Torts--Standard of Care for Common Carrier--Ordinary Negligence

Nunez v. Professional Transit Management, 229 Ariz. 117, 271 P.3d 1104 (February 23, 2012) (Vice Chief Justice Hurwitz)


Plaintiff, confined to a wheelchair, boarded a Tucson city bus operated by Sun Tran. The driver secured the wheels of plaintiff's wheelchair and then began driving. A subsequent sudden stop occasioned by another car stopping quickly in front of the bus caused plaintiff to fly out of her wheelchair causing serious injuries. Plaintiff alleged the driver was negligent in not putting a seat belt on her and in coming to a sudden stop. Defendant countered that the plaintiff refused the seat belt and the driver of the other car was at fault, not the bus driver. The trial court rejected defendant's argument that it was only required to exercise "reasonable care" under the circumstances and adopted plaintiff's argument that a common carrier owes "the highest degree of care" under the circumstances. The jury awarded $186,777.87 in damages and apportioned 30% fault against the plaintiff and 70% against the bus driver. The Court of Appeals affirmed but the Arizona Supreme Court vacated the judgment.

First the Supreme Court noted that the common carrier rule requiring the "highest degree of care" originated in England in the early days of public transportation. The court noted that times have changed and indeed most Arizona cases which have recognized this to be the standard in Arizona have done so reluctantly. Then the court pointed out that while the Restatement finds the special relationship between a common carrier and its passengers requires broader duties of the common carrier, it does not require more than ordinary reasonable care in fulfilling those duties. A common carrier must exercise reasonable care to avoid harm from risks created by the individual at risk as well as third parties, but under the Restatement, reasonable and not the highest degree of care is all that is required.

The court rejected plaintiff's argument that the higher degree of care should be required because passengers entrust their safety to the common carrier. The court noted there are many other circumstances where people entrust their safety to others, e.g., to a doctor performing surgery, but in those other situations only reasonable care is required. Further the court found that attempting to explain the higher standard to a jury would be "riddled with the prospect of confusion."

Finally, plaintiff's claim that abolishing the higher standard was tantamount to eliminating plaintiff's claim in violation of the Arizona Constitution's anti-abrogation clause was rejected. The court noted that it has repeatedly held that as long as a claimant is left "a reasonable possibility of obtaining legal redress" the anti-abrogation clause is not violated. Here the plaintiff and other passengers still have a reasonable opportunity to seek redress against common carriers for their negligence. "Just as the common law is court-made law based upon the circumstances and conditions of the time, so can the common law be changed by the court when conditions and circumstances change."

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