Brewer v. Copeland

Finley, J.

(dissenting) — Sound constitutional analysis must not turn upon talismanic invocation by the courts of factual and/or legal presumptions to uphold the constitutionality of the classifications established by a state statute. When the legislature enacts a statute, the classifications of which are not reasonable, rational, and just, it is an abdication of judicial responsibility to deny the constitutional right of citizens to equal protection of the laws, particularly by resorting to overly simplistic talk of judicial self-restraint and deference to legislative judgment. In my opinion, the majority has accorded an inordinate and undue deference to several such presumptions when, in fact, the archaic host-guest statute challenged herein can only be described as “unreason personified.” Lascher, Hard Laws Make Bad Cases — Lots of Them, 9 Santa Clara Law. 1, 10 (1968). Accordingly, I dissent.

It has been said that the impetus for the enactment of host-guest statutes appears to have been the extensive lobbying efforts of insurance companies. See W. Prosser, Handbook Of The Law Of Torts, 186, 187 (4th ed. 1971); Allen, Why Do Courts Coddle Auto. Indemnity Companies, 61 Am. L. Rev. 77 (1927). Essentially and traditionally, two reasons have been advanced to justify such statutes. First, it is argued that drivers who gratuitously offer their hospitality should be protected from ungrateful suits by guests. Second, it is asserted that the host-guest statute aids in eliminating the possibility of collusive lawsuits in which the host fraudulently confesses negligence to permit an automobile guest passenger — presumably a friend — to recover from the host’s insurance carrier.

Ostensibly in furtherance of these goals, RCW 46.08.080, *76which is set forth in the majority opinion, in essence creates, somewhat arbitrarily, three classifications or categories for automobile-guest passengers. First, automobile guests riding as nonpaying passengers are treated differently than paying passengers. Second, nonpaying passengers are treated differently than nonpaying social guests in other contexts, e.g., passengers on airplanes and boats, guests on real property, et cetera. Third, some injured but nonpaying passengers are treated differently than other injured but nonpaying passengers because (a) recovery is not denied if the injury occurs on a private road, Fleming v. Mulligan, 3 Wn. App. 951, 478 P.2d 754 (1970); (b) recovery is not denied if the host was intoxicated; (c) recovery is not denied if the accident was intentional or due to the gross negligence of the host.

Plaintiff argues that these classifications are violative of the equal protection clause of the U.S. Const, amend. 14 and Const, art. 1, § 12. Primary reliance is placed upon the landmark California decision of Brown v. Merlo, 8 Cal. 3d 855, 506 P.2d 212, 106 Cal. Rptr. 388 (1973), which held the California host-guest statute to be unconstitutional on equal protection grounds.

Since neither a fundamental right nor a suspect classification seems to be involved in this case, the validity of RCW 46.08.080 depends upon whether the above classifications are rationally related to the ends sought to be achieved, i.e., protection of hospitality and prevention of collusion. See Reed v. Reed, 404 U.S. 71, 30 L. Ed. 2d 225, 92 S. Ct. 251 (1971); James v. Strange, 407 U.S. 128, 32 L. Ed. 2d 600, 92 S. Ct. 2027 (1972). In applying this rational basis test, the recurrent theme of the majority is that if any state of facts can reasonably be conceived to uphold the legislation and the classifications made therein, then the legislation will be upheld. Reliance is placed upon such cases as McGowan v. Maryland, 366 U.S. 420, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961); Sonitrol Northwest, Inc. v. Seattle, 84 Wn.2d 588, 528 P.2d 474 (1974); Aetna Life Ins. Co. v. *77Washington Life & Disability Ins. Guar. Ass’n, 83 Wn.2d 523, 520 P.2d 162 (1974).

In times past, there was a strong tendency to recite this rather simplistic formula and then to promptly uphold the statutory scheme. See Gunther, Foreword: In Search Of Evolving Doctrine On A Changing Court: A Model For A Newer Equal Protection, 86 Harv. L. Rev. 1, 19 (1972). But it is now quite clear that invocation of the rational basis test does not automatically “suspend the operation of the Equal Protection Clause.” Hagans v. Lavine, 415 U.S. 528, 539, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974).

On the contrary, the Supreme Court has recently retreated from its earlier extreme deference to any imaginable facts supportive of a statutory scheme. The more recent cases do not assess the rationality of statutory classifications simply on the basis of whether any state of facts can reasonably be conceived to support the legislation. Rather, the court’s current approach to the rational basis test has been aptly summarized in Reed v. Reed, supra at 76:

A classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).

