Straley v. Idaho Nuclear Corp.

• Decision Date: 03 August 1972
• Docket Number: No. 11000,11000
• Citation: 500 P.2d 218,94 Idaho 917
• Parties: William D. STRALEY, Plaintiff-Appellant, v. IDAHO NUCLEAR CORPORATION, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 218

500 P.2d 218

94 Idaho 917

William D. STRALEY, Plaintiff-Appellant, v. IDAHO NUCLEAR CORPORATION, Defendant-Respondent.

No. 11000.

Supreme Court of Idaho.

Aug. 3, 1972.

Denman & Reeves, Idaho Falls, for plaintiff-appellant.

Albaugh, Bloem, Smith & Pike, Idaho Falls, for defendant-appellee.

BAKES, Justice.

This appeal resulted from an order granting summary judgment in favor of the Idaho Nuclear Corporation, hereinafter referred to as respondent, against William D. Straley, hereinafter referred to as appellant. Appellant had instituted this action to recover damages for personal injuries sustained while riding in one of respondent's buses. The primary issue for disposition on appeal is whether the district court properly granted summary judgment in favor of respondent. For reasons articulated below, we conclude that the district court erred, and that the case must be reversed and remanded for trial.

Prior to examining the facts, it is helpful to reiterate the pertinent general principles on summary judgments and this court's guidelines in determining the propriety of an order granting summary judgment issued by the district court. Summary judgment is properly granted when 'the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' I.R.C.P. Rule 56(c). E.g. Bryan and Co. v. Kieckbusch, 94 Idaho 116, 482 P.2d 91 (1971). In determining whether any issue of material fact is in dispute, it is well settled that the facts should be liberally construed in favor of the party against whom summary judgment is sought. E.g. Jack v. Fillmore, 85 Idaho 36, 375 P.2d 321 (1962); Crane v. Banner, 93 Idaho 69, 455 P.2d 313 (1969). In light of this rule, this court has held that summary judgment is improper when a conflict in affidavits respecting issues of fact exists, or when the relevant pleadings, depositions and affidavits raise any question of credibility of witnesses. See respectively Hansen v. Howard O. Miller, Inc., 93 Idaho 314, 460 P.2d 739 (1969); Merrill v. Duffy Reed Construction Co., 82 Idaho 410, 353 P.2d 657 (1960). On the other hand, a mere scintilla of evidence will not create a genuine issue of material fact sufficient to preclude summary judgment. E.g. Jephson v. Ambuel, 93 Idaho 790, 473 P.2d 932 (1970); Petricevich v. Salmon River Canal Co., 92 Idaho 865, 452 P.2d 362 (1969) (rejecting the 'slightest doubt' test.). On appeal from an order granting summary judgment, this court must construe the evidence presented to the district court liberally in favor of the party opposing the order and accord him 'the benefit of all inferences which might be reasonably drawn.' Rawlings v. Layne & Bowler Pump Co., 93 Idaho 496, 465 P.2d 107 (1970).

The facts, pertinent to this appeal, can be summarized as follows: Respondent operates a bus line, pursuant to contract with the United States Atomic Energy Commission, to transport 'authorized personnel' to and from the National Reactor Testing Station (NRTS) and various locations in the Idaho Falls-Pocatello area. Respondent operates along fixed routes some 85 buses, all owned by the federal government. According to respondent, only certain employees of the federal government, Atomic Energy Commission contractors and subcontractor employees, Navy personnel and occasional business invitees are authorized to utilize the bus services. However, appellant notes in his affidavits and deposition that he has been many persons who are not employed at the site ride on respondent's buses on various occasions.

On his way to work on March 11, 1969, appellant boarded one of respondent's buses near his home in Idaho Falls. During the trip to the NRTS facility, appellant occupied the rear seat of the bus (allegedly the only one vacant when appellant boarded). Sometime during the trip, appellant claims the bus hit 'something' and he 'sailed off his seat and hit the ceiling' of the bus, resulting in injuries which caused him to suffer serious back, neck and arm pains. Appellant reported the incident and his consequent injuries to the attendant at the NRTS dispensary shortly after arriving at the site.

Appellant was unable to estimate the speed the bus was travelling when he was thrown from his seat, but he did recall that the road was extremely bumpy and replete with pot-holes. Appellant also remembered that after the jolt he had to re-secure the straps which held the bus seat in place.

