WPI 100.01 Common Carrier—Duty to Passengers

Use the first bracketed paragraph only if there is no disputed factual issue as to whether the defendant is a common carrier. If there is a factual issue whether the defendant comes within the legal definition of common carrier, the jury must be given an instruction defining common carrier. See Comment to WPI 100.02 (Common Carrier—Definition).

Use this instruction whether the allegations of negligence relate to the operation of the vehicle or its construction or maintenance. Use this instruction whether the carrier-passenger relationship has been established or is an issue for the jury.

Do not use the bracketed last paragraph unless the circumstances of the particular case call for a negative warning to the jury.

Do not use WPI 10.01 (Negligence—Adult—Definition) with this instruction unless the case involves multiple defendants, some of whom are not common carriers, or unless there is a factual issue as to the defendant's status as a common carrier. If WPI 10.01 (Negligence—Adult—Definition) is given, care must be taken to insure that the jury understands which standard of care the jury should apply to each defendant.

Use WPI 100.09 (Passenger—Definition—When Status Begins and Terminates) if the carrier-passenger relationship is an issue for the jury.

Use WPI 100.04 (Common Carrier—Duty to Protect Passengers from Assault or Intentional Harm by Employees) for intentional torts by employees of the carrier.

The duty of a common carrier to safeguard passengers from injury requires the carrier to exercise the highest degree of care consistent with the practical operation of its business or its type of transportation. See, e.g., Price v. Kitsap Transit, 125 Wn.2d 456, 465, 886 P.2d 556 (1994); Parrilla v. King Cnty., 138 Wn.App. 427, 442, 157 P.3d 879 (2007) (“a common carrier of passengers owes the highest degree of care to protect its passengers from harm”). The duty is non-delegable to an agent, such as a contracted repair company. Knutson v. Macy's West Stores Inc., 1 Wn.App.2d 543, 546–47, 406 P.3d 683 (2017) (citing Restatement (Second) of Agency § 214 and comment “a” thereto with approval).

A common carrier is not an insurer of its passengers' safety. Walker v. King Cnty. Metro, 126 Wn.App. 904, 908, 109 P.3d 836 (2005); Tortes v. King Cnty., 119 Wn.App. 1, 7–8, 84 P.3d 252 (2003). The mere fact that there was an accident or injury to a passenger is not sufficient to raise a presumption that the carrier was negligent. Kaiser v. Suburban Transp. Sys., 65 Wn.2d 461, 398 P.2d 14 (1965), amended 65 Wn. 2d 461, 401 P.2d 350 (1965); Tortes, 119 Wn.App. at 7–8. “A carrier is not liable for injuries resulting from ordinary jolts and jerks, necessarily incident to the mode of transportation, which are not the result of negligence.” Gentry v. Greyhound Corp., 46 Wn.2d 631, 633, 283 P.2d 979 (1955); Walker, 126 Wn.App. at 908.

A carrier's “highest degree of care” is owed only to its passengers, not to third parties, such as other motorists. Parrilla, 138 Wn.App. at 442. The heightened standard is of no avail to a motorist whose car collides with a bus. Parrilla, 138 Wn.App. at 442–43.

The duty owed by a common carrier to a prospective passenger who has not attained passenger status is the duty of ordinary care. Evans v. Yakima Valley Transp. Co., 39 Wn.2d 841, 239 P.2d 336 (1952). For a discussion of whether a plaintiff qualifies as a passenger, see the Comment to WPI 100.09 (Passenger—Definition—When Status Begins and Terminates).

Elevators and escalator owners and operators are common carriers in Washington. Dabroe v. Rhodes Co., 64 Wn.2d 431, 392 P.2d 317 (1964); Pruneda v. Otis Elevator Co., 65 Wn.App. 481, 828 P.2d 642 (1992); see WPI 100.02 (Common Carrier—Definition). In cases involving elevators and escalators operated for public use, the court may wish to modify the instruction to identify the type or nature of the defendant's common carrier activities. This may be done by modifying the second sentence of the instruction to read: “… consistent with the practical operation of its elevators and its business as a common carrier by elevator.”

In Yurkovich v. Rose, 68 Wn.App. 643, 847 P.2d 925 (1993), the court held that there was no need for the trial court to instruct the jury that a common carrier is not a guarantor of the plaintiff's safety under the facts of the case. The court found that the instructions as a whole adequately conveyed the same message and permitted the defendants to argue their theory of the case.

It is reversible error to give WPI 10.01 (Negligence—Adult—Definition) without explaining the application of each “duty of care” instruction to the jury. Coyle v. Mun. of Metro. Seattle, 32 Wn.App. 741, 649 P.2d 652 (1982). This holding would also seem to apply if there are multiple defendants, all of whom are not conceded to be common carriers.

In Quynn v. Bellevue School District, 195 Wn.App. 627, 383 P.3d 1053 (2016), the court discussed the applicable duty of care when a school district acts as a common carrier to its students. The court stated that when a school district acts as a common carrier “it may also owe them the duty that arises from the carrier-passenger relationship.” Quynn, 195 Wn.App. at 634. However, a school district's failure to protect a student from harassment and bullying on a school bus does not implicate the high standard of care attached to operation of a common carrier because the alleged breach of duty is not connected to the operation of the school bus. Instead, the applicable standard of care is the duty imposed on school districts to protect their students from physical harm caused by third parties as set forth in McLeod v. Grant County School District No. 128, 42 Wn.2d 316, 255 P.2d 360 (1953), and its progeny.

For a general discussion of this area of the law, see DeWolf & Allen, 16 Washington Practice, Tort Law & Practice §§ 2:38–.40 (5th ed.).