(Italics mine.) Numerous other recent cases have repeated the requirement that a classification must have a fair and substantial relation to the goals sought to be achieved. See, e.g., Stanton v. Stanton, 421 U.S. 7, 43 L. Ed. 2d 688, 95 S. Ct. 1373 (1975); Johnson v. Robison, 415 U.S. 361, 39 L. Ed. 2d 389, 94 S. Ct. 1160 (1974); Kahn v. Shevin, 416 U.S. 351, 40 L. Ed. 2d 189, 94 S. Ct. 1734 (1974); Eisenstadt v. Baird, 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972). Cf. Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 31 L. Ed. 2d 768, 92 S. Ct. 1400 (1972). Even when the court has not stated explicitly that the classification must have a fair and substantial relation to the goals to be achieved, it seems reasonably clear that the court implicitly has been employ*78ing a stricter equal protection standard. This is true, at least, if the challenged statute does not involve simply traditional economic regulations or social welfare legislation. This is manifest because, in marked contrast to earlier cases, the court has sustained without hesitation challenges to statutory schemes in which the classifications bear only a tenuous relationship to assertedly valid state purposes. See, e.g., Weinberger v. Wiesenfeld, 420 U.S. 636, 43 L. Ed. 2d 514, 95 S. Ct. 1225 (1975); Jimenez v. Weinberger, 417 U.S. 628, 41 L. Ed. 2d 363, 94 S. Ct. 2496 (1974); Jackson v. Indiana, 406 U.S. 715, 32 L. Ed. 2d 435, 92 S. Ct. 1845 (1972); James v. Strange, 407 U.S. 128, 32 L. Ed. 2d 600, 92 S. Ct. 2027 (1972). Cf. Humphrey v. Cady, 405 U.S. 504, 31 L. Ed. 2d 394, 92 S. Ct. 1048 (1972).

In short, the old and rather rigid rational basis test has been liberated or invigorated to the extent it is no longer an instant and mechanical constitutional rubber stamp for legislative enactments. See generally Gunther, supra at 15-37. It may still be appropriate to give special deference to statutory classifications where the statute involves traditional economic regulations or social welfare legislation.9 But if the challenged statute does not involve such economic regulations or social welfare legislation, the Supreme Court has clearly indicated that it is no longer willing to employ a totally fictional and mechanical approach to constitutional litigation by conjuring up or presuming theoretical facts and/or statutory purposes to support statutory classification schemes. In such situations, i.e., where a suspect classification is not involved so as to trigger the com*79pelling state interest test, but where the statute also does not involve traditional economic or social welfare legislation so as to trigger minimal scrutiny, it appears that an invigorated equal protection test is appropriate.

Moreover, apart from, and irrespective of, the changes in equal protection doctrine that apparently are occurring under the United States Constitution, pursuant to decisions of the United States Supreme Court, I would forthrightly adopt the newer equal protection analysis enunciated above under Const, art. 1, § 12, i.e., the privileges and immunities clause. This provision is, of course, our analogue to the equal protection clause of the United States Constitution. This court has not equivocated or shown trepidation in the past in relying upon and applying provisions of our own constitution when it becomes necessary to modify the law in order to do justice. On the contrary, this court has previously recognized that “ ‘[cjourts have a creative job to do when they find that a rule has lost its touch with reality and should be abandoned or reformulated to meet new conditions and new moral values.’ ” Ackerman v. Port of Seattle, 55 Wn.2d 400, 407, 348 P.2d 664, 77 A.L.R. 2d 1344 (1960) (quoting Traynor, Law And Change In A Democratic Society, 1956 U. Ill. L.F. 230, 232). Furthermore, this court has forthrightly demonstrated judicial leadership in the development of constitutional law when appropriate and when necessary to modify the law to meet the needs of a changing society. See, e.g., DeFunis v. Odegaard, 82 Wn.2d 11, 507 P.2d 1169 (1973); Carter v. University of Wash., 85 Wn.2d 391, 536 P.2d 618 (1975). I most certainly see no reason to retreat from that role of juristic leadership in the instant case.

