## Facts

- McConville met Licht at a bar and rode as a guest passenger in her automobile.
- Licht’s vehicle collided with another car, and McConville was injured.
- McConville sued Licht and her liability insurer, State Farm, for personal injuries.
- A jury found Licht causally negligent in operating the vehicle.
- The jury also found McConville, as a guest, assumed the risk of Licht’s manner of driving on the highway.
- Under Wisconsin’s then-prevailing host–guest assumption-of-risk doctrine, the finding operated as a complete bar to recovery, and judgment dismissed the complaint.
- After verdict, McConville moved for post-verdict relief, including a new trial in the interest of justice; the trial court denied the motions.

## Issues

1. Whether the guest’s “willingness to ride” with a negligent host should have been submitted as comparative/contributory negligence rather than as assumption of risk, particularly after intervening judicial discussion questioning the doctrine.
2. Whether a new trial in the interest of justice was warranted because later judicial opinions suggested the host–guest assumption-of-risk doctrine should be reconsidered.

## Decision

- The Supreme Court of Wisconsin affirmed the judgment dismissing McConville’s complaint.
- The court held the trial court did not err by submitting the guest’s conduct under an assumption-of-risk theory rather than negligence subject to comparative fault.
- The court declined to order a new trial in the interest of justice based on intervening doctrinal debate and refused to abandon the host–guest assumption-of-risk doctrine in this case.
- The court noted McConville did not object at trial to submitting assumption of risk in the special verdict.

## Legal Principles

- In automobile host–guest cases, assumption of risk may arise from the guest’s voluntary continuation of the ride while knowing and appreciating the hazard posed by the host’s driving.
- In that context, assumption of risk may operate as a complete defense, distinct from contributory/comparative negligence, reflecting a policy-based limitation on the host’s duty to the guest.
- Concurring opinions or nonbinding judicial commentary questioning a doctrine do not, by themselves, require recharacterizing a defense retroactively or justify a new trial.
- Failure to timely object to verdict form or submission of issues at trial weighs heavily against obtaining a new trial based on later changes or criticisms in decisional law.
- A new trial “in the interest of justice” is an extraordinary remedy not granted merely because the governing doctrine is later debated or reconsidered.

## Conclusion

Wisconsin upheld dismissal of a guest passenger’s injury claim because the jury’s finding of assumption of risk—based on the guest’s knowing acquiescence in the host’s dangerous driving—remained a complete bar under then-existing host–guest law, and later judicial criticism of that doctrine did not warrant a new trial absent timely trial objections or a miscarriage of justice.


McConville v. State Farm Mut. Auto. Ins. Co., 113 N.W.2d 14 (Wis. 1962)