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Seeking Higher Ground

When does the common carrier standard of care actually apply?

February 25, 2020 Photo

Whether planes, trains, automobiles, ferries, rickshaws, elevators, escalators, moving walkways, or more, one significant motivation for all of these technological developments has been to move people from point A to point B. Courts have created a special standard of care for common carriers that are transporting passengers. Generally stated, a common carrier is obligated to use the highest degree of care consistent with the mode of conveyance used and the practical operation of its business. The court in Murphy v. S. Pac. Co. from 1909 phrased it as being responsible for even “the slightest negligence against which human prudence and foresight should have guarded.”

The logic of the common carrier standard is hundreds of years old. It exists because “[t]he passenger while in actual progress upon his journey is exposed to countless hazards, gives himself wholly in charge of the carrier,” as seen in 1893’s Falls v. S.F. & N. P. R. Co. In other words, while riding in a bus, boat, airplane, or train, there is little passengers can do to protect themselves from the risks of travel, such as collisions. Most reading this article have likely experienced that uneasy sensation that comes with being in the claims industry and then riding in a vehicle where the operator did not maintain an adequate following distance. We suspect that sensation was a motivation for this rule.

The common carrier standard of care is higher than a normal negligence standard, so claimants are quick to assert that this higher standard applies. The argument typically assumes that a common carrier is a common carrier, no matter what. Unfortunately for both sides, the rule is not that consistent or certain. A common carrier is not always a common carrier. Determining whether a common carrier standard applies depends upon the exact facts of every claim. The facts gathered during the initial claims investigation may help assess whether that standard applies.

As can be seen, courts have been considering these fact patterns since the 1800s. The way each jurisdiction implements the rule varies, but there have been a variety of common fact patterns where at least some courts have decided when the common carrier standard would apply. Here are a few examples:

• A bus carrying passengers rear-ends a cab that is carrying a fare. The bus likely owes a common carrier duty to its passengers. The cab owes a common carrier duty to its fare. But the bus likely does not owe common carrier duty to the cab’s fare because the fare was in the cab, not the bus.

• A passenger trips over luggage on a train platform while preparing to board. The railroad owed a duty “to give their passengers a reasonable time and opportunity to approach and leave their trains….” (see Falls v. S.F. & N. P. R. Co.) But the common carrier standard does not apply because “a passenger’s entrance to the carrier’s station is characterized by none of the hazards incident to the journey itself….”

• A passenger falls and is injured while passing through a security checkpoint. The common carrier standard might not apply. “[T]he relationship of carrier and passenger is created when one offers to become a passenger, and is accepted as a passenger after he has placed himself under the control of the carrier,” as seen in Orr v. Pac. Sw. Airlines. However, “the undisputed facts show [plaintiff’s] alleged injury did not occur while she was wholly within defendants’ charge in actual progress upon her journey.”

• A passenger falls while walking through an airport concourse. As seen in Marshall v. United Airlines, the common carrier standard “applies while the passengers are in transit, and until they have safely departed from the carrier’s vehicle.” The rule did not apply to a passenger walking through the concourse because it was “a place outside the sphere of any activity of the carrier which might reasonably constitute a mobile or animated hazard to the passenger….”

• An intellectually disabled passenger chokes to death on his sandwich while riding a paratransit bus. The common carrier standard did not “extend to protect passengers from non-transportation risks, such as those associated with eating,” as seen in First Transit Inc. v. Chernikoff.

• A passenger deboarding an aircraft falls while using a jetway. In Farace v. Am. Airlines Inc., the airline and the jetway operator are deemed common carriers because the jetway is a form of transportation.

• In the case Harold’s Club v. Sanchez, an intoxicated casino guest “started to enter upon the escalator, put her foot on the first step, was thrown off balance, and fell.” The escalator operator could be a common carrier, but that status did not include a duty to prevent a drunk guest from boarding.

• In the case Squaw Valley Ski Corp. v. Superior Ct., a person at a ski resort “was in the loading area attempting to board the lift [and] was struck in the head by the bail of one of the chairs affixed to the lift.” The lift operator was deemed a common carrier. The operator unsuccessfully argued that the common carrier relationship had not yet attached because the skier was waiting to board. “Having paid for and received a lift ticket, plaintiff went to the chair lift boarding area and was injured as she got onto the lift. Without question, the relationship of common carrier and passenger had commenced and included the boarding process.”

To complicate the evaluation further, some jurisdictions have declined to apply the common carrier standard and instead apply a standard negligence standard. Some courts view the common carrier standard as a relic of a past era since many of its earliest applications arose from the railroad robber baron era. However, since then, “[m]odern technology and government safety statutes and regulations have diminished much of the rule’s original justification,” at least according to First Transit Inc. v. Chernikoff. That court goes on to say that using the common carrier standard “risks confusion and invites misapplication because it dictates different levels of care depending on the liability-producing event and the precise circumstances involved.”

The theme throughout these cases is that a uniform rule is desirable but generally does not yet exist. When claims and litigation professionals are evaluating passenger claims, factual development of what was happening when the loss occurred is important to determining the standard against which the conduct will be assessed. If the higher standard of care does not apply to a given fact pattern, then that factor may affect the claim’s potential reserve value.

About The Authors
Multiple Contributors
Michael Brink

Michael Brink is supervising claims attorney for National Interstate Insurance. michael.brink@natl.com

Michael Lowry

Michael Lowry is partner at Wilson Elser Moskowitz Edelman & Dicker LLP.  michael.lowry@wilsonelser.com

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CLM’s Transportation Committee provides education, training, and solutions on significant current commercial and personal transportation issues facing insurance carriers, corporations, and other entities and individuals.

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