Nunez v. Prof'l Transit Mgmt. of Tucson, Inc.

• Decision Date: 23 February 2012
• Docket Number: No. CV–11–0186–PR.,CV–11–0186–PR.
• Citation: 271 P.3d 1104,229 Ariz. 117,632 Ariz. Adv. Rep. 19
• Parties: Era C. NUNEZ, as personal representative of the Estate of LINDA JOYCE BROWN, Plaintiff/Appellee, v. PROFESSIONAL TRANSIT MANAGEMENT OF TUCSON, INC., an Arizona corporation; and Grace Zoellner, a single woman, Defendants/Appellants.
• Court: Arizona Supreme Court

229 Ariz. 117

271 P.3d 1104

632 Ariz. Adv. Rep. 19

Era C. NUNEZ, as personal representative of the Estate of LINDA JOYCE BROWN, Plaintiff/Appellee,

v.PROFESSIONAL TRANSIT MANAGEMENT OF TUCSON, INC., an Arizona corporation; and Grace Zoellner, a single woman, Defendants/Appellants.

No. CV–11–0186–PR.

Supreme Court of Arizona, En Banc.

Feb. 23, 2012.

Law Office of William D. Nelson, Esq. by William D. Nelson, Tucson, and Knapp & Roberts, P.C. by David L. Abney, Scottsdale, Attorneys for Era C. Nunez.

Snell & Wilmer L.L.P. by William N. Poorten, III, Andrew M. Jacobs, Daniel P. Wierzba, Tucson, Attorneys for Professional Transit Management of Tucson, Inc. and Grace Zoellner.

OPINION

HURWITZ, Vice Chief Justice.

¶ 1 The issue in this negligence action is whether a common carrier has the duty to exercise the highest degree of care practicable under the circumstances or rather only the duty to exercise reasonable care. We hold that the general negligence standard—reasonable care under all the circumstances—applies.

I.

¶ 2 On May 2, 2008, Linda Brown boarded a Tucson city bus operated by SunTran. Brown was confined to a wheelchair. The bus driver, Grace Zoellner, secured the wheels to the bus floor. After the bus resumed its trip, a car abruptly stopped in front of it. Zoellner braked sharply and Brown was thrown from her wheelchair, sustaining serious injuries.

¶ 3 Brown ¹ sued SunTran and Zoellner (collectively, “SunTran”), alleging that Zoellner was negligent both in driving the bus and in failing to fasten Brown's seatbelt. SunTran argued that Brown's refusal to wear a seatbelt caused her injury. SunTran also argued that Brown's injuries were caused by the negligence of the driver of the car that stopped in front of the bus.

¶ 4 SunTran requested the judge to instruct the jury that common carriers have a duty to passengers to exercise reasonable care under the circumstances. The judge rejected that instruction, instead instructing as follows:

Negligence is the failure to use reasonable care. Negligence may consist of action or inaction. Negligence is the failure to act as a reasonably careful person would act under the circumstances.

The Defendants—Professional Transit Management of Tucson, Inc. and Grace Zoellner—as common carriers of passengers for hire, are bound to exercise the highest degree of care practicable under the circumstances.

A failure to exercise the highest degree of care under the circumstances is negligence.

¶ 5 The jury awarded $186,777.87 in compensatory damages, but found Brown 30% at fault and Zoellner 70% at fault. The jury allocated no fault to the driver of the car that stopped in front of the bus.

¶ 6 The court of appeals affirmed, finding that this Court's case law required the highest degree of care instruction. Nunez v. Prof'l Transit Mgmt. of Tucson, Inc., 2 CA–CV 10–0201, 2011 WL 1998433, at *1–2 ¶¶ 1, 10 (App. May 18, 2011) (mem. decision).

¶ 7 We granted SunTran's petition for review to address the appropriate standard of care for common carriers. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12–120.24 (2003).

II.

A.

¶ 8 Under the English common law, common carriers were bailees when transporting goods, and as such were strictly liable for damage to the goods. 2 Dan B. Dobbs, Paul T. Hayden and Ellen M. Bublick, The Law of Torts § 260 at 27 (2d ed. 2011); Robert J. Kaczorowski, The Common–Law Background of Nineteenth–Century Tort Law, 51 Ohio St. L.J. 1127, 1130 n.14 (1990). But because passengers, unlike goods, had some ability to protect themselves, common law courts rejected strict liability in negligence actions by passengers. See, e.g., Aston v. Heaven, (1797) 170 Eng. Rep. 445, 445–46 (K.B.). Instead, courts imposed a duty of the highest degree of care practicable under the circumstances. See id.

¶ 9 The rationale for applying a heightened standard of care to common carriers was that passengers depended upon the carrier to protect them from hazardous conditions that were frequently encountered in the early days of public transportation. See Dobbs et al., supra, § 262 at 31. Early American decisions adopted the heightened standard of care, the so-called “common carrier rule.” See, e.g., Stokes v. Saltonstall, 38 U.S. 181, 191, 13 Pet. 181, 10 L.Ed. 115 (1839); Chicago & A.R. Co. v. Pillsbury, 123 Ill. 9, 14 N.E. 22, 23–26 (1887); Fairchild v. Cal. Stage Co., 13 Cal. 599, 605, 1859 WL 1069 (1859); Ingalls v. Bills, 50 Mass. 1, 12–13 (1845). This approach remains in widespread use. See, e.g., Fieve v. Emmeck, 248 Minn. 122, 78 N.W.2d 343, 347–48 (1956); Speed Boat Leasing, Inc. v. Elmer, 124 S.W.3d 210, 212 (Tex.2003).

