## Facts

- Nina C. Neu was injured while riding as a guest passenger in a 1967 Plymouth Fury owned by Frank Grant and Lorna Marie Grant and driven by Lorna on Poison Spider Road near Casper, Wyoming.
- Frank Grant drove a pickup truck on the same road at the same time.
- The Grants began racing the two vehicles.
- During an attempt by Lorna to overtake Frank’s pickup, Lorna lost control; the Plymouth skidded a long distance, rolled at least once, and came to rest off the roadway.
- Neu filed a diversity action in federal district court seeking damages, alleging negligence by Frank and gross negligence by Lorna.
- The Grants relied on Wyoming’s guest statute, Wyo. Stat. § 31-233, which limited a host driver’s liability to a guest passenger unless the driver’s conduct amounted to gross negligence (or other heightened misconduct described by the statute).
- After a pretrial conference, Neu moved to strike the portion of the Grants’ answer asserting the guest-statute defense, arguing the statute violated the Wyoming and United States Constitutions.
- The district court denied the motion to strike, and Neu did not object to the denial on the record.
- At trial, the court instructed the jury that Neu was a “guest” within the meaning of the statute and therefore had to prove the driver’s gross negligence; Neu did not object to the instruction.
- The jury returned a verdict for the Grants. When the court asked whether either side wished to make any motions after the verdict, Neu’s counsel declined.
- Neu appealed, arguing the guest statute was unconstitutional under state and federal law.

## Issues

1. Whether Neu preserved for appellate review her constitutional challenge to Wyoming’s guest statute when she failed to make timely, specific objections to (a) the denial of her motion to strike and (b) the jury instruction applying the statute, and made no post-verdict motion raising the issue.
2. If the issue was preserved, whether Wyoming’s guest statute violated constitutional equal-protection guarantees by treating guest passengers differently from other automobile passengers.

## Decision

- The Tenth Circuit affirmed the judgment entered on the jury’s verdict for the Grants.
- The court held Neu did not preserve her constitutional challenge for appeal because she failed to make the required, specific objections at the time the district court ruled and when the jury was instructed, and she pursued no post-verdict relief.
- Because the alleged error was not preserved, the court declined to decide whether the guest statute was constitutional.

## Legal Principles

- Issues, including constitutional claims, generally are not reviewed on appeal unless they were raised in a manner that gave the trial court a fair opportunity to address and correct them.
- Under Federal Rule of Civil Procedure 46, a party must make known to the court the action the party wants the court to take (or the party’s objection) and the grounds for it.
- Under Federal Rule of Civil Procedure 51, a party must object to a jury instruction (or the failure to give an instruction) before the jury retires, stating distinctly the matter objected to and the grounds.
- A pretrial filing that attacks a statute’s validity is not enough, by itself, when the party later remains silent as the case is tried and the jury is instructed on the statute.
- Where the trial record contains only an undeveloped denial of a constitutional motion and no instruction objection, an appellate court may resolve the appeal on waiver grounds and leave the constitutional question undecided.

## Conclusion

Neu v. Grant affirms a defense verdict in a diversity auto-injury case because the plaintiff did not preserve her constitutional attack on Wyoming’s guest statute: she did not object on the record to the denial of her motion to strike, did not object to the guest-statute jury instruction as required by Rules 46 and 51, and made no post-verdict motion, so the Tenth Circuit refused to reach the statute’s constitutionality.


Neu v. Grant, 548 F.2d 281 (1977)