California Civil Jury Instructions (CACI) (2017)

901. Status of Common Carrier Disputed

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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 within the meaning of Civil Code section
2168 is a matter of law where . . . the material facts are not in dispute.”
(Squaw Valley Ski Corp.,supra, 2 Cal.App.4th at p. 1506.)
• “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
• “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.)
• 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.
• “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.)
• “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
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 924
2Levy 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)