VIA Metro. Transit v. Meck

• Citation: 620 S.W.3d 356
• Decision Date: 26 June 2020
• Docket Number: No. 18-0458,18-0458
• Parties: VIA METROPOLITAN TRANSIT, Petitioner, v. Curtis MECK, Respondent
• Court: Supreme Court of Texas

620 S.W.3d 356

VIA METROPOLITAN TRANSIT, Petitioner,

v.Curtis MECK, Respondent

No. 18-0458

Supreme Court of Texas.

Argued February 25, 2020

Opinion delivered: June 26, 2020

Rehearing Denied November 13, 2020

Wallace B. Jefferson, Alexandra W. Albright, Amy Warr, Alexander Dubose & Jefferson LLP, Austin, David A. DuBois, R. E. (Felix) Cox, Ricardo R. Reyna, Brock Person Guerra Reyna, P.C., Joshua Nicholls, San Antonio, for Petitioner.

Darby Riley, Charles Anthony Riley, Riley and Riley, Attorneys at Law, San Antonio, for Respondent.

Harold R. McKeever Jr., Janith Lewis-Bryant, Dallas Area Rapid Transit, Legal Dept., Dallas, for Amicus Curiae Dallas Area Rapid Transit.

Margaret Shelby Pearcy, Peter G. Smith, Victoria W. Thomas, Nichols Jackson Dillard Hager & Smith LLP, Dallas, for Amicus Curiae Denton County Transportation Authority.

Scott Houston, Director of Legal Services Texas Municipal League, Austin, for Amicus Curiae Texas Municipal League.

David W. Reagan, Austin, for Amicus Curiae Texas Municipal League Intergovernmental Risk Pool.

Gene L. Locke, Orrick, Herrington & Sutcliffe LLP, Houston, for Amicus Curiae The Metropolitan Transit Authority of Harris County, Texas.

Justice Boyd delivered the opinion of the Court, in which Justice Green, Justice Lehrmann, Justice Blacklock, and Justice Busby joined.

The common law has long required common carriers to exercise a "high degree of care" for their passengers, imposing on common carriers the duty to act as a very cautious, competent, and prudent person would act under the same or similar circumstances. A jury found that VIA Metropolitan Transit, a governmental entity, breached that duty to Curtis Meck, a passenger who was injured while riding a VIA bus. VIA appeals the judgment entered on that finding, arguing (1) the high-degree-of-care duty does not, or should not, apply in this case, (2) even if the high-degree-of-care duty applies, the Texas Tort Claims Act does not waive governmental immunity against suits for breach of that duty, and (3) no evidence supports the jury's finding that VIA breached the high-degree-of-care duty to Meck. We affirm.

I.Background

Created in 1977, VIA Metropolitan Transit is a public transit authority serving San Antonio and the Bexar County area. As the county's primary means of public transportation, VIA operates some 450 buses and over 100 paratransit vans carrying tens of millions of passengers a year. A statutorily authorized entity, VIA is "a public political entity" and "governmental unit" that "exercises public and essential governmental functions." TEX. TRANSP. CODE § 451.052(a), (c).

In February 2013, Curtis Meck boarded a VIA bus operated by Frank Robertson, who was new to the job and still in training. Robertson's "line instructor," Wanda Scott, stood behind him. Meck boarded the bus and grabbed onto a hanging strap. As Robertson began to pull away from the stop, another passenger shouted "Back door!," apparently to notify Robertson that a passenger was still trying to exit from the bus's rear door. Traveling just under five miles per hour, Robertson made an "abrupt stop," causing Meck to fall forward into the partition behind Robertson's seat. Meck initially complained of injuries to his neck and shoulder. After several months of treatment, he underwent surgery to repair a herniated disc

in his neck.

Meck sued VIA, asserting a claim for negligence. In an amended petition, Meck alleged that VIA was a common carrier and thus owed a duty to exercise "a high degree of care." VIA generally denied Meck's allegations and asserted governmental immunity, but it did not specifically challenge the high-degree-of-care duty and did not file a plea to the jurisdiction.

During jury selection and opening statements, Meck told the jury that the high-degree-of-care duty applied, and he questioned witnesses about VIA's standard of care under that duty. VIA did not object to these statements or questions; instead, it asserted in its opening statement that Robertson acted as "a highly cautious person." It also asked witnesses whether Robertson exercised a high degree of care. After both sides closed, however, VIA moved for a directed verdict on the ground that it is not a common carrier, is not subject to the higher negligence duty, and is immune from claims asserting breach of that duty.

The trial court denied VIA's motion and submitted the case to the jury using the higher negligence duty. Specifically, the court asked the jury whether VIA's negligence through Robertson proximately caused the occurrence and—over VIA's objection—instructed the jury that:

"Negligence," means failure to use a high degree of care, that is, failing to do that which a very cautious, competent, and prudent person would have done under the same or similar circumstances or doing that which a very cautious, competent, and prudent person would not have done under the same or similar circumstances.

