Lopez v. Southern Cal. Rapid Transit Dist.

• Decision Date: 31 December 1985
• Citation: 40 Cal.3d 780,221 Cal.Rptr. 840,710 P.2d 907
• Court: California Supreme Court
• Parties: , 710 P.2d 907 Carmen LOPEZ et al., Plaintiffs and Appellants, v. SOUTHERN CALIFORNIA RAPID TRANSIT DISTRICT, Defendant and Respondent. L.A. 31917.

Page 840

221 Cal.Rptr. 840

40 Cal.3d 780, 710 P.2d 907

Carmen LOPEZ et al., Plaintiffs and Appellants, v. SOUTHERN CALIFORNIA RAPID TRANSIT DISTRICT, Defendant and Respondent.

L.A. 31917.

Supreme Court of California.

Dec. 31, 1985.

Mohi & Glasman and Steven L. Mazza, Los Angeles, for plaintiffs and appellants.

Mavridis, Conway & Sheehan, Michael Booser and Marc J. Poster, Los Angeles, for defendant and respondent.

GRODIN, Justice.

The issue presented in this case is whether the Southern California Rapid Transit District (RTD), a public corporation, has a duty to protect passengers aboard its buses from assaults by fellow passengers. We conclude that RTD does owe such a duty to its passengers and that RTD is not immune from liability under the facts alleged in plaintiffs' complaint. We therefore hold that the trial court erred in sustaining RTD's demurrer, and reverse the judgment of dismissal.

I.

Plaintiffs Carmen and Carla Lopez, Yolanda and Jose de Dios and Zenaida Arce brought this action against RTD for injuries they received when a fight broke out among passengers on board an RTD bus. Plaintiffs' first amended complaint alleges the following facts which, for purposes of this appeal, are deemed admitted. (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 746, 167 Cal.Rptr. 70, 614 P.2d 728.)

RTD is a public corporation engaged as a common carrier in the business of transporting members of the general public. While plaintiffs were on board an RTD bus as fare-paying passengers, a group of juveniles began harassing other passengers and a "violent argument" ensued. The bus driver was notified of the "altercation" but "failed to take any precautionary measures, and continued to operate the said bus." The argument eventually escalated into a "violent physical fight" and plaintiffs were injured.

Plaintiffs allege that RTD "so negligently operated, owned, maintained, supervised, entrusted, inspected, controlled and drove the bus so as to allow the passengers involved in the violent argument to engage in a violent physical fight," and that plaintiffs were injured as a direct and proximate result of RTD's negligence. Plaintiffs further allege that there was a history of violent and assaultive conduct by passengers on this particular bus route, that violent incidents occurred daily or weekly, and that RTD was fully aware of this history of violence and the risk posed to passengers riding its buses. ¹

RTD demurred to plaintiffs' first amended complaint, alleging that the complaint failed to state facts sufficient to constitute a cause of action and was fatally uncertain. In its points and authorities accompanying the demurrer, RTD argued that it had no duty to protect passengers from assaults by fellow passengers and that it was immune from liability under Government Code sections 845, 820.2 and 815.2, subdivision (b). The trial court sustained RTD's demurrer without leave to amend and entered an order of dismissal on the grounds that "RTD, a public entity, is immune from liability under the facts of this case."

II.

Since "the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff" (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 201-202, 185 Cal.Rptr. 252, 649 P.2d 894), we first consider whether RTD has a duty to protect its passengers from assaults by fellow passengers.

Civil Code section 2100 provides: "A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill." The duty imposed by section 2100 applies to public carriers as well as private carriers and requires them to do all that human care, vigilance, and foresight reasonably can do under the circumstances. (Acosta v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 19, 27, 84 Cal.Rptr. 184, 465 P.2d 72.) ² Common carriers are not, however, insurers of their passengers' safety. Rather, the degree of care and diligence which they must exercise is only such as can reasonably be exercised consistent with the character and mode of conveyance adopted and the practical operation of the business of the carrier. (Valente v. Sierra Railway Co. (1910) 158 Cal. 412, 416-417, 111 P. 95; Finley v. City & County of S.F. (1952) 115 Cal.App.2d 116, 120, 251 P.2d 687; 11 Cal.Jur.3d, Carriers, § 63, p. 426.)

