CACI 901 Status of Common Carrier Disputed

California Civil Jury Instructions CACI

901 Status of Common Carrier Disputed

To prove that [name of defendant] was a common carrier, [name of plaintiff] must prove that it was in the business of transporting [the property of] the general public.

In deciding this issue, you may consider whether any of the following factors apply. These factors suggest that a carrier is a common carrier:

(a)The carrier maintains a regular place of business for the purpose of transporting passengers [or property].

(b)The carrier advertises its services to the general public.

(c)The carrier charges standard fees for its services.

(d)[Insert other applicable factor(s).]

A carrier can be a common carrier even if it does not have a regular schedule of departures, a fixed route, or a transportation license.

If you find that [name of defendant] was not a common carrier, then [name of defendant] did not have the duty of a common carrier, only a duty of ordinary care.

Directions for Use

The court should give the ordinary negligence instructions in conjunction with this one. Ordinary negligence is the standard applicable to private carriers.

Sources and Authority

“Common Carrier” Defined. Civil Code section 2168.

Contract of Carriage. Civil Code section 2085.

“[A] common carrier within the meaning of Civil Code section 2168 is any entity which holds itself out to the public generally and indifferently to transport goods or persons from place to place for profit.” (Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1508 [3 Cal.Rptr.2d 897], internal citations omitted.)

“Whether a party is a common carrier for reward may be decided as a matter of law when the material facts are not in dispute. When the material facts are disputed, it is a question of fact for the jury.” (Huang v. The Bicycle Casino, Inc. (2016) 4 Cal.App.5th 329, 339 [208 Cal.Rptr.3d 591 [citing this instruction].)

“Factors bearing on a party’s common carrier status include (1) whether the party maintained an established place of business for the purpose of transporting passengers; (2) whether the party engaged in transportation as a regular business and not as a casual or occasional undertaking; (3) whether the party advertised its transportation services to the general public; and (4) whether the party charged standard rates for its service. The party need not have a regular schedule or a fixed route to be a common carrier, nor need the party have a transportation license. [¶] Not all these factors need be present for the party to be a common carrier subject to the heightened duty of care.” (Huang, supra, 4 Cal.App.5th at p. 339, internal citations omitted; see also Gradus v. Hanson Aviation, Inc. (1984) 158 Cal.App.3d 1038, 1047–1048 [205 Cal.Rptr. 211] [approving jury instruction].)

“In deciding whether [defendant] is a common carrier, a court may properly consider whether (1) the defendant maintains a regular place of business for the purpose of transportation; (2) the defendant advertises its services to the general public; and (3) the defendant charges standard fees for its services.” (Martine v. Heavenly Valley Limited Partnership (2018) 27 Cal.App.5th 715, 725 [238 Cal.Rptr.3d 237, citing this instruction].)

“Common carrier status emerged in California in the mid-19th century as a narrow concept involving stagecoaches hired purely for transportation. Over time, however, the concept expanded to include a wide array of recreational transport like scenic airplane and railway tours, ski lifts, and roller coasters. This expansion reflects the policy determination that a passenger’s purpose, be it recreation, thrill-seeking, or simply conveyance from point A to B, should not control whether the operator should bear a higher duty to protect the passenger.” (Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1294 [222 Cal.Rptr.3d 633], internal citations omitted.)

“[T]he key inquiry in the common carrier analysis is whether passengers expect the transportation to be safe because the operator is reasonably capable of controlling the risk of injury.” (Grotheersupra, 14 Cal.App.5th at p. 1295 [hot air balloon is not a common carrier].)

“A private carrier … is bound only to accept carriage pursuant to special agreement.” (Webster v. Ebright (1992) 3 Cal.App.4th 784, 787 [4 Cal.Rptr.2d 714].) Private carriers “ ‘make no public profession that they will carry for all who apply, but … occasionally or upon the particular occasion undertake for compensation to carry the goods of others upon such terms as may be agreed upon.’ ” (Id. at p. 788, internal citations omitted.)

“ ‘[T]he law applicable to common carriers is peculiarly rigorous, and it ought not to be extended to persons who have not expressly assumed that character, or by their conduct and from the nature of their business justified the belief on the part of the public that they intended to assume it.’ ” (Samuelson v. Public Utilities Com. (1951) 36 Cal.2d 722, 730 [227 P.2d 256], internal citation omitted.)

“To be a common carrier, the entity merely must be of the character that members of the general public may, if they choose, avail themselves of it.” (Squaw Valley Ski Corp., supra, 2 Cal.App.4th at pp. 1509–1510, internal citation omitted.)

“Given the fact [defendant] indiscriminately offers its Shirley Lake chair lift to the public to carry skiers at a fixed rate from the bottom to the top of the Shirley Lake run, it logically comes within the Civil Code section 2168 definition of a common carrier.” (Squaw Valley Ski Corp., supra, 2 Cal.App.4th at p. 1508.)

“[T]he ‘reward’ contemplated by the statutory scheme need not be a fee charged for the transportation service. The reward may be the profit generated indirectly by easing customers’ way through the carriers’ premises.” (Huang, supra, 4 Cal.App.5th at p. 339, internal citation omitted.)

“ ‘[T]he “public” does not mean everyone all of the time; naturally, passengers are restricted by the type of transportation the carrier affords. [Citations.] “One may be a common carrier though the nature of the service rendered is sufficiently specialized as to be of possible use to only a fraction of the total population.” … To be a common carrier, the entity merely must be of the character that members of the general public may, if they choose, avail themselves of it.’ ” (Huang, supra, 4 Cal.App.5th at p. 339, internal citation omitted.)

“Plaintiff also argues the public policy of protecting passengers of a common carrier for reward, as expressed in Civil Code section 2100, precludes limiting defendant’s duty to riders on [bumper cars]. In Gomez v. Superior Court [(2005) 35 Cal.4th 1125, 1136, fn. 5 [29 Cal. Rptr. 3d 352, 113 P.3d 41]], we held that an operator of a ‘roller coaster or similar amusement park ride can be a carrier of persons for reward’ for purposes of Civil Code section 2100. At the same time, however, we expressed no opinion ‘whether other, dissimilar, amusement rides or attractions can be carriers of persons for reward.’ ” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1160 [150 Cal.Rptr.3d 551, 290 P.3d 1158] [bumper car ride is not common carrier].)

“In the situation at bar, [defendant]’s motor cars were customarily and daily cruising the streets for patronage or awaiting calls of the public. It was a common carrier in transporting such patrons. But when it agreed to act as carrier of handicapped school children under agreement for its operators to escort the pupils to and from their schools and homes to the cab and to render such service exclusively for them at designated hours, the company ceased to be a common carrier while transporting the specified children during such hours.” (Hopkins v. Yellow Cab Co. (1952) 114 Cal.App.2d 394, 398 [250 P.2d 330].)

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1056
2 Levy et al., California Torts, Ch. 23, Carriers, § 23.01 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers, § 109.14 (Matthew Bender)
3 California Points and Authorities, Ch. 33, Carriers, § 33.29 (Matthew Bender)
California Civil Practice: Torts §§ 28:1–28:2 (Thomson Reuters)