to the landowner.(fn20) Accordingly, the court reasoned that if a landowner as host has a duty to exercise reasonable care toward a guest on the host's premises, then a host owes that same duty to a passenger in his automobile where the risk of harm is ordinarily much greater. In so holding, the court has placed an automobile host's duty within the common bounds of civil responsibility.
The court noted that adopting a standard of ordinary care necessitated overruling Lau v. Nelson(fn21) only to the extent Lau applied the rule of gross negligence: "Insofar as it held that the repeal of a statute restores the rule at common law, however, the opinion was correct and is reaffirmed."(fn22) In reaffirming Lau on this ground, the court perpetuated an egregious error in statutory interpretation by failing to effectuate the legislative intent behind the 1974 repeal of Washington's guest statute.
In Lau, Justice Rosellini, without supporting authority, indicated the repeal of Washington's guest statute revived the common law of this state which, like the guest statute, predicated a guest's recovery on a showing of gross negligence.(fn23) Apparently the court relied on the maxim laid down in State v. Frater(fn24)that "the legislative repeal of a statute which is merely declaratory of the common law,(fn25) in the absence of a new statute stating some other rule, leaves the common law in effect."(fn26) Frater, however, recognized that the revival of the common law was consistent with the legislative intent(fn27) behind the repealing statute there in question.(fn28) This deference to legislative intent was implicit in the rule set forth in Frater and, therefore, the rule was inapplicable to the situation in Lau because the legislative intent clearly opposed reinstatement of the common law rule.(fn29) Additionally, the Lau holding suggests the legislature acted needlessly in repealing the guest-host statute in 1974 when the repeal would have no effect on the law. Such a suggestion conflicts with the presumption that a legislature does not engage in unnecessary or meaningless legislation.(fn30)
The Lau court recognized petitioner's argument that the legislature, in repealing the guest statute, intended to substitute, not the common law rule of this jurisdiction, but rather the rule followed in the majority of jurisdictions requiring only a showing of ordinary negligence. Conceding the court followed the minority view when it adopted a standard of slight care, Justice Rosellini stated that nothing in the language of the repealing act disclosed an intent to adopt some other rule because "[s]uch an intent could have been expressed only by an amendatory act."(fn31) Nevertheless, because a repealing act(fn32) is as much a piece of positive legislation as the statute it rescinds, the court's search for legislative intent cannot stop with the language of the act. The primary purpose behind all statutory interpretation is to ascertain and effectuate the intent of the legislature.(fn33) The first and best source from which to ascertain the meaning of a statute is the text of the act.(fn34) In construing a repealing statute,(fn35) however, intrinsic aids(fn36) to interpretation normally are nonexistent. When intrinsic aids are of limited assistance, the court may look to extrinsic aids,(fn37) such as legislative history(fn38) and the social...
