WPI 100.03 Common Carrier—Duty to Protect Passengers From Misconduct of Others

Use WPI 100.01 (Common Carrier—Duty to Passengers) with this instruction.

Use WPI 100.04 (Common Carrier—Duty to Protect Passengers From Assault or Intentional Harm By Employees) instead of this instruction for cases involving assaults or other intentional harm by the common carrier's employees.

Use WPI 120.06.03 (Duty to Business Invitee—Protection From Criminal Acts) instead of this instruction when the injured person is a business invitee rather than a passenger. See also the discussion in the Comment to WPI 100.12 (Common Carriers—Duty to Protect Invitees from Assault).

A carrier is bound to exercise the highest degree of care demanded by the surrounding circumstances in protecting its passengers from misconduct of fellow passengers, when such conduct is known or could reasonably be anticipated in the exercise of the highest degree of care. Anderson v. N. Pac. Ry. Co., 88 Wash. 139, 152 P. 1001 (1915); Kelly v. Navy Yard Route, 77 Wash. 148, 137 P. 444 (1913).

A carrier has a duty to protect passengers from another passenger's criminal acts or intentional misconduct, but only to the extent that the acts or misconduct are foreseeable. Tortes v. King Cnty., 119 Wn.App. 1, 6, 7–8, 84 P.3d 252 (2003).

Although Tortes involved a criminal act committed by another passenger, the court's analysis extended the carrier's duty to protect against criminal acts of non-passenger third parties. “Metro has the duty to guard against foreseeable third party actions.” Tortes, 119 Wn.App. at 8.

The extension of this principle is also supported by several cases that do not involve common carriers but involve other special relationships that trigger a duty to protect a person from another's criminal acts. See Niece v. Elmview Grp. Home, 131 Wn.2d 39, 929 P.2d 420 (1997); Hutchins v. 1001 Fourth Ave. Assoc., 116 Wn.2d 217, 802 P.2d 1360 (1991); Lauritzen v. Lauritzen, 74 Wn.App. 432, 874 P.2d 861 (1994); see also the Comment to WPI 120.06.03 (Duty to Business Invitee—Protection from Criminal Acts). The instruction is written accordingly.

The common carrier's heightened duty of protection applies only to its passengers, not to third parties. See Parrilla v. King Cnty., 138 Wn.App. 427, 442, 157 P.3d 879 (2007).

In Quynn v. Bellevue School District, 195 Wn.App. 627, 383 P.3d 1053 (2016), the court held that 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. See also Hendrickson v. Moses Lake Sch. Dist., 192 Wn.2d 269, 428 P.3d 1197 (2018).