California Civil Jury Instructions (CACI)
903. Duty to Provide and Maintain Safe Equipment
Common carriers must use the highest care in constructing, servicing, inspecting, and maintaining their vehicles and equipment for transporting passengers [or property].
A common carrier is responsible for a defect in its vehicles and equipment used for transporting passengers [or property] if the common carrier:
(a) Created the defect; or
(b) Knew of the defect; or
(c) Would have known of the defect if it had used the highest care.
Common carriers must keep up with modern improvements in transportation. While they are not required to seek out and use every new invention, they must adopt commonly accepted safety designs and devices in the vehicles and equipment they use for transporting passengers [or property].
New September 2003
Directions for Use
To correct the impression that a carrier is absolutely liable for unsafe equipment, this instruction should be given together with instructions stating that a common carrier does not guarantee the safety of its passengers and that the level of care is the highest that reasonably can be exercised consistent with the mode of transportation used and the practical operation of its business as a carrier (see CACI No. 902, Duty of Common Carrier). (Gradus v. Hanson Aviation, Inc. (1984) 158 Cal.App.3d 1038, 1049–1050 [205 Cal.Rptr. 211].)
Sources and Authority
- Civil Code section 2101 provides: “A carrier of persons for reward is bound to provide vehicles safe and fit for the purposes to which they are put, and is not excused for default in this respect by any degree of care.”
- “The duty of care imposed on a common carrier of passengers includes the duty to furnish safe facilities for their passage.” (Cooper v. National Railroad Passenger Corporation (1975) 45 Cal.App.3d 389, 395 [119 Cal.Rptr. 541], internal citations omitted, disapproved on other grounds in Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 401 [143 Cal.Rptr. 13, 572 P.2d 1155].)
- Failure to give an instruction on Civil Code section 2101 may not be error where an instruction on the “utmost care” standard is given. (Powell v. Dell-Air Aviation, Inc. (1968) 268 Cal.App.2d 451, 457–458 [74 Cal.Rptr. 3].)
- The Supreme Court found error where an instruction omitted the duty to inspect: “An owner is bound to use the utmost care and diligence in the maintenance of elevators. In the fulfillment of this obligation something more than regular and frequent inspections is required. Perfunctory inspections, although regularly and frequently made, would not meet the obligation appellant owed to respondents. In order to fulfill the duty imposed upon it by law appellant was required to use due care in servicing, inspecting and maintaining the elevator and all the appliances appurtenant thereto. The instruction erroneously failed to include this requirement.” (Brown v. George Pepperdine Foundation (1943) 23 Cal.2d 256, 261 [143 P.2d 929], internal citations omitted.)
- “The [equipment] must, therefore, under the standard of utmost care required of a carrier, be constructed, maintained and operated with the purpose and design to prevent injury . . . .” (Vandagriff v. J.C. Penney (1964) 228 Cal.App.2d 579, 582 [39 Cal.Rptr. 671].)
- Notice of defect is required where the carrier did not create dangerous condition: “In our view, the high degree of care required of a common carrier might impose a greater duty to inspect and thus make notice or knowledge more easily established, but the concept of the carrier’s legal responsibility does not exclude the factor of notice or knowledge. The weight of authority supports the proposition that, in cases such as the instant one, actual or constructive notice is a prerequisite to the carrier’s liability.” (Gray v. City and County of San Francisco (1962) 202 Cal.App.2d 319, 330–331 [20 Cal.Rptr. 894].)
- Common carriers “must keep pace with science and art and modern improvement in their application to the carriage of passengers.” (Greyhound Lines, Inc. v. Superior Court (1970) 3 Cal.App.3d 356, 359 [83 Cal.Rptr. 343], citing Treadwell v. Whittier (1889) 80 Cal. 574, 592, 600 [22 P. 266].)
- In Treadwell, the court approved of a jury instruction stating that while elevator operators “were not required to seek and apply every new invention, they must adopt such as are found by experience to combine the greater safety with practical use.” The court said the instruction “is but a fair deduction from the rule that the defendants must use the utmost care and diligence to carry safely those who ride in their [conveyance] . . . .” (Treadwell, supra, 80 Cal. at pp. 599–600.) The court held that common carriers “are bound for defects in the vehicles which they furnish, which might have been discovered by the most careful examination . . . .” (Id. at p. 595.)
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 923, 925
2 Levy et al., California Torts, Ch 23, Carriers, § 23.03 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers (Matthew Bender)
2 California Civil Practice: Torts (Thomson West) § 28:15