Accordingly, in my judgment, irrespective of what the state of affairs may be regarding decisions of the United States Supreme Court interpreting the United States Constitution, analysis, interpretation, and application of the privileges and immunities clause of our Washington State Constitution should be modified. Thus, in cases where a suspect classification is involved, the compelling state inter*80est is still appropriate. In the area of economic and social welfare legislation, the older rational basis test, which involves minimal scrutiny, is appropriate. See Aetna Life Ins. Co. v. Washington Life & Disability Ins. Guar. Ass’n, 83 Wn.2d 523, 520 P.2d 162 (1974). But in other areas, where the nature of the interest involved is important but not fundamental, an “invigorated” rational basis test is appropriate under which a court should scrutinize reasonably closely the statutory schemes involved and the legislative classifications must have a fair and substantial relationship to the goals to be achieved. This latter test thus involves an intermediate degree of judicial scrutiny, i.e., less scrutiny than when the compelling state interest test is appropriate but more scrutiny than under the traditional rational basis test.

In the instant case, the host-guest statute certainly does not involve merely traditional economic or social welfare legislation. On the contrary, it involves the right of an injured party to seek compensation for injuries which is a significant, albeit not fundamental, property right. Cf. Cook v. State, 83 Wn.2d 599, 521 P.2d 725 (1974) (Utter, J., concurring). Thus, it is manifest that the constitutionality of the host-guest statute should be assessed pursuant to the invigorated rational basis test. And this means that it .should be analyzed not merely with extreme deference to hypothetical facts as the majority intimates, but rather, in terms of whether the classifications are fairly and substantially related to the purposes sought to be achieved. Such should be the test irrespective of whether the federal or Washington constitution is involved.

Before applying the rational basis test to this case, however, one further point must be stressed: the majority repeatedly contends that it is within the province of the legislature to lower the standard of care. Several statutes which allegedly do so are cited in support of this proposition. Most of these statutes are completely irrelevant, and *81thus inapposite to this case,10 but in any event, the legislature does not have absolute power and can lower the standard of care only if to do so is rational in view of the classifications made and the purposes to be served thereby. Whether this particular statute is rational is the critical question, and its rationality cannot be proved by rough analogies to other statutes whose schemes of classification and purposes have not even been stated or discussed by the majority. Rather, the rationality of the host-guest statute can be assessed only by a careful analysis of the purposes to be served and its schemes of classification.

As noted earlier, there are two commonly stated purposes to be achieved by the host-guest statute. The first such purpose is to protect the generous host’s hospitality from the ingratitude of the guest. This argument apparently had its genesis in the economic conditions of the Depression. It was argued that the Depression was causing an increase in the number of hitchhikers who, it was feared, would likely take advantage of and sue their generous hosts. See Note, 59 Cornell L. Rev. 659, 664 (1974); Note, 18 Calif. L. Rev. 184 (1929).

It has been urged that protecting a host against the ingratitude of one he has injured is not even a valid state interest. See Lascher, Hard Laws Make Bad Cases — Lots of Them, 9 Santa Clara Law. 1, 17. But assuming arguendo that protection against ingratitude is in general a valid state interest, four factors persuade me that it is simply an *82unrealistic fantasy to suppose that the host-guest statute substantially furthers this purpose.

First, it is highly dubious that instituting a lawsuit against a wrongdoer should even be characterized as ingratitude, since the lawsuit is most likely to be prompted not out of revenge but out of the practical necessity to pay medical bills and to recoup lost wages. The practical necessity of paying such bills is, of course, totally irrelevant to and does not negate any appreciation or gratitude one may have for the “lift” given to him by the driver of the motor vehicle.

Second, even if instituting a suit against a host once could have been validly characterized as constituting an act of ingratitude, it certainly cannot be so characterized today in view of the wide-spread availability of automobile insurance. In the late 1920’s approximately only 20 percent of all drivers maintained automobile insurance. Elsbree & Roberts, Compulsory Insurance Against Motor Vehicle Accidents, 76 U. Pa. L. Rev. 690, 691 (1928). In contrast, today automobile insurance is the rule and not the exception. This change in facts is particularly significant since “a statute valid when enacted may become invalid by a change in the conditions to which it is applied.” Nashville C. & S. T. L. Ry. v. Walters, 294 U.S. 405, 79 L. Ed. 949, 55 S. Ct. 486 (1935). Cf. Stanton v. Stanton, 421 U.S. 7, 43 L. Ed. 2d 688, 95 S. Ct. 1373 (1975). It may well be, as the majority suggests, that the uninsured driver is still to be found,11 but the rationality of laws must be assessed with reference to the norm and not with reference to aberrations therefrom. Today, it is obvious that the collection of any judgment rendered in favor of an injured plaintiff likely will come from the coffers of the insurance company and not from the pocketbook of the host. Thus “[i]n plain language, there is *83simply no notion of ‘ingratitude’ in suing your host’s insurer.” Brown v. Merlo, 8 Cal. 3d 855, 868, 506 P.2d 212, 106 Cal. Rptr. 388 (1973). See also Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365 (1974); Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974); Johnson v. Hassett, 217 N.W.2d 771 (N.D. 1974); McConville v. State Farm Mut. Auto. Ins. Co., 15 Wis. 2d 374, 113 N.W.2d 14 (1962). Indeed, it might be more accurate to say that, rather than protecting against ingratitude, the host-guest statute actually engenders ingratitude and hostility because of the hard feelings and frustration likely to arise when the guest becomes encumbered with burdensome medical bills and perhaps permanent injury or disfigurement resulting from the host’s negligence. And any effective recourse to the courts for consideration and adjudication of claims for relief is barred by the operation of the statute.