As a consequence of these injuries, appellant commenced this action in the district court, complaining that respondent 'operated its bus on which the (appellant) was riding in such a manner that it abruptly and without any warning whatever to the (appellant) threw (appellant) to the ceiling, thereby causing (appellant's) head to strike the ceiling of the bus. . . .'

Finding no express allegation in appellant's complaint that it was negligence, and claiming that there was no evidence of any such negligence, respondent moved for summary judgment to dismiss appellant's action. After examining affidavits and depositions submitted by both sides as well as reviewing the pleadings, the district court granted respondent's motion. In support of its order the court noted:

'(T)he defendant is a contract carrier, but even if the defendant was a common carrier there was no showing of any negligence on the part of the defendant and there was (sic) not sufficient facts presented to sustain a verdict for the plaintiff against the defendant in said action, and there was (sic) not sufficient facts or conclusions presented to the Court even to invoke the doctrine of res ipsa loquitur, and on this showing defendant has established that plaintiff has no cause of action and that such showing has not been successfully controverted by the plaintiff. . . .' (Clk.Tr. p. 147).

From the court's order, appellant filed this appeal.

From our examination of the record, we disagree with two of the conclusions of the district court, and therefore find that the order of the district court granting summary judgment was error. First, from undisputed facts in the record we conclude that respondent, while it may not be classifiable as a common carrier under public utility law, nonetheless maintains enough of the characteristics normally found in a common carrier to be held to the higher standard of care ascribed to such a carrier. Secondly, the allegation of respondent's possible negligence in appellant's somewhat indefinite pleadings and the affidavits and depositions justify the invoking of the doctrine of res ipsa loquitur. As mentioned above, respondent does not fit within the traditional definition of 'common carrier.' Generally defined, a 'common carrier' is one 'who, by virtue of his calling and as a regular business, undertakes to transport persons or commodities from place to place, offering his services of such as may choose to employ him and pay his charges.' Sanger v. Lukens, 24 F.2d 226, 228 (D.C.Idaho 1927), rev'd on other grounds, 26 F.2d 855 (9th Cir.1928). See 13 Am.Jur.2d, Carriers § 2, pp. 560-62 (1964) (defining, common carrier as 'one who holds himself out to the public as engaged in the business of transporting persons or property from place to place for compensation, offering his services to the public generally.').

Different considerations shape the definition of private or contract carrier: ¹

'A private carrier is one who, without making it a vocation, or holding himself out to the public as ready to act for all who desire his services, undertakes, by special agreement in a particular instance only, to transport property or persons from one place to another either gratuitously or for hire.' 13 Am.Jur.2d, Carriers, § 8, p. 565.

Availability to the public without discrimination appears to be the main feature distinguishing a private and common carrier. Annot. 112 A.L.R. 89, 90 (1938). See Cushing v. White, 101 Wash. 172, 172 P. 229 (1918); Horluck Transportation Co. v. Eckright, 56 Wash.2d 218, 352 P.2d 205 (1960); Hunt v. Clifford, 152 Conn. 540, 209 A.2d 182 (1965). Respondent does not squarely fall within the general definition of 'common carrier' because only 'authorized personnel'-i.e., certain employees of the federal government, employees of government contractors, and government guests and invitees are generally permitted to use the buses to travel to the site. However, respondent's relationship to each of its individual passengers such as appellant does retain enough of the characteristics of a common carrier to raise an issue concerning whether or not respondent should be held to the higher standard of care generally ascribed to common carriers. Respondent held itself out generally to all members of the public who were travelling to the AEC site as a carrier of persons to and from that site for hire. While the scope of those persons eligible to travel to the AEC site is more restricted than the public in general to whom a common carrier must ordinarily provide service, the scope of persons served by respondent is much broader than the usual case of private carriage. Operationally respondent is much like any municipal bus line and it resembles a municipal bus line in its relationship to its passengers, specifically in the case of appellant. It provided appellant transportation to and from his work for a regulated fare as an alternative means to driving his own automobile, participating in a car pool, or any other means which appellant might find satisfactory to him. Appellant boards and deboards the bus much as he would a public conveyance, i.e., at fixed bus stops. Appellant can purchase his tickets at various spots much like he might purchase a ticket book for municipal conveyances. Respondent on the average runs 85 buses over some 58 routes per day. These buses have fixed termini, routes and stops. Any restriction on...