Ariz. SC: Bus company has duty to exercise 'reasonable' care

By Jessica M. Karmasek | Mar 5, 2012


PHOENIX (Legal Newsline) - The Arizona Supreme Court has ordered a new trial in a woman's lawsuit against a city bus company and its driver.

The Court, in its Feb. 23 ruling, vacated the memorandum decision of a state Court of Appeals and remanded the case to a superior court, holding that the general negligence standard -- reasonable care under all the circumstances -- applies.

In May 2008, plaintiff Linda Brown, who was confined to a wheelchair, boarded a Tucson city bus operated by defendant SunTran.

The bus driver, defendant Grace Zoellner, secured the wheels of Brown's chair to the bus floor.

After the bus resumed its route, a car abruptly stopped in front of it, forcing Zoellner to brake sharply. Brown was thrown from her wheelchair, sustaining serious injuries.

She later sued SunTran and Zoellner, alleging that Zoellner was negligent both in driving the bus and in failing to fasten her seatbelt.

In response, SunTran argued that Brown's refusal to wear a seatbelt caused her injuries, along with the negligence of the driver of the car that stopped in front of the bus.

The company requested Pima County Superior Court Judge Stephen C. Villarreal instruct the jury that common carriers have a duty to passengers to exercise reasonable care under the circumstances.

However, Villarreal rejected the request, instead instructing:

"Negligence is the failure to use reasonable care. Negligence may consist of action or inaction. Negligence is the failure to act as a reasonably careful person would act under the circumstances."

The judge said the defendants, as common carriers of the passengers, are bound to exercise the "highest degree of care practicable" under the circumstances. A failure to do so, he said, is negligence.

The jury awarded $186,777.87 in compensatory damages, but found Brown 30 percent at fault and Zoellner 70 percent at fault.

It did not allocate any fault to the driver of the car that stopped in front of the bus.

The state Court of Appeals affirmed.

SunTran appealed to the state's high court.

Vice Chief Justice Andrew Hurwitz, who wrote the Court's 18-page opinion, said the appropriate standard of care in negligence actions by passengers against common carriers is the "objective, reasonable person standard" in traditional negligence law.

"Brown argues that a heightened standard of care is required because passengers entrust their safety to common carriers. But people entrust their safety to others in many different contexts, such as undergoing surgery," Hurwitz wrote.

"In the medical context, however, the common law imposed upon the surgeon only the duty to act as a reasonable surgeon would under the circumstances."

The justice continued, "It is difficult to see why we should impose upon the common carrier a duty to do more than a reasonable carrier would do under the facts of each particular case."

The Court noted that it has emphasized that common carriers are not "insurers" of the safety of their passengers.

"But, by requiring that a carrier exercise more care than that reasonable under the circumstances of the case, the 'highest degree of care' instruction approaches the insurance standard, as virtually every accident could be avoided if the carrier acted differently in some way," Hurwitz wrote.

If the carrier has acted with reasonable care in light of all the circumstances, it has discharged its duty to its passengers, the Court explained.

"Today's decision does not prevent a passenger from seeking damages caused by the negligence of a common carrier; we merely clarify that the carrier, like others, departs from its duty to the passenger only when acting unreasonably under all the circumstances," Hurwitz wrote.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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