WPI 100.08 Common Carrier—Duty to Disabled, Infirm, or Intoxicated Passenger or to a Child

Use bracketed material in the first paragraph as applicable. All or any part of the second paragraph contained in brackets should be used only when there is an issue as to notice to the carrier. If the last bracketed part of the second paragraph is used, a definition of ordinary care should also be given. See WPI 10.02 (Ordinary Care—Adult—Definition).

In certain instances this instruction may require modification if a child is traveling with a parent or another adult who is supervising the child. See the discussion in the Comment below.

The care to be exercised by a carrier in determining the infirmities of passengers is ordinary care. Gray v. City of Seattle, 29 Wn.2d 428, 187 P.2d 310 (1947). Once a carrier accepts or becomes aware of a passenger with an infirm condition, the carrier must exercise such special care and assistance as is required to safely transport that passenger. See Fagerdahl v. N. Coast Transp. Co., 178 Wash. 482, 35 P.2d 46 (1934) (duty commensurate with the apparent condition of the passenger); Benson v. Tacoma Ry. & Power Co., 51 Wash. 216, 98 P. 605 (1908) (passenger so intoxicated as to be unable to take care of himself); Sullivan v. Seattle Elec. Co., 51 Wash. 71, 97 P. 1109 (1908) (apparent feeble health needing assistance).

The duty of care ends when the passenger disembarks unless the carrier's employees have actual knowledge of the passenger's incapacity and a particular risk of harm which may result. See e.g. Shelley v. United Air Lines, 84 Wn.App. 129, 925 P.2d 991 (1996); see also Comment to WPI 100.09 (Passenger—Definition—When Status Begins and Terminates).

When a child travels with a parent or another adult who is supervising the child, the primary duty of caring for the child is on the parent or the child's supervisor. The carrier has the right to presume that the parent or supervisor will take care of the child as required under the circumstances. If the carrier's employees know, or should know, that the child is or will be exposed to danger or injuries by acts or negligence of the carrier's employees, the carrier is under the duty to use all reasonable and practicable care and diligence to avoid the danger and avert the injury. Shay v. Parkhurst, 38 Wn.2d 341, 229 P.2d 510 (1951).

In Houck v. University of Washington, 60 Wn.App. 189, 803 P.2d 47 (1991), the plaintiff became intoxicated at a dormitory party and subsequently fell down an elevator shaft in the dormitory while attempting to jump from the elevator after students had stalled it between floors. The trial court instructed that a common carrier who is not otherwise negligent has no duty to protect intoxicated passengers from damages caused by their intoxication unless the common carrier has actual knowledge of their intoxication and their danger. The Court of Appeals held that the instruction was reversible error under the facts of the case because it removed the question of negligence from the jury and was tantamount to a directed verdict for the defense. The court stated that an actual knowledge requirement may be understandable in a situation involving attended common carrier facilities, but it cannot apply to unattended, self-service facilities.

For additional discussion, see DeWolf & Allen, 16 Washington Practice, Tort Law & Practice § 2.40 (5th ed.).