It has been held that the duty imposed upon carriers by Civil Code section 2100 includes a duty to protect passengers from assaults by fellow passengers. (Terrell v. Key System (1945) 69 Cal.App.2d 682, 686, 159 P.2d 704.) In Terrell, a number of boisterous and quarrelsome passengers were engaged in a crap game on board defendant's train. ³ An argument erupted, a "general melee ensued," and the plaintiff was knocked off the moving train, suffering serious injury. No effort was made by the conductor, or any other employee of the carrier, to stop the crap game, control the boisterous conduct of the drunken participants or maintain order in any way. Reversing a judgment of nonsuit, the court held: "We can see no reason not to apply the rule of Civil Code section 2100 that 'A carrier of persons for reward must use utmost care and diligence for their safe carriage' to the recognized duty of a carrier to protect a passenger from assaults by fellow passengers. [p ] This 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 [citations], and has the ability in the exercise of that degree of care to prevent the injury [citations]" (69 Cal.App.2d at p. 686, 159 P.2d 704). The court concluded that "it was a jury question whether the conductor, with notice of the boisterous and vituperative conduct of the drunken crapshooters engaged in the particular game, should not have taken some steps to maintain or restore order before tempers got so far out of control that he was powerless to prevent the injury which occurred to plaintiff." (Id., at p. 688, 159 P.2d 704.)

The holding of Terrell is supported by the overwhelming weight of authority. Virtually all courts and all commentators who have considered the issue have concluded that a common carrier's duty to its passengers includes a duty to protect them from assaults by fellow passengers. (See, e.g., McPherson v. Tamiami Trail Tours, Inc. (5th Cir.1967) 383 F.2d 527, 531 [applying Georgia law]; McCoy v. Chicago Transit Authority (1977), 69 Ill.2d 280, 13 Ill.Dec. 690, 692-693, 371 N.E.2d 625, 627-628; Jackson v. Bi-State Transit System (Mo.App.1977) 550 S.W.2d 228, 232; Wesley v. Greyhound Lines, Inc. (1980), 47 N.C.App. 680, 268 S.E.2d 855, 859-860; Green Bus Lines v. Ocean Accident & Guaranty Corp. (1942) 287 N.Y. 309, 39 N.E.2d 251, 253; Mangini v. Southeastern Pennsylvania Transp. Au. (1975), 235 Pa.Super. 478, 344 A.2d 621, 623; Hanback v. Seaboard Coastline Railroad (D.S.C.1975) 396 F.Supp. 80, 86; City of Dallas v. Jackson (Tex.1970) 450 S.W.2d 62, 63; Rest.2d Torts, § 314A, § 315, com. c. at p. 123; Prosser & Keaton, Torts (5th ed. 1984) § 56, p. 383; 3 Michie on Carriers (1915) § 2553, p. 2015.) And in most jurisdictions, courts have imposed the same high duty of care in this regard that common carriers owe to their passengers generally. (Terrell, supra, 69 Cal.App.2d at p. 685, 159 P.2d 704; 14 Am.Jur.2d, Carriers, § 1065, p. 487; 3 Michie on Carriers, supra, § 2553, p. 2016; but cf. Rodriguez v. New Orleans Public Serv., Inc. (La.1981) 400 So.2d 884, 887.)

RTD urges that, even if private carriers have a duty to protect passengers from assaults by fellow passengers, this duty should not be imposed upon public carriers. First, noting that it operates some 220 bus lines over an area of 2,200 square miles with approximately 2,000 buses in service during peak hours, RTD contends that, "To impose [upon it] the costs of trying to prevent third-party assaults would create a colossal financial burden on the District." RTD argues that "[n]othing short of an armed security force could be expected to effectively curb criminal violence" on board its buses.

Even if budgetary constraints alone were sufficient reason to exempt a public carrier from the duties imposed upon private carriers (cf. Thompson v. County of Alameda, supra, 27 Cal.3d 741, 750, 167 Cal.Rptr. 70, 614 P.2d 728), we do not find RTD's argument persuasive. Contrary to RTD's contention, the cost and feasibility of providing an armed security force is not the issue here. Rather, the issue before us is a more general one: whether RTD, as a public carrier, has a duty to use utmost care and diligence--whatever that may require in a particular case--to protect its passengers from assaults by fellow passengers.

Finding such a duty to exist is not the functional equivalent of finding a duty to provide an armed security guard on every bus. There are a number of actions a carrier might take short of placing an armed guard on each bus which, in a given case, might be sufficient to meet the duty imposed by Civil Code section 2100. For instance, where the disorderly conduct of certain passengers threatens the safety of others, the bus driver (subject, of course, to reasonable concern for his own safety), might warn the unruly passengers to quiet down or get off the bus (see, e.g., City of Dallas v. Jackson, supra, 450 S.W.2d at p. 63; La Sota v. Philadelphia Transp. Co. (1966) 421 Pa. 386, 219 A.2d 296, 299); alert the police and summon their assistance (see, e.g., Mangini v. Southeastern Pennsylvania Transp. Au., supra, 344 A.2d at p. 623; Rodriguez v. New Orleans Public Serv., Inc., supra, 400 So.2d at p. 888); or, if necessary, eject the unruly passengers (Civ.Code, § 2188). ⁴ Carriers could provide radio communication between the bus driver and local police or...