California Civil Jury Instructions (CACI)

901. Status of Common Carrier Disputed

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.

New September 2003

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

  • Whether a party is a common carrier is a question of fact, but it can be decided as a matter of law where the facts are undisputed. (Squaw Valley Ski Corporation v. Superior Court (1992) 2 Cal.App.4th 1499, 1506 [3 Cal.Rptr.2d 897].)
  • Civil Code section 2168 provides: “Everyone who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry.”
  • Civil Code section 2085 provides: “The contract of carriage is a contract for the conveyance of property, persons, or messages, from one place to another.”
  • “[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, supra, 2 Cal.App.4th at p. 1508, internal citations omitted.)
  • “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.)
  • Private carriers are not held to the “utmost care” standard of common carriers, but are instead required to exercise only ordinary care. (Webster, supra, 3 Cal.App.4th at p. 787.)
  • “ ‘[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.)
  • It does not matter if the service is specialized in nature and thus of use to only a small number of people: “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, supra, 2 Cal.App.4th at pp. 1509–1510, internal citation omitted.)
  • In Gradus v. Hanson Aviation, Inc. (1984) 158 Cal.App.3d 1038 [205 Cal.Rptr. 211], the court approved of an instruction stating that the plaintiff had the burden of proving that the defendant “undertook either expressly or by course of conduct generally and for all persons indifferently to carry and deliver them for hire, so long as it had room.” (Id. at pp. 1047–1048.) The court also
  • approved of giving the jury the factors of regular place of business, advertising, and standard charges. (Id. at p. 1048.) Note that these factors may not be applicable in all cases. For example, ski lifts, elevators, and escalators are considered common carriers even though they do not generally advertise as such or charge a fee. The rationale for the higher standard of care is that “[a]lthough a store does not charge for use of its elevators or escalators, it profits from the utilization of these devices to assist customers in shopping at the store.” (Squaw Valley, supra, 2 Cal.App.4th at p. 1508.)
  • Carriers that are typically thought of as common carriers can, by special arrangement, temporarily become private carriers: “In the situation at bar, the Yellow Cab Company’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 (10th ed. 2005) Torts, § 924

2 Levy et al., California Torts, Ch. 23, Carriers, § 23.01 (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 109, Carriers (Matthew Bender)

2 California Civil Practice: Torts (Thomson West) §§ 28:1–28:2