Nunez v. Professional Transit Management (2/23/12)

This case clarifies the standard of care for common carriers.

Defendant runs the Tucson city buses. Nunez’ decedent (who died before trial of unrelated causes) was a wheelchair-bound bus passenger. The driver strapped her wheelchair down but didn’t seat belt her. When the bus had to stop suddenly, she was thrown forward and injured.

Plaintiff argued that Brown should have been belted. The trial instructed the jury on the classic common-carrier standard: “the highest degree of care practicable under the circumstances.” Professional had asked for a reasonable-care instruction in addition to that, based on Atchison (1939), which decided that that instruction properly limits a common carrier’s duty. From a plaintiff’s verdict, the defendant appealed.

The Court of Appeals affirmed.

The Supreme Court reverses. Atchison is “hardly a model of analytical consistency” but it and later cases demonstrate that Arizona has always been uneasy with the common-carrier standard. Although common carriers have been held to have numerous duties, the standard of care in satisfying them is a separate issue. On that score the Restatements (second and third) require only reasonable care. Passengers entrust their safety to common carriers but they do the same with doctors, for example; there is no basis for imposing a higher standard.

Lowrey came to this conclusion ten years ago, based on a New York decision this opinion also cites, but that was a Division One case that Division Two (which handled this appeal) didn’t think it could follow in the face of other precedent. The Supreme Court agrees that the precedent was not clear.

“We therefore conclude that the appropriate standard of care in negligence actions by passengers against common carriers is the objective, reasonable person standard in traditional negligence law.”

Plaintiff argued that changing the standard would abrogate her cause of action. But clarifying the standard does not abrogate, it merely regulates. And ““Just as the common law is court-made law based upon the circumstances and conditions of the time, so can the common law be changed by the court when conditions and circumstances change.” So, does anti-abrogation apply to courts or not? The court chooses not to nail this down.

Plaintiff also argued that the court’s decision should be prospective only. But the precedent was not “clear and reliable,” especially in view of Lowrey, so that’s not appropriate.

This opinion tells you clearly, repeatedly, and exactly what it means, and why, in a relative minimum of pages. Hurwitz? You guessed it.

(link to opinion)