Third, the purpose of engendering or protecting hospitality simply does not rationally justify lowering protection for nonpaying passengers in automobiles. The hypothesis that generosity can rationally be served by. lowering the protection to be afforded to the recipients thereof has been previously rejected by this court in Pierce v. Yakima Valley Memorial Hosp. Ass’n, 43 Wn.2d 162, 260 P.2d 765 (1953) and Friend v. Cove Methodist Church, Inc., 65 Wn.2d 174, 396 P.2d 546 (1964), which abolished the doctrine of charitable immunity for paying and nonpaying patrons respectively. In Pierce at pages 173-74, this court observed:

[M]en must be just before they are generous; . . . the charitable nature of a tortfeasor cannot place it beyond the law applicable to all; and that protection of life and limb by organized society is of greater importance to mankind than any species of charity . . .” 25 A.L.R. (2d) 29, 58, annotation.

(Italics mine.) This same principle is pertinent to the instant case. If generosity cannot justify lowering the protection for the patrons of charitable institutions, then *84hospitality certainly cannot justify lowering the protection for nonpaying automobile passengers.

Finally, even if the protection of hospitality could justify the withdrawal of a guest’s protection from injury, I can perceive no rationality in subjecting nonpaying automobile passengers to a greater risk of uncompensated injury than is faced by other nonpaying social guests. For example, there exists in Washington no host-guest statute with respect to nonpaying passengers in motorboats and airplanes and, thus, these passengers are not forced to suffer the increased risk of uncompensated injury at the hands of a negligent host. And even in the realm of land owner liability where some traditional albeit highly dubious distinctions still exist between the duties owed to licensees and invitees, our recent case of Memel v. Reimer, 85 Wn.2d 685, 538 P.2d 517 (1975), reduces the differences to a minimum and makes clear that the nonpaying injured guest on real property is accorded far more protection against ordinary negligence than is the nonpaying passenger in an automobile. If there is any rationality in singling out automobile guests under the guise of protecting hospitality and removing from this class of citizens the normal protections against negligence, it is not readily perceptible to me.

In sum, insofar as the purpose of the host-guest statute is to protect hospitality, I am convinced that the means adopted to effectuate this goal are wholly irrational. Therefore, if this statute is to withstand constitutional attack, its justification must rest on other grounds.

The second alleged justification for this statute is that it protects insurers from collusive lawsuits. This argument presumes that nonpaying passengers are likely to be close friends with the driver and that, in the event of an accident, it is likely the driver will falsely admit to being negligent to secure compensation for his injured friend. This theory also presumes that a paying passenger will be a stranger to the driver and that, in the event of an accident, the driver will have no reason to admit to his own negligence. To prevent the possibility of collusion with nonpay*85ing passengers, the statute eliminates all causes of action for ordinary negligence for such passengers. There are several defects, however, in this statutory scheme which convince me that the statute is not substantially related to the prevention of fraud or collusion.

First, this collusion rationale of the statute makes inconsistent assumptions. On the one hand, it assumes that the host will have such a desire to have his nonpaying guest compensated for injuries that he will falsely admit to his own negligence. But at the same time, this theory inexplicably assumes that, even though he wishes to have his guest compensated, the host (1) will not falsely admit to gross negligence and (2) will not falsely state that the guest paid him consideration for the ride which, of course, would remove the entire accident from the purview of the statute. Given the supposed desire of the host to have his guest compensated, such disparate assumptions are illogical, without reason and totally irrational. See Brown v. Merlo, supra; Thompson v. Hagan, supra.

