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WPI100.01Common Carrier—Duty to Passengers

6 WAPRAC WPI 100.01Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 100.01 (6th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
December 2017 Update
Washington State Supreme Court Committee on Jury Instructions
Part IX. Particularized Standards of Conduct
Chapter 100. Common Carriers
WPI 100.01 Common Carrier—Duty to Passengers
[At the time of the occurrence in question, the defendant was a common carrier.]
A common carrier has a duty to its passengers to exercise the highest degree of care consistent with the practical operation of its type of transportation and its business as a common carrier. Any failure of a common carrier to exercise such care is negligence.
[However, a common carrier is not a guarantor of the safety of its passengers.]
NOTE ON USE
Use the first bracketed paragraph only if there is no disputed factual issue as to whether the defendant is a common carrier. That issue will usually be a matter of law for the judge to decide. 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 the Comment to WPI 100.02, Common Carrier—Definition.
Do not use the bracketed last paragraph unless the circumstances of the particular case call for that type of 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 is given, care must be taken to insure that the jury understands which standard of care to apply.
This instruction should be used whether the allegations of negligence relate to the operation of the vehicle or its construction or maintenance. This instruction applies whether the carrier-passenger relationship has been established or is an issue for the jury.
If the carrier-passenger relationship is an issue for the jury, WPI 100.09, Passenger—Definition—When Status Begins and Terminates, should also be given.
For intentional torts by employees of the carrier, use WPI 100.04, Common Carrier—Duty to Protect Passengers from Assault or Intentional Harm by Employees.
COMMENT
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 County, 138 Wn.App. 427, 157 P.3d 879 (2007) (“a common carrier of passengers owes the highest degree of care to protect its passengers from harm”). A common carrier is not an insurer of its passengers' safety. Walker v. King County Metro, 126 Wn.App. 904, 908, 109 P.3d 836 (2005); Tortes v. King County, 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. System, 65 Wn.2d 461, 398 P.2d 14, 401 P.2d 350 (1965)opinion amended, 65 Wn. 2d 461, 401 P.2d 350; Tortes v. King County, 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 v. King County Metro, 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 v. King County, 138 Wn.App. at 442. The heightened standard is of no avail to a motorist whose car collides with a bus. 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.
In cases involving elevators and escalators operated for public use, the court may wish to identify the 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.
In a case involving a defendant who is or who allegedly is a common carrier, 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. Municipality of Metropolitan Seattle, 32 Wn.App. 741, 649 P.2d 652 (1982).
In 2010, the instruction was revised for consistency with other pattern instructions, which refer to “exercising” care. No substantive change is intended.
For a general discussion of this area of the law, see DeWolf & Allen, 16 Washington Practice, Tort Law & Practice §§ 1.37 and 1.39 (3d ed.).
[Current as of October 2010.]
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