Lopez v. Southern California Rapid Transit Dist.

CourtCalifornia Court of Appeals
Writing for the CourtJOHNSON; SCHAUER, P.J., and THOMPSON
Citation153 Cal.App.3d 1135,200 Cal.Rptr. 779
Decision Date30 March 1984
PartiesCarmen LOPEZ, et al., Plaintiffs and Appellants, v. SOUTHERN CALIFORNIA RAPID TRANSIT DISTRICT, Defendant and Respondent. Civ. 69977.

Page 779

200 Cal.Rptr. 779
153 Cal.App.3d 1135
Carmen LOPEZ, et al., Plaintiffs and Appellants,
v.
SOUTHERN CALIFORNIA RAPID TRANSIT DISTRICT, Defendant and Respondent.
Civ. 69977.
Court of Appeal, Second District, Division 7, California.
March 30, 1984.

For Opinion on Hearing, see 221 Cal.Rptr. 840, 710 P.2d 907.

Page 781

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

Mavridis, Conway & Sheehan and Michael C. Booser, Los Angeles, for defendant and respondent.

JOHNSON, Associate Justice.

This case presents a difficult and important issue. Because the Southern California Rapid Transit District is a public corporation, must the victims of criminal violence on board its buses be denied recovery for the RTD's breach of duty to "use the utmost care and diligence for their safe carriage"? (Civ.Code, § 2100.) We hold RTD is not immunized from fulfilling the same duty which would be imposed on a private company operating those same buses.

FACTS AND PROCEEDINGS BELOW

Plaintiffs appeal from a judgment dismissing their complaint following the sustaining of defendant's demurrer without leave to amend.

For purposes of appeal we accept as true the properly pleaded factual allegations of the complaint. (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 746, 167 Cal.Rptr. 70, 614 P.2d 728.) Furthermore, the allegations of the complaint must be liberally construed with a view to attaining substantial justice among the parties. (Code Civ.Proc., § 452; King v. Central Bank (1977) 18 Cal.3d 840, 843, 135 Cal.Rptr. 771, 558 P.2d 857.)

Plaintiffs allege the following facts. Defendant, Southern California Rapid Transit District, (hereafter "RTD") is a public corporation engaged in business as a common carrier for hire transporting members of the general public in Los Angeles County.

Carmen and Carla Lopez, Yolanda and Jose De Dios and Zenaida Arce were riding as paying passengers on one of defendant's buses at about 6:40 in the evening near LaBrea Avenue and Venice Boulevard in Los Angeles. At that time a fight broke out among some of the passengers on the bus. The driver of the bus knew that the fight was taking place but "failed to take any precautionary measures." The five plaintiffs sustained injuries as a result of the fight.

Plaintiffs further allege the RTD knew violent incidents occurred daily or weekly on board its buses and that there had been previous assaults on passengers and operators of buses on this particular route. Before this particular altercation broke out, the operator was aware that a group of juveniles had boarded the bus and were harassing other passengers. 1

Page 782

Defendant demurred to plaintiffs' first amended complaint on the ground, inter alia, that it failed to state a cause of action; specifically that the RTD owed no duty of care to plaintiffs and that it is immune from liability by reason of Government Code section 845. 2 The trial court sustained the demurrer without leave to amend on the ground the RTD is immune from liability under the facts of this case by reason of section 845.

DECISION

I. RTD OWED A DUTY OF CARE TO PLAINTIFFS.

We first consider defendant's claim that it had no duty to protect plaintiffs from an assault and battery on board its bus. No question of statutory immunity arises until it is determined that the defendant otherwise owes a duty of care to the plaintiffs and thus would be liable in the absence of immunity. (Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298, 307, 191 Cal.Rptr. 704.)

The duty owed by a common carrier to its passengers is set forth in Civil Code section 2100:

"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."

Section 2100 has been held to impose a duty on a common carrier to protect its passengers from assault by fellow passengers. (Terrell v. Key System (1945) 69 Cal.App.2d 682, 159 P.2d 704.) There the court stated:

"The duty of a carrier of persons for reward is codified in Civil Code, section 2100. In general, such carriers must exercise the utmost care and diligence for the safety of their passengers consistent with the character and mode of conveyance adopted and the practical operation of the carrier's business. (4 Cal.Jur. § 87, pp. 931-934.) While there is some diversity among the authorities in other jurisdictions as to the degree of care required of carriers for hire to protect their passengers from the assaults of fellow passengers, in a large majority of American states whose courts have passed on the question, it is held that the carrier is required to exercise the same high degree of care for that purpose as it is bound to generally. (Citations omitted.) ... We can see no reason not to apply the rule of Civil Code, section 2100 that 'A carrier of persons for reward must use the utmost care and diligence for their safe carriage' to the recognized duty of a carrier to protect a passenger from assaults by fellow passengers." (Id. at pp. 684-686, 159 P.2d 704.)

The Terrell opinion makes it clear that section 2100 did not enact a rule of strict liability.

"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 ... and has the ability in the exercise of that degree of care to prevent the injury." (Id. at p. 686, 159 P.2d 704, citations omitted.)

The complaint in the case at bar meets the pleading requirement of Terrell. It alleges that the driver of the bus knew that a group of juveniles had boarded the bus and were harassing the passengers; the RTD knew violent incidents occurred on its buses with regularity; and knew there had been previous assaults on passengers on this particular route.

Furthermore, a special relationship existed between the plaintiffs and the RTD which, while not precluding the application of sovereign immunity principles, has an important impact on their application.

