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The Creep of Common Carrier Status

As Originally published by School Transportation News, May 2010.

By: Ned Einstein
Tel: 212-766-1121
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As it affects liability, an operating agency's status as a "common carrier" has an enormous impact not only on determining liability itself, but depending on legal constructs in various states, can also affect considerations like immunity and/or the assessment of punitive damages - often barriers to the assessment of damages afforded to public agencies. So except for motorcoaches deployed in commuter/express service under contract to public transit agencies, these latter considerations rarely affect motorcoach operations in the courtroom.

Why the status of common carrier is important is that it requires the "highest duty and standard of care." Without this status, the operator and its personnel are held merely to an ordinary standard of care - pretty much that of a common motorist with no training, and who operates apart from any structured organizational environment.

Common Criteria

Two criteria are generally needed to establish an operator as a common carrier:

  1. The service must be available to the general public.
  2. The passenger must pay a fare.

In the latter case, the fare need not be paid directly by the passenger. For example, the price for parking one's car in the fringe lot of an airport typically is accompanied by shuttle transportation to the terminal areas. The cost of parking indirectly includes the cost of the shuttle service.

Because of these criteria, in many states, schoolbuses are not considered common carriers. Given the responsibilities of their drivers and managers, many individuals, attorneys and courts find this exception troubling. At the same time, subtle differences between similar forms of other modes are cited to establish this distinction, yet have been problematic - particularly when well-argued by the plaintiff's expert witness:

  • According to the central criteria, a charter service would not be a common carrier whereas a tour service would. Yet other than the methodology of collecting the fare (charter passengers may contribute to the fares when an institution or single individual hires the vehicle), the entire array of other operating characteristics are virtually identical. These include the driver, his/her training, the vehicle, the origin and/or destination, the route and schedule, the maintenance, and everything and anything else. Many destinations are frequented by both charter and tour services, often from the same origins, and in some cases, provided by the same companies - since many motorcoach companies provide both tour and charter service.
  • Many defendant's attorneys argue that paratransit service is not a common carrier, since only disabled individuals are permitted to use it. I have testified that this is a specious argument, because it mischaracterizes the nature and intent of the Americans with Disabilities Act and its requirements for transit agencies and other services. In my opinion, the ADA has simply divided the entire class of individuals residing in transit corridors into two groups: Those members of the general public who can use fixed route transit, and those members who cannot. Both are members of the same class: The general public. "Members of the same class" is an important legal construct, and therefore would tend to erase the otherwise distinction between these two services and the standards of care to which they are held (i.e., while everyone who is able to can use transit, only those certified as disabled can use paratransit).

I myself tend to consider these distinctions superficial, and more recently, many courts have begun to agree. As the cliché goes, if you walk like a duck and talk like a duck, you are also likely to quack like one.

Whether common carrier status is good or bad, of course, depends on who one is. For an accident victim and his or her attorney, it is good, because it increases the standard of care for which the provider of the service on which an incident occurred was responsible. In contrast, it is bad for the service provider and its counsel, because with the standards now raised, it is easier to establish liability (compared to, say, merely the poor judgment that an ordinary individual may commonly make).

Common Carrier Creep

Along with the increased recognition of the superficiality separating similar modes, two landmark State-of-California lawsuits have greatly expanded the envelope corralling common carriers. These two cases, in particular, where the appellate courts have affirmed rulings supporting lower court findings in favor of the plaintiff, have had significant impacts on judicial determinations of common carrier status not only in California, but where courts have allow precedents from other states, throughout the country:

  • In Gomez v. Superior Court (2005), the appellate court held that an amusement park ride is a common carrier.
  • In Squaw Valley v. Superior Court (2005), the appellate court held that a ski lift is a common carrier.

These rulings were, frankly, consistent, with the fundamental characteristics of a common carrier noted above: They are available to the general public, and their passengers pay a fare. Yet a judge learning of such cases and their rulings may find it hard to deny such status to a full-size charter coach carrying 57 passengers, or a schoolbus carrying 84 elementary school students, regardless of the fare payment or exclusionary usage criteria generally governing the determination of common carrier status.

Predictions and Precautions

Where there is some ambiguity, a court's determination is likely to be unpredictable unless strong precedents have been established in previous case law rulings in that state. Yet such cases are among the few types in which lower court judges are likely to ignore such precedents, and risk "being reversed" on appeal - since precious few transportation cases are appealed when decided against a plaintiff, and even few are appealed when they go against defendants - unless the defendant's insurance underwriter has a large number of clients in that state whose potential damage payouts in the future are likely to translate into considerable sums.

There are also some blurry notions that obfuscate rulings about common carrier status. One is the fact that charter services can be used to isolate groups of individuals from one another - a trend antithetical to the overwhelming theme of full integration toward which our nation is moving both politically and historically. Another is the increasing knowledge that distinctions between modes traditionally considered common carriers and those that have not been are so superficial as to pervert the Spirit of the law in order to protect its Letter.

With these trends and their risks, it does not seem to pay to operate as anything but a common carrier, even if you intend to argue the opposite once an incident occurs. There is considerable merit to this logic. First, while it may cost a bit more to operate to higher standards as an operating matter, these costs can be rendered almost negligent by a single accident or incident, much less a catastrophic accident. Second, as many of my previous NBT articles have tried to hammer home, safety generally pays off - including the advantages that would accrue to marketing it if the motorcoach industry could every effect the shift from its recalcitrant emphasis on customer service to customer safety.

Finally, there is the element of a self-fulfilling prophesy: If you operate like a common carrier, you may reap the benefits of one in the liability arena should you become involved in an incident and found negligent - even if you are held only to an ordinary standard of care. While there may indeed be some negligence, the overall characteristics of a service provider's operation that either party can manage to "sneak" into the case (i.e., to influence the jury about the quality of service in a general sense) often have a considerable bearing on its outcome. So a company that need operate merely to ordinary standards of care might be more forgiven for its single act of negligence if, overall, its conduct and performance is stellar, and its operations have striven to be provided according to the highest standard and duty of care.

In simple terms, operating like a common carrier makes common sense, even if and when one is not required to do so. In the courtroom, a chicken that can quack may sometimes be forgiven for its other shortcomings. Or when it is not, the penalties levied on it may be significantly less.

Ned Einstein is the President of Transportation Alternatives, a passenger transportation and automotive consortium engaged in consulting and forensic accident investigation and analysis (more than 600 cases). Specializes in elderly, disabled, schoolchildren. Mr. Einstein has been qualified as an Expert Witness in accident analysis, testimony and mediation in vehicle and pedestrian accidents involving transit, paratransit, schoolbus, motorcoach, special education, non-emergency medical transportation, taxi, shuttle, child transport systems and services...

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