California Civil Jury Instructions (CACI) (2017)

903. Duty to Provide and Maintain Safe Equipment

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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
• Duty of Common Carrier. Civil Code section 2101.
“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
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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.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 923, 925
2Levy et al., California Torts, Ch 23, Carriers, § 23.03[5] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers (Matthew Bender)
2 California Civil Practice: Torts § 28:15 (Thomson Reuters)
COMMON CARRIERS CACI No. 903
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