Gomez v. Superior Court

• Decision Date: 16 June 2005
• Docket Number: No. S118489.,S118489.
• Citation: 35 Cal.4th 1125,113 P.3d 41,29 Cal.Rptr.3d 352
• Court: California Supreme Court
• Parties: Johana GOMEZ, as Administrator, etc., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; The Walt Disney Company et al., Real Parties in Interest.

29 Cal.Rptr.3d 352

35 Cal.4th 1125

113 P.3d 41

Johana GOMEZ, as Administrator, etc., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent;

The Walt Disney Company et al., Real Parties in Interest.

No. S118489.

Supreme Court of California.

June 16, 2005.

Barry B. Novack, Beverly Hills, for Petitioner.

No appearance for Respondent. Snell & Wilmer, Richard A. Derevan and Janet L. Hickson, Irvine, for Real Parties in Interest.

Gibson, Dunn & Crutcher, Scott A. Edelman and Christopher Chorba, Los Angeles, for California Attractions and Parks Association and International Association of Amusement Parks & Attractions as Amici Curiae on behalf of Real Parties in Interest.

Miles & Stockbridge, R. Wayne Pierce; Gordon & Rees and Stephen T. Waimey, Newport Beach, for Outdoor Amusement Business Association, Inc., World Waterpark Association, Inc., American Karting & Park Association, Inc., American Specialty Companies, Inc, Six Flags, Inc., International Amusement & Leisure Entertainment Industries, Inc., Western Fairs Association, California Fairs Alliance, California Fair Services Authority and Paradise Island Amusement Park as Amici Curiae on behalf of Real Parties in Interest.

MORENO, J.

The estate of a passenger who died as a result of injuries allegedly sustained while riding on the Indiana Jones attraction at Disneyland brought causes of action based upon Civil Code section 2100, which requires a "carrier of persons for reward" to "use the utmost care and diligence" for the safety of its passengers, and Civil Code section 2101, which imposes a duty upon such a carrier to provide "vehicles" that are "safe and fit for the purposes to which they are put." The superior court sustained a demurrer to these causes of action, reasoning that the operator of an amusement park ride cannot be a carrier of persons, but the Court of Appeal reversed.

For the reasons that follow, we agree with the Court of Appeal and conclude that the operator of a roller coaster or similar amusement park ride can be a carrier of persons for reward within the meaning of Civil Code sections 2100 and 2101.

FACTS AND PROCEDURAL HISTORY

On September 3, 2002, the estate of Cristina Moreno and her heirs filed a second amended complaint for wrongful death and damages against Walt Disney Company and related defendants (hereafter Disney) alleging that Moreno suffered a brain injury and eventually died after riding on the Indiana Jones amusement ride at Disneyland in Anaheim, California. Plaintiffs alleged that on June 25, 2000, Moreno was 23 years old and had traveled from her home in Spain with her new husband on their honeymoon and rode on the Indiana Jones amusement ride, during which Moreno "suffered serious injuries due to the violent shaking and stresses imposed by the ride." Plaintiffs alleged that "[a]s a proximate cause of this incident, [Moreno] sustained injuries including a subarachnoid hemorrhage and hydrocephalus which required extensive hospitalization and multiple brain surgeries. The charges alone for the initial hospitalization and air ambulance to Spain are in excess of $1,365,000.00." Moreno died on September 1, 2000.

Plaintiffs alleged that the Indiana Jones attraction has been in operation from at least 1995 and utilizes "jeep-style ride vehicles" that are "computer controlled with 160,000 different combinations. The ride is fast, turbulent, combining the ups and downs of a roller coaster with jarring jumps, drops, and unpredictable movements. The $100 million Indiana Jones Attraction at Disneyland shakes and whipsaws riders with such fury that many passengers are forced to seek first aid and in some instances hospitalization." They alleged that the ride's sudden changes in direction could cause, and did cause, bleeding in the brain "similar to what happens in `shaken-baby syndrome.'"

In addition to causes of action for premises liability, "product negligence," strict products liability, and unfair business practices, plaintiffs brought a cause of action under Civil Code section 2100 for "common carrier liability," alleging that Disney owed Moreno a "duty of utmost care and diligence" because the Indiana Jones attraction consists of a "vehicle" that was "used to transport passengers while, at the same time, providing them with entertainment and thrills." Plaintiffs also brought a cause of action under Civil Code section 2101 for "strict liability," alleging that Disney failed to "provide a vehicle safe and fit for transportation and are not excused for default in this regard by any degree of care."