Second and more importantly, the statute is blatantly both overinclusive and underinclusive. It is overinclusive because the nonpaying guest category, the members of which are deprived of their causes of action for ordinary negligence, broadly includes numerous individuals “such as hitchhikers, with whom the driver shares no close relationship and with respect to whom the danger of collusion is remote.” Brown v. Merlo, supra at 875. The effect of the statute, therefore, is to impose its burden “upon a wider range of individuals than are included in the class of those tainted with the mischief at which the law aims.” Tussman & tenBroek, The Equal Protection Of The Laws, 37 Cal. L. Rev. 341, 351 (1949). Our prior cases make clear that we take a dim view of such overinclusive classifications. For instance, in our cases abolishing interspousal tort immunity, Freehe v. Freehe, 81 Wn.2d 183, 500 P.2d 771 (1972), and parental immunity, Borst v. Borst, 41 Wn.2d 642, 251 P.2d 149 (1952), we have quite explicitly indicated that the mere opportunity for collusion in one class of cases “does *86not warrant courts of law in closing the door to all cases of that class.” Borst v. Borst, supra at 653.

In addition to being overinclusive, the host-guest statute is underinclusive because the paying passenger category— the members of which retain their causes of action for ordinary negligence — frequently includes close friends who share expenses through car pool arrangements. Coerver v. Haab, 23 Wn.2d 481, 161 P.2d 194, 161 A.L.R. 909 (1945). See also Brown v. Merlo, supra. But paying passengers who are close friends and who are not denied recovery pose no less a risk of collusion than does the nonpaying hitchhiker who is denied recovery. In addition, the statute is inapplicable if the injury occurs on a private road. Fleming v. Mulligan, 3 Wn. App. 951, 478 P.2d 754 (1970). But accidents occurring on private property pose no less of a risk of collusion than do accidents occurring on public highways. The effect of the statute, therefore, is to inexplicably permit suits for negligence by numerous citizens who are at least as likely to collude with the host as are the citizens barred from suing the host.

The majority apparently attempts to obviate the vices of overinclusiveness and underinclusiveness in the host-guest statute by relying on Silver v. Silver, 280 U.S. 117, 74 L. Ed. 221, 50 S. Ct. 57, 65 A.L.R. 939 (1929), and Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 99 L. Ed. 563, 75 S. Ct. 461 (1955) for the proposition that a statute designed to correct a particular evil need not reach every individual or class to which it might legitimately be applied, ie., corrective action may be taken one step at a time. This rule is well recognized, but it is not of unlimited application and cannot serve as a mandate for gross inequities. On the contrary, while some deviation from absolute equality is allowable, the classification scheme must nevertheless bear a fair and substantial relation to the purposes sought to be achieved. Reed v. Reed, 404 U.S. 71, 30 L. Ed. 2d 225, 92 S. Ct. 251 (1971); Stanton v. Stanton, 421 U.S. 7, 43 L. Ed. 2d 688, 95 S. Ct. 1373 (1975); Eisenstadt v. Baird, 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972). Thus, *87where statutes have been enacted, ostensibly to prevent assertion of fraudulent claims, but which broadly impose their burden upon innocent parties, the Supreme Court has not hesitated to hold them violative of the equal protection clause. See Glona v. American Guarantee & Liab. Ins. Co., 391 U.S. 73, 20 L. Ed. 2d 441, 88 S. Ct. 1515 (1968); Gomez v. Perez, 409 U.S. 535, 35 L. Ed. 2d 56, 93 S. Ct. 872 (1973). Cf. Memorial Hosp. v. Maricopa County, 415 U.S. 250, 39 L. Ed. 2d 306, 94 S. Ct. 1076 (1974). In my judgment, the gross overinclusiveness and underinclusiveness of the host-guest statute challenged herein also requires that it be held to be unconstitutional.

But in addition to the overinclusiveness and underinclusiveness of this statute, there are numerous alternatives available which adequately guard against the possibility of fraud in a less onerous and less sweeping fashion. For instance, there is a plethora of discovery techniques which may always be invoked to ascertain the truth. See CR 26, 27. Moreover, the jury system itself is designed “to ferret out the meritorious from the fraudulent” claims. Borst v. Borst, supra at 653. But even more importantly, there are several statutes which impose criminal sanctions for making fraudulent claims, RCW 48.30.230, for giving false testimony, RCW 9.72.010, RCW 9.72.030, and for offering false evidence, RCW 9.72.080. Even those who procure or attempt to procure others to commit perjury or offer false evidence are subject to criminal sanctions. See RCW 9.72.100; RCW 9.72.110. The existence of these alternative mechanisms which can cope with the possibility of fraud without destroying meritorious and nonfraudulent causes of action should remove any possible lingering doubt that the host-guest statute has exceeded the bounds of rationality. See Johnson v. Hassett, supra at 778; Thompson v. Hagan, supra. Cf. Memorial Hosp. v. Maricopa County, supra.

It is true that several states have recently upheld their respective host-guest statutes against constitutional attack. See, e.g., Richardson v. Hansen, 186 Colo. 346, 527 P.2d *88536 (1974); Justice v. Gatchell, 325 A.2d 97 (Del. 1974); Keasling v. Thompson, 217 N.W.2d 687 (Iowa 1974); Duerst v. Limbocker, 269 Ore. 252, 525 P.2d 99 (1974); Tisko v. Harrison, 500 S.W.2d 565 (Tex. Civ. App. 1973); Cannon v. Oviatt, ............ Utah ............, 520 P.2d 883 (1974). But for the most part these cases display little analysis and simply rely upon a perfunctory recitation of presumptions and precedent established in another era under different conditions. I am persuaded that the Washington host-guest statute is wholly irrational and therefore unconstitutional. The better reasoned cases are in accord. Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365 (1974); Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974); Johnson v. Hassett, 217 N.W.2d 771 (N.D. 1974); Brown v. Merlo, 8 Cal. 3d 855, 506 P.2d 212, 106 Cal. Rptr. 388 (1973). Cf. McConville v. State Farm Mut. Auto. Ins. Co., 15 Wis. 2d 374, 113 N.W.2d 14 (1962). Indeed, the Washington legislature has now repealed the host-guest statute, and thus it appears that the legislature itself has recognized that facts have changed since the inception of the statute which now make its continued operation in modern society totally irrational and unconstitutional. Only the vestigial remains of this archaic statute are left to harass the injured guest passenger in this case.

Therefore, I would overrule our older decision in Shea v. Olson, 185 Wash. 143, 53 P.2d 615, 111 A.L.R. 998 (1936), and hold RCW 46.08.080 to be unconstitutional as certainly violative of the Washington privileges and immunities clause and probably violative of the equal protection clause of the United States Constitution. For the same reasons, I would overrule the common-law doctrine extant in this state that a driver of an automobile is liable in damages to his invited guest only for acts of gross negligence. See Shea v. Olson, supra at 148 and cases cited therein. We should return to the majority rule at common law that the driver of a vehicle owes to a passenger the duty of reasonable care. See 2 F. Harper & F. James, Law Of Torts 950-51 (1956).

*89Accordingly, I would grant the plaintiff herein a new trial.

Rosellini and Hunter, JJ., concur with Finley, J.

For example, in Dandridge v. Williams, 397 U.S. 471, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970), the court sustained the Maryland Aid to Families With Dependent Children Program which provided aid commensurate with need but limited the maximum grant to $250 per family regardless of size, thereby reducing the per capita expenditure for children in larger families. This decision was subsequently explained in Jimenez v. Weinberger, 417 U.S. 628, 41 L. Ed. 2d 363, 94 S. Ct. 2496 (1974), as being a case of “special deference” made necessary because, given the state’s finite resources, its only choice was to support some families adequately and others less adequately or else not to provide sufficient support for any family.

The statutes are cited in footnote 7 of the majority opinion. Of all the provisions cited, only the ones in RCW 19.48 (innkeeper liability), RCW 21.24 (liability of a custodian of a minor), and RCW 38.52 (liability of state in maintaining emergency services and shelter against foreign attack) relate to the standard of care in a tort cause of action. RCW 9.08.040 and 9.48.120 simply define the requisite culpability or intent necessary for certain acts to constitute a crime. Every cited provision in Title 18 simply defines the amount of incompetence or type of behavior (including inter alia gross negligence) that will justify revocation or nonrenewal of certain professional businesses’ licenses or certificates. The other provisions cited are similarly not relevant to the standard of care in a tort cause of action.

The only statistic available for Washington indicates that approximately 75-79 percent of vehicle drivers maintain insurance coverage. Department of Transportation, Driver Behavior And Accident Involvement: Implications For Tort Liability 205 (1970). The study did not investigate or attempt to make any adjustments for the possibility that some insured vehicles may be used solely on private property.