Page 783

In Johnson v. County of Los Angeles, supra, 143 Cal.App.3d 298, 308, 191 Cal.Rptr. 704, we alluded to the common law duty to control the conduct of another when the defendant stands in a special relationship to the foreseeable victim of such conduct. The carrier-passenger relationship is such a special relationship. (Prosser, Law of Torts, supra, at pp. 174-175, fn. 68, Rest., Torts 2d §§ 314A, 315 and Comment at p. 123, and see Terrell v. Key, supra.)

The relationship between the RTD and its passengers is distinguishable from the relationship between the police and the public. A law enforcement officer's duty to protect the citizenry is a general duty owed to the public as a whole. (South v. Maryland (1856) 59 U.S. 396, 403, 15 L.Ed. 433.) The victim of a crime that the police might have prevented through reasonable diligence cannot recover because, absent a special relationship creating a special duty, the police do not owe the victim a duty of care. (See, e.g., Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 9-10, 120 Cal.Rptr. 5 and Note, Police Liability For Negligent Failure To Prevent Crime (1981) 94 Harv.L.Rev. 821, 824.) In contrast, the RTD's duty is to a specific group: its passengers. These passengers have accepted RTD's offer of transportation and have placed themselves in the care and custody of the RTD. (Cf. Riley v. Davis (1922) 57 Cal.App. 477, 481, 207 P. 699; Grier v. Ferrant (1944) 62 Cal.App.2d 306, 310-311, 144 P.2d 631.) And while the risk of crime is common to all citizens, the danger is enhanced for bus passengers who may be, in effect, sealed in a moving steel cocoon. They have no say as to who else may be admitted onto the bus and they may have no means of avoiding another passenger bent on attack. The means of summoning help and the means of escape may be in the exclusive control of the bus driver.

We conclude the plaintiffs' dependence on the RTD for their safety gives rise to a special relationship between the parties in the case at bar. (Cf. Mann v. State of California (1977) 70 Cal.App.3d 773, 779-780, 139 Cal.Rptr. 82; Rest. 2d Torts (1965) § 314A, com. b, c; Fleming, Law of Torts (4th ed. 1971) p. 143.) 3 We recognize that another division of this court has held no special relationship exists between a common carrier and its passengers. (Hernandez v. Southern California Rapid Transit District (1983) 142 Cal.App.3d 1063, 1067, 191 Cal.Rptr. 436.) In that case plaintiff brought an action for wrongful death against the RTD alleging that her son, a passenger on an RTD bus, was killed by another passenger on the bus. Without discussing or citing any authority on the issue, the court simply stated that plaintiff "did not and cannont [fn] allege the existence of a 'special relationship' that would take her cause of action outside the breadth of Government Code section 845." (Ibid., footnote omitted.) For the reasons set forth above, we disagree with the holding in Hernandez. The authorities we have cited firmly establish the existence of a special relationship between a common carrier and its passengers which gives rise to a duty on the part of a carrier to protect a passenger from assaults by fellow passengers.

As noted in Terrell, this duty only arises if two conditions are met. First, in the exercise of reasonable skill and the utmost care and diligence the carrier knew or should have known of conditions from which it could reasonably conclude that an assault on a passenger may occur. Second, in exercising the degree of care imposed by section 2100 the carrier has the ability to prevent the injury. (69 Cal.App.2d at p. 686, 159 P.2d 704.)

Page 784

II. RTD IS NOT IMMUNE FROM LIABILITY BECAUSE OF GOVERNMENT CODE SECTION 845.

A. The Facts Alleged in the Complaint Do Not Give Rise to the Defense of Immunity From Failing to...

To continue reading

Request your trial
2 practice notes
  • Casey v. Geiger
    • United States
    • Superior Court of Pennsylvania
    • October 4, 1985
    ...have begun to expand the scope of the "special relationship" exception. See Lopez v. Southern California Rapid Transit District, 153 Cal.App.3d 1135, --- P.2d ----, 200 Cal.Rptr. 779 (1984) (carrier/passenger; plaintiffs assaulted by fellow bus passengers); Comastro v. Village of Rosemont, ......
  • Adams v. New York City Transit Authority
    • United States
    • New York Court of Appeals
    • May 2, 1996
    ...is another factor that has been mentioned in support of the absolute liability rule (see, Lopez v. Southern Cal. R.T. Dist., 153 Cal.App.3d 1135, 200 Cal.Rptr. 779, revd. on other grounds, 40 Cal.3d 780, 221 Cal.Rptr. Page 515 [666 N.E.2d 220] 840, 710 P.2d [88 N.Y.2d 122] 907; Derwort v. L......
2 cases
  • Casey v. Geiger
    • United States
    • Superior Court of Pennsylvania
    • October 4, 1985
    ...have begun to expand the scope of the "special relationship" exception. See Lopez v. Southern California Rapid Transit District, 153 Cal.App.3d 1135, --- P.2d ----, 200 Cal.Rptr. 779 (1984) (carrier/passenger; plaintiffs assaulted by fellow bus passengers); Comastro v. Village of Rosemont, ......
  • Adams v. New York City Transit Authority
    • United States
    • New York Court of Appeals
    • May 2, 1996
    ...is another factor that has been mentioned in support of the absolute liability rule (see, Lopez v. Southern Cal. R.T. Dist., 153 Cal.App.3d 1135, 200 Cal.Rptr. 779, revd. on other grounds, 40 Cal.3d 780, 221 Cal.Rptr. Page 515 [666 N.E.2d 220] 840, 710 P.2d [88 N.Y.2d 122] 907; Derwort v. L......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT