CACI No. 901. Status of Common Carrier Disputed

Judicial Council of California Civil Jury Instructions (2020 edition)

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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
• “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
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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.” (Grotheer,supra, 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.)
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• “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 (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, § 109.14 (Matthew
Bender)
3 California Points and Authorities, Ch. 33, Carriers, § 33.29 (Matthew Bender)
2 California Civil Practice: Torts §§ 28:1-28:2 (Thomson Reuters)
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