California Civil Jury Instructions (CACI) (2017)

908. Duty to Protect Passengers From Assault

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908.Duty to Protect Passengers From Assault
[Name of plaintiff] claims that [name of defendant] was negligent in failing
to prevent an attack by another. To establish this claim, [name of
plaintiff] must prove both of the following:
1. That [name of defendant] knew or, by using the highest care,
should have known that a passenger was reasonably likely to
attack another passenger; and
2. That by using the highest care, [name of defendant] could have
prevented or reduced the harm from the attack.
New September 2003
Directions for Use
This instruction must be used in conjunction with the instructions in the negligence
series.
Sources and Authority
• Restatement Second of Torts, section 315 states:
As a general rule, one owes no duty to control the conduct of another, nor to
warn those endangered by such conduct. Such a duty may arise, however, if
(a) a special relation exists between the actor and the third person
which imposes a duty upon the actor to control the third person’s
conduct, or
(b) a special relation exists between the actor and the other which
gives the other a right of protection.
• The Supreme Court has held that “[t]he relationship between a common carrier
and its passengers is . . . a special relationship.” (Lopez v. Southern Cal. Rapid
Transit Dist. (1985) 40 Cal.3d 780, 789 [221 Cal.Rptr. 840, 710 P.2d 907].)
• The common carrier standard of “utmost care” applies to the duty of a carrier to
protect a passenger from assaults by fellow passengers. (Terrell v. Key System
(1945) 69 Cal.App.2d 682, 686 [159 P.2d 704].) However, the duty can only
arise if “in the exercise of the required degree of care the carrier has or should
have knowledge of conditions from which it may reasonably be apprehended
that an assault on a passenger may occur, and has the ability in the exercise of
that degree of care to prevent the injury.” (Ibid., internal citations omitted.)
• The Lopez court stated the standard of care as follows: “[C]arriers are not
insurers of their passenger’s safety and will not automatically be liable,
regardless of the circumstances, for any injury suffered by a passenger at the
hands of a fellow passenger. Rather, a carrier is liable for injuries resulting from
an assault by one passenger upon another only where, in the exercise of the
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required degree of care, the carrier has or should have knowledge from which it
may reasonably be apprehended that an assault on a passenger may occur, and
has the ability in the exercise of that degree of care to prevent the injury.”
(Lopez, supra, 40 Cal.3d at p. 791, internal citation omitted.)
• There is no liability when a sudden assault occurs with no warning. (City and
County of San Francisco v. Superior Court (1994) 31 Cal.App.4th 45, 49 [36
Cal.Rptr.2d 372].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 930, 931
2Levy et al., California Torts, Ch. 23, Carriers, § 23.03[3] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 109, Carriers (Matthew Bender)
2A California Points and Authorities, Ch. 33, Carriers (Matthew Bender)
2 California Civil Practice: Torts (Thomson West) § 28:16
909–999. Reserved for Future Use
CACI No. 908 COMMON CARRIERS
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