"High degree of care" means that degree of care that would have been used by a very cautious, competent, and prudent person under the same or similar circumstances.

The jury found that VIA's negligence proximately caused Meck's injuries and $121,000 in damages. The trial court denied VIA's post-trial motions, applied the Texas Tort Claims Act's damages cap, and entered judgment awarding Meck $100,000. The court of appeals affirmed, 587 S.W.3d 14, 17 (Tex. App.—San Antonio 2018), and we granted VIA's petition for review.

II.High Degree of Care

Except when specifically provided otherwise, "the duties and liabilities of a carrier in this state and the remedies against the carrier are the same as prescribed by the common law." TEX. TRANSP. CODE § 5.001(a)(1). For at least 220 years (and 165 years in Texas), the common law has required common carriers to exercise a "high degree of care" toward their passengers. ¹

This duty does not make carriers strictly liable as insurers or require them to employ the "utmost," "highest," or "greatest" degree of care. Gulf, Colo. & Santa Fe Ry. Co. v. Conley , 113 Tex. 472, 260 S.W. 561, 563 (1924). But in contrast to the ordinary-care standard, we have repeatedly held that a common carrier owes a duty to its passengers to act as "a very cautious and prudent person" would act under the same or similar circumstances. Speed Boat Leasing v. Elmer , 124 S.W.3d 210, 212 (Tex. 2003) (per curiam) (quoting Dall. Ry. & Terminal Co. v. Travis , 125 Tex. 11, 78 S.W.2d 941, 942 (Tex. [Comm'n Op.] 1935) ); see Mount Pleasant Indep. Sch. Dist. v. Lindburg , 766 S.W.2d 208, 213 (Tex. 1989) ; City of Dallas v. Jackson , 450 S.W.2d 62, 63 (Tex. 1970).

VIA argues that the trial court erred by instructing the jury to apply the higher negligence duty in this case because VIA is not a common carrier. And should we disagree, VIA urges us to overrule our precedent, reject the higher negligence duty, and hold that common carriers owe only an ordinary degree of care to their passengers. We conclude that VIA is a common carrier, and we decline to consider overruling our precedent because the evidence in this case would have supported liability under the ordinary negligence duty as well as the higher negligence duty.

A. Common Carrier

Common carriers are persons or entities that are "in the business of carrying passengers and goods [and] who hold themselves out for hire by the public." Mount Pleasant , 766 S.W.2d at 213 (citing Mayhew v. McFarland , 137 Tex. 391, 153 S.W.2d 428, 431 (1941) ). To qualify as a common carrier (in contrast to a private carrier), the entity must provide transportation services to the general public, as opposed to providing such services only for particular individuals or groups. Id. at 213 (citing Chevallier v. Straham , 2 Tex. 115, 119 (1847) ). The provision of those services must be the entity's "primary function," such that the determination of whether an entity is a common carrier turns on "whether the primary purpose of the operator in question is, in fact, the business of transporting people or goods." Speed Boat Leasing , 124 S.W.3d at 211, 213.²

VIA concedes that it regularly provides transportation services to the general public for a fee, but argues it is not a common carrier because (1) it is not "in the business" of providing such services, (2) providing such services is not its "primary function," and, (3) in any event, it cannot be a common carrier because it is a governmental body that performs only governmental functions. We find each of these arguments unpersuasive.

1. "In the business"

To be a common carrier, one must be in "the business of transporting people or goods." Id. at 211. As a general principle, an entity is "doing business" if it performs "a series of similar acts for the purpose of thereby realizing pecuniary benefit, or otherwise accomplishing an object, or doing a single act for such purpose with the intention of thereby initiating a series of such acts." Mayhew , 153 S.W.2d at 431 (quoting RESTATEMENT (FIRST) OF CONFLICT OF LAWS § 167 cmt. a ( AM. LAW INST. 1934)). In the common-carrier context, we have determined whether an entity is "in the business" of providing transportation to the general public for a fee by considering whether it "hold[s] itself out for" that purpose, "would undertake such tasks if requested to do so," and was "created to operate a transport business." Mount Pleasant , 766 S.W.2d at 213.

Under this standard, VIA is indisputably in "the business of transporting people." Speed Boat Leasing , 124 S.W.3d at 211. VIA does not deny that it holds itself out for this purpose, that it serves this purpose for the general public, and that it provides its services for a fee.³ As its own representative conceded at trial, "the primary business of VIA is transporting people and their stuff around Bexar County." Nevertheless, VIA argues that it is not "in the business" of transporting the public because it does not seek to make—and in fact is statutorily prohibited from making—a "profit." We disagree.

While we...