WPI 100.02 Common Carrier—Definition

Washington has adopted a three-part test to determine whether a party is a common carrier:

McDonald v. Irby, 74 Wn.2d 431, 435, 445 P.2d 192 (1968); see also RCW 81.04.010(11) (definition of “common carrier” for purposes of regulation by the Utilities and Transportation Commission); RCW 47.60.220 (Washington state ferries).

In the vast majority of cases, the court will determine whether the party in question is a common carrier as a matter of law. See, e.g., McDonald, 74 Wn.2d at 435; Donato v. United Grain Corp., 18 Wn.App. 880, 573 P.2d 811 (1977). If a party's status as a common carrier cannot be determined as a matter of law, an instruction based on the three-part test discussed above and tailored to the particular facts of the case will need to be given. Due to the fact-specific nature of the instruction, and because these issues are usually resolved as a matter of law, the WPI Committee has not set forth a pattern instruction on this subject.

Although the owners or operators of elevators or escalators operated for public use do not strictly meet the definition of common carrier set forth above, they are considered to be common carriers. Dabroe v. Rhodes, 64 Wn.2d 431, 392 P.2d 317 (1964) (department store escalator); Shielee v. Hill, 47 Wn.2d 362, 287 P.2d 479 (1955) (hotel elevator); Tinder v. Nordstrom, Inc., 84 Wn.App. 787, 929 P.2d 1209 (1997) (department store escalator); Houck v. Univ. of Wash., 60 Wn.App. 189, 803 P.2d 47 (1991) (public university elevator); Brown v. Crescent Stores, 54 Wn.App. 861, 776 P.2d 705 (1989) (store elevator).

In contrast, companies that simply have contracts to maintain and repair elevators are not common carriers. Kimball v. Otis Elevator Co., 89 Wn.App. 169, 947 P.2d 1275 (1997); Murphy v. Montgomery Elevator Co., 65 Wn.App. 112, 117, 828 P.2d 584 (1992); Pruneda v. Otis Elevator Co., 65 Wn.App. 481, 828 P.2d 642 (1992).