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Bus and Motor Coach Library

Common Carrier Liability for Acts of Third Parties

Author - Tom Frenkel (2003)

Common carriers are transportation entities which are required by law to transport passengers or freight if the appropriate fee is paid. Naturally, there are exceptions - such as when a passenger or parcel poses a hazard or risk. Generally speaking, a bus company which operates its equipment in scheduled service, over published routes, taking on itinerant passengers is engaged in common carrier operations. So, too, are railroads, airlines, ferry services, and the like.

Throughout centuries of legal doctrine, common carriers in passenger service have been held to the highest standards of care for those passengers. This doctrine is rooted in a rather logical premise: the carrier is in control of the instrumentality of the conveyance (in our case, the bus or motorcoach) and the passenger cannot exert control over its operation. Drivers control their buses and coaches, just as pilots control aircraft and engineers control trains. The passengers have basically placed their well-being in the hands of another who intends to profit by operating the vehicle.

When a common carrier’s passenger is injured, a claim of carrier negligence may result. For a negligence claim to succeed against any defendant, the claimant must show that his or her injury was caused by the defendant’s breach of a duty of care which is owed to that claimant. The extent of that duty is defined by the standard of care which applies. Since common carriers owe a very high standard of care to their passengers, such claims often succeed. That elevated standard, however, does not impose absolute liability on the carrier. There must also be an act, or a failure to act (sometimes called “an omission”) on the part of the carrier which caused the injury.

In my home state (Illinois), this standard has been consistently defined by the courts over many decades. In a recent case where a passenger was injured while onboard a city transit bus, the court repeated Illinois’ long-standing doctrine regarding common carrier liability: “It has long been the law of Illinois that a common carrier owes its passengers the highest degree of care consistent with the practical operation of its vehicles, but it cannot be an absolute insurer of the safety of its passengers.” The court went on to say: “A carrier is liable to its passenger only for injuries that are caused by its negligence; it is not liable for injuries that result from a cause beyond its control. Hence, the mere fact that there is an accident which injures a passenger does not warrant a presumption that the carrier was negligent.”

This doctrine is not unique to Illinois, but is in force most everywhere in the United States. In fact, it hails from the English common law which was adopted, as foundational law, by Illinois and most other states. Therefore, before a negligence claimant can prevail against a common carrier in domestic operations, that claimant must demonstrate that a carrier was negligent through its acts or omissions. (I point to “domestic operations” because there are international pacts and treaties which supersede the common law for certain international operations.)

The recent Illinois case involved a passenger on a city bus who tripped over a student’s book bag which was resting in the aisle. At her deposition (a sworn statement which is given, under oath, in response to questions which are usually posed by other parties to a lawsuit) the claimant testified that, as she walked down the aisle towards the rear of the bus, she was trying to avoid being hit in the face by a student’s book bag while holding the handrail with her other hand. She was not looking at the floor. She also stated that she let go of the handrail briefly and that the bus “must have” lurched, causing her to trip over the book bag that was on the floor. The court held as follows: “The [municipal carrier’s] high duty of care as a common carrier applies to the operation of its vehicle but not to the actions of third parties.” The court further found that the claimant never alleged, nor proved, that the driver knew or should have known that the book bag was on the floor.

There is an interesting history to this successful outcome for the common carrier. The matter was first tried to a panel of arbitrators. Arbitration is a process where a complaint is heard in a less formal setting than a courtroom, generally by a panel of three arbitrators who weigh the evidence and the law. They reach a majority opinion as to liability and, if applicable, an award. In most arbitrations, each side selects one arbitrator and those two arbitrators will agree on the third, who sits as a neutral umpire. The umpire presides over the arbitration and serves as a tie-breaker, if necessary. The arbitration panel found that the municipal carrier was liable and awarded damages in the amount of $13,800, plus costs, to the claimant. The carrier rejected the arbitration award and the complaint was set for trial. The trial court found, as a matter of law, that this claim could not succeed as alleged and dismissed the claim pursuant to a pretrial motion by the carrier. The claimant appealed the dismissal of her claim to the Appellate Court of Illinois, which upheld the trial court’s dismissal. The bottom line here is that the carrier’s persistence paid off. The carrier did not pay this undue claim, and it created a precedent to help discourage and defeat similar future claims.

We best serve our passengers by operating carefully, and according to the rules. Bus operators are held to a very high standard in these respects. However, as this court clearly held, a carrier’s duty does not extend to passengers’ acts which are beyond the carrier’s reasonable knowledge or control.

Thomas R. Frenkel is an attorney, licensed to practice in Illinois, Minnesota, and the District of Columbia.  Mr. Frenkel has a unique blend of legal and practical transportation and hospitality industry experience.  He is a past president of the National Tour Association (NTA), a past two-term board member of the Travel Industry Association of America (TIA), a founding member of the Hospitality Skills Standards Board (which was created under directive of the United States Department of Labor), and a member of the Transportation Lawyers Association.  Tom Frenkel was the Editor in Chief of the Southern Illinois University Law Journal.  He practices law from his office at Feirich/Mager/Green/Ryan, Attorneys at Law, a law firm which enjoys the highest ratings in both quality of legal service and quality of ethical standards by Martindale-Hubbell, an independent service which rates legal professionals.  Tom Frenkel may be contacted at FMGR, 2001 West Main Street, P.O. Box 1570, Carbondale, Illinois, USA, 62903-1570.  Phone: (618) 529-3000, email: tfrenkel@fmgr.com.  This magazine is proud to feature Mr. Frenkel's commentary, as a contributing writer.  This column is featured for the interest of our readers, but does not constitute legal advice; nor does any attorney-client relationship arise through its publication.