Disney filed a demurrer to the second amended complaint challenging the causes of action based upon Civil Code sections 2100 and 2101. The court sustained the demurrer without leave to amend on the grounds "that amusement rides such as roller coasters are not common carriers.... Here, the primary purpose of the ride is entertainment, thrills, and the incidental consequence is that people are transported in the process."

The Court of Appeal granted plaintiffs' petition for writ of mandate and directed the superior court to overrule the demurrer on the ground that Disney acted as a common carrier in operating the Indiana Jones attraction because Disney "offers to the public to carry persons." We granted Disney's petition for review.

DISCUSSION

Carriers of persons for reward have long been subject to a heightened duty of care. (3 Harper & James, The Law of Torts (2d ed.1986) The Nature of Negligence, ? 16.14, p. 506.) This heightened duty imposed upon carriers of persons for reward stems from the English common law rule that common carriers of goods were absolutely responsible for the loss of, or damage to, such goods. (Beale, The History of the Carrier's Liability in Selected Essays in Anglo-American Legal History (Assn. of Am. Law Schools, edit., 1909) p. 148.) Carriers of goods are bailees and, at "early law goods bailed were absolutely at the risk of the bailee." (Ibid.) Thus, carriers of goods for reward were "`responsible absolutely for the goods delivered, even when lost by theft, and regardless of negligence.'" (Id. at p. 149, fn. 4.) This rule was applied in California in Agnew v. Steamer Contra Costa (1865) 27 Cal. 425, 429, 1865 WL 418, which held that a common carrier of goods (in that case a horse), "was an insurer against all injury not resulting from the act of God or the public enemies, or from the conduct of the animal."¹

The precursor to recognizing a heightened duty of care for carriers of persons came in 1680, when an English court applied the rule regarding carriers of goods to personal property that a passenger on a stagecoach had delivered to the driver, but which the driver failed to return at the end of the journey. (Lovett v. Hobbs (1680) 89 Eng.Rep. 836.) The court rejected the argument that the driver of a stagecoach could not be a common carrier regarding property brought by a passenger, stating: "[I]f a coachman commonly carry goods, and take money for so doing, he will be in the same case with a common carrier, and is a carrier for that purpose, whether the goods are a passenger's or a stranger's...." (Id. at p. 837.)

The extension of applying the heightened duty of care for carriers of goods to carriers of persons for reward "is probably of American origin, finding its earliest expression in 1839 in Stokes v. Saltonstall [(1839) 38 U.S.(13 Pet.) 181, 10 L.Ed. 115, 1839 WL 4317]." (3 Harper & James, The Law of Torts, supra, The Nature of Negligence, ? 16.14, p. 507.) In Stokes, a passenger in a stagecoach was injured when the coach was upset. The court noted that a carrier of goods was absolutely liable for the loss of or damage to such goods regardless of the cause "except the act of God, and the public enemy," but recognized that "a contract to carry passengers differs from a contract to carry goods." (Stokes, supra, 38 U.S. at p. 191.) "But although he does not warrant the safety of the passengers, at all events, yet his undertaking and liability as to them, go to this extent: that he ... shall possess competent skill; and that as far as human care and foresight can go, he will transport them safely." (Ibid.) Restating this standard, the court required the driver to act "with reasonable skill, and with the utmost prudence and caution." (Id. at p. 193.)

The rule that carriers of persons for reward must exercise great care for the safety of their passengers was adopted in California in 1859 in Fairchild v. The California Stage Company (1859) 13 Cal. 599, 1859 WL 1069, in which a passenger was injured when the stagecoach in which she was riding overturned. The court rejected the proposition that a carrier of persons for reward warrants the safety of its passengers, but held the carrier to a high duty of care: "While it is true that the proprietors of a stage-coach do not warrant the safety of passengers in the same sense that they warrant the safe carriage of goods, yet they do warrant that safety so far as to covenant for the exercise of extraordinary diligence and care to insure it; and they do this as common carriers." (Id. at p. 605.)

The California Legislature soon adopted a comprehensive scheme governing carriage. Civil Code section 2085,² which was enacted in 1872 and remains unchanged today, defines a "contract of carriage" in extremely broad terms as "a contract for the conveyance of property, persons, or messages, from one place to another." Similarly, section 2168 defines a "common carrier" in expansive terms: "Every one who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry."

Carriers of persons are treated differently under the statutory scheme depending upon whether they act gratuitously or are paid. A carrier of persons "without reward" is subject only to a duty to "use ordinary care and diligence for their safe carriage." (? 2096.) But a carrier of...