¶ 10 Opinions of this Court have also long repeated the common carrier rule. See S. Pac. Co. v. Hogan, 13 Ariz. 34, 37–38, 108 P. 240, 241 (1910); Atchison, Topeka & Santa Fe Ry. Co. v. France, 54 Ariz. 140, 145, 94 P.2d 434, 436 (1939); Nichols v. City of Phoenix, 68 Ariz. 124, 130, 202 P.2d 201, 204 (1949); Napier v. Bertram, 191 Ariz. 238, 242 n. 9, 954 P.2d 1389, 1393 n. 9 (1998). On analysis, however, past Arizona decisions have been less than entirely enthusiastic in embracing the rule.

¶ 11 In Atchison, the trial court instructed the jury that a railroad was required “to exercise the highest degree of care for the safety of its passengers which is practicable under the circumstances.” 54 Ariz. at 144, 94 P.2d at 436. This Court, noting its agreement with the “majority” rule, stated that the instruction “correctly state[d] the duty of a carrier for hire to its passengers and that a failure to exercise the highest degree of care practicable under the circumstances amounts to negligence.” Id. at 144, 145, 94 P.2d at 436. Atchison nonetheless reversed a judgment in favor of the plaintiffs because the trial court failed to give the standard negligence instruction requested by the railroad, which read:

You are instructed that negligence is the omission to do something which a reasonably prudent man, guided by those considerations which usually regulate the conduct of human affairs would do; or is the doing of something which a prudent and reasonable man, guided by those same considerations would not do; it is not intrinsic or absolute, but is always relative to the surrounding circumstances of time, place and persons.

Id. at 143–44, 94 P.2d at 436.

¶ 12 This Court found that this “reasonably prudent man” instruction “correctly states the law,” and that failure to give it “tended to mislead the jury, by failing to point out sufficiently to it the limitations on the care required ... of a common carrier.” Id. at 145, 94 P.2d at 437. The Court emphasized that “the duty of a prudent and reasonable man is ... always relative to the surrounding circumstances of time, place and persons, and this applies to common carriers, as it does to all others.” Id.

¶ 13 Atchison is hardly a model of analytical consistency. On the one hand, the Court found that the “highest degree of care” instruction “correctly” stated a common carrier's duty, but on the other, reversed for failure to give an ordinary “reasonable care” negligence instruction. Atchison's ruling could be read as merely fact-specific. See id. (“Under some circumstances this failure to give the suggested instruction, even though, as we have said, it correctly states the law, might not have been prejudicial, but we think in the present case it was.”). But one week later, in another personal injury action by a passenger against a railroad, this Court cited the instruction requested by the railroad in Atchison as “an excellent definition of negligence.” S. Pac. Co. v. Buntin, 54 Ariz. 180, 185, 94 P.2d 639, 641 (1939).

¶ 14 Subsequent opinions of this Court reciting the “highest degree of care” language did not involve jury instructions. See Napier, 191 Ariz. at 243–44, 954 P.2d at 1394–95 (discussing whether common carriers have a duty to carry uninsured motorist insurance); Nichols, 68 Ariz. at 129, 135–39, 202 P.2d at 204, 208–11 (discussing proximate cause). Indeed, no Arizona opinion “holds that it is reversible error to instruct the jury that a common carrier merely owes a duty of reasonable care toward its passengers.” Block v. Meyer, 144 Ariz. 230, 234, 696 P.2d 1379, 1383 (App.1985). Citing Atchison, Block found “no error in the trial court's failure to instruct the jury that a common carrier owes its passengers the highest standard of care practicable, or words to that effect.” Id. The court of appeals cited with approval Prosser's comment that “[t]echnically the ‘high degree’ instruction is incorrect.” Id. at 236, 696 P.2d at 1385 (citing William L. Prosser, Law of Torts § 34 at 181 (4th ed. 1971), and Restatement (Second) of Torts (“Second Restatement”) § 314 (1965)).

¶ 15 Seventeen years later, the court of appeals upheld a “trial court's refusal to apply the common carrier doctrine because ... it adds no useful element to the ordinary negligence standard of reasonable care under the circumstances.” Lowrey v. Montgomery Kone, Inc., 202 Ariz. 190, 195 ¶ 20, 42 P.3d 621, 626 (App.2002). Lowrey found persuasive the reasoning of other courts that rejected the common carrier doctrine, id. at 196 ¶¶ 21–23, 42 P.3d at 627 (citing Bethel v. N.Y.C. Transit Auth., 92 N.Y.2d 348, 681 N.Y.S.2d 201, 703 N.E.2d 1214, 1215–16 (1998) and Sebastian v. District of Columbia, 636 A.2d 958, 962 (D.C.1994)), noting that

an attempt to explain the common carrier doctrine to a jury would be riddled with the prospect of confusion.... To hold that a common carrier must exert more than reasonable care under the circumstances not only serves no useful purpose; it is a hard concept to make sense of and one very likely to be misunderstood.

Id. at 196 ¶ 23, 42 P.3d at 627. The court of appeals therefore concluded “that the time has come to discard the notion that a common carrier bears a higher duty toward its passengers than that of reasonable care under all of the...