STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
August 26, 1975
Dr. Orval Westby, Secretary
Department of Social Services
Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-150
Legal status of motor vehicle operator transporting elderly
Dear Doctor Westby:
You have requested an opinion based on the following factual situation:
Several senior citizens groups are interested in providing much needed transportation to the elderly by means of a volunteer driver arrangement. To encourage volunteers they would be reimbursed on a mileage basis at a rate which would cover only the expenses of operating the automobile. Drivers would receive no payment from the elderly riders, instead all reimbursement would be paid by a third party sponsor.
Your specific questions are
1. Would a volunteer driver be considered a motor carrier under South Dakota law?
2. Would those elderly who received rides from a volunteer driver be considered guests or passengers under the South Dakota guest statute?
The term "motor carrier" is defined, for purposes of regulation by the Public Utilities Commission, at SDCL 49-28-1 (9) and, for purposes of licensing, at SDCL 32-9-2 as follows:
49-28-1 (9). 'Motor carrier,' any person, corporation, lessee, trustee or receiver operating any motor vehicle, trailer or semitrailer on any public highway in this state for the transportation of persons or property, for hire, except as provided by § 49-28-2;
49-28-1 (10). 'For hire,' for remuneration of any kind, paid or promised, either directly or indirectly, for the transportation of persons or property. An occasional accommodative transportation service by a person not in the transportation business while on an errand for himself, shall not be construed as a service for hire, even though the person transported shares in the cost or pays for the service; ...
32-9-2. The term 'motor carrier' when used in this chapter shall mean any person, copartnership, or corporation owning, controlling, operating, or managing any motor vehicle, trailer, semitrailer or motor propelled or trailed vehicle chassis for the transportation of persons or property over the public highways of this state, except as provided in § 32-9-3.
The distinction between the two definitions is that in the former the operation of the motor vehicle must be transporting persons or property for hire whereas no compensation is necessary under the latter. As a result the status of a person as a motor carrier must be determined separately under the motor vehicle law and public utility law. In most cases the facts are probably such that there is no difficulty in finding that motor carrier status exists under both definitions. However, this cannot be conclusively presumed and the determination must be made in all cases.
One of the elements of a motor carrier under SDCL 49-28-1 (9) is that of transporting persons or property for direct or indirect remuneration. However, occasional accommodative transportation by a person not in the transportation business, even if for a fee, is excepted from regulation. The factual determination of whether a motor vehicle is operated by a motor carrier shall be made by the Public Utilities Commission. SDCL 49-28-3. It is my opinion that the Commission may, pursuant to SDCL 49-28-33, adopt rules which further define and implement the intent of the Legislature with regard to what constitutes "occasional accommodative transportation." The volunteer driver service referred to in your factual situation could fall into this category provided it did not take the form of a regular operation over a regular route.
Likewise, a persuasive argument can be made that SDCL 32-9-3 (1) and 32-9-5 provide an exception for volunteer drivers from the carrier compensation requirements. The above cited statutes read as follows:
(1) When operating as a passenger car of not more than nine passenger seating capacity for personal use or for private business use of operator or his employer for carrying property of five hundred pounds or less and persons; ... "
32-9-5. For the purpose of this chapter, any person as defined in § 32-9-1, using the public highways of this state as a motor carrier, shall be deemed to be making unusual use of said highways.
A volunteer driver combining personal business and transportation of senior citizens at the same time would not appear to fall within the intended scope of the provisions of SDCL 32-9. The purpose of said law is to tax those persons who make unusual and extra use of the highways (SDCL 32-9-4).
Therefore, the answer to your Question No. 1 must be qualified. A person transporting elderly citizens by private passenger car is not specifically exempted from regulation or licensing as a motor carrier. However, based on a complete factual situation of the nature and extent of the service to be provided, the Public Utilities Commission, pursuant to SDCL 49-28, and the Secretary of the Department of Public Safety, pursuant to SDCL 32-9, could determine that such a person is not a common carrier.
With regard to your Question No.2, the South Dakota guest statute reads as follows:
32-34-1. No person transported by the owner or operator of a motor vehicle as his guest without compensation for such transportation shall have cause of action for injury, death, or loss, in case of accident, unless such accident shall have been caused by the willful and wanton misconduct of the owner or operator of such motor vehicle, and unless such willful and wanton misconduct contributed to the injury, death, or loss for which the action is brought.
The South Dakota Supreme Court has recently upheld the constitutionality of our guest statutes. Behrns v. Burke, 229 N. W. 2d 86 (April 25, 1975) and, therefore, I will confine my remarks to the facts presented.
The basic issue to be resolved in determining if a passenger is a guest for purposes of the statute is whether (1) there is an existing contract with benefit passing to the driver, and (2) the benefit is sufficiently real, tangible and substantial so as to serve as the inducing cause of the transportation. Peterson v. Snell, 80 S.D. 496,127 N.W.2d 142. The fact that the compensation is received from a third party does not create a valid defense for the driver. Robe v. Ager, 80 S.D. 597, 129 N.W.2d 47. In the case of Boyd v. Alguire, 82 S.D. 684,153 N.W.2d 192, it was held that a jury could properly find that a fifty cent payment by a passenger to the driver was sufficient motivation for furnishing transportation and the guest statute was inapplicable.
The point I am attempting to make is that the particular factual situation will ultimately determine the applicability of the guest statute. It is my opinion that a volunteer transporting senior citizens and being compensated on a mileage basis would not have protection under the guest statute from a cause of action for damages. In answer to your Question No.2 it is my opinion that an elderly citizen under your factual situation would, in the absence of negligence on his part (SDCL 32-34-2) be a "passenger" rather than a "guest."
Respectfully submitted,
William Janklow
Attorney General
WJJ:LLV:dk
