The Journal of the Virginia Trial Lawyers Association, Volume 28 Number 3, 2021 7 Common Carrier Litigation: An Overview of Relevant Case Law by Ryan Quinn uccessfully litigating personal injury cases entertainment purpose of the scenic transporta- involving common carriers requires a nuanced tion. A more interesting potential example is a Sunderstanding of several legal principles dinner cruise travelling a regular route (think unique to common carrier litigation. This article “Booze Cruise” in The Office). Such a ride has will examine the relevant case law and set forth the all the earmarks of a common carrier (offers what broad legal principles that guide legal assessments are generally considered transportation services, in common carrier cases. ticketed entry, regular routes, etc.) but it could be easily argued that the transportational element What is a “common carrier”? of the service provided is incidental to the more In Virginia, a common carrier is classically paramount entertainment function. Following the defined as “one who, by virtue of his calling and as rationale of Bregel, one critical aspect of this analy- a regular business, undertakes for hire to trans- sis will be whether patrons, when paying admission port persons or commodities from place to place, to the cruise, do so primarily for entertainment or offering his services to all such as may choose to 6 transportation reasons. 1 employ him and pay his charges.” Embedded in On their own merits, ridesharing companies like this somewhat esoteric definition are two key defin- Uber and Lyft might appear to meet the standards ing features: (1) a common carrier expressly holds of the “common carrier” designation, as they, at itself out to the public as offering transportation least on the surface, satisfy the Bregel twin criteria services; and (2) the transportation services provid- as expressly offering transportation services that are ed are not incidental to another more fundamental not incidental to another, more elemental function. function. The Supreme Court of Virginia offered a However, Virginia law expressly excluded Uber, clear example of this distinction in Bregel v. Busch Lyft, and other ride-sharing entities from the defini- 2 Entertainment Corp. In Bregel, the Court held that tion of “common carriers.”7 This legislative deci- Busch Gardens’ beloved Skyline attraction, which sion has potentially massive implications for the offers patrons a scenic aerial overview of the park, plaintiff’s bar, implications that exceed the scope of was not a common carrier as it was offered for this article. primarily “entertainment purposes, and the trans- portation function is incidental to the entertainment A heightened standard of care function.”3 The Court further reasoned that “patrons Determining whether a transportation provider do not pay admission to the park to obtain transpor- is a “common carrier” under Virginia law is critical tation services; rather, they pay to be entertained by because Virginia courts have long imposed a higher amusement rides, shows, and other attractions.”4 standard of care to common carriers than other Utilizing this two-part analysis, Virginia courts motorists. This heightened standard of care has its have determined that taxicabs, buses, limousines, origins in two common law assumptions regard- railroads, and ferries are common carriers.5 Each ing common carriers: (1) that motorized travel is expressly markets itself as a transportation pro- an intrinsically dangerous activity; and (ii) that vider, and each offers fundamentally transportation during transport, passengers are largely dependent services, services that are not incidental to another on the common carrier to provide for their safety. more significant function. However, under the logic As the Supreme Court of Virginia has explained, of Bregel, a company offering scenic helicopter rather charmingly if somewhat anachronistically, tours of the Potomac River, for example, would “[t]he reason for the high degree of care required of likely not be considered a common carrier, as the carriers is the tender regard the law has for life and transportation element of their services might be limbs, and the fact that the carrier has the selec- considered incidental to the more fundamental tion, control, management and operation of the 8 The Journal of the Virginia Trial Lawyers Association, Volume 28 Number 3, 2021 whole instrumentalities of carriage, and a limited What does this mean in practice? A 1964 opinion control over and direction of the conduct of the from the Supreme Court of Virginia provides a passenger.”8 nice illustration of the differing liability standards While courts are in broad agreement on the un- imposed to common carriers and other vehicles. In derlying logic of a higher duty of care for common Terminal Cars, Inc. v. Wagner,16 a woman en- carriers, courts have used varying formulations to gaged a cab in Norfolk to take her home. As the define the specific nature of this heightened duty. In cab driver was following a truck closely, the truck one common formulation, a common carrier “must driver started to turn, the cab driver applied the exercise the highest degree of practical care for the brakes and brought the vehicle to sudden stop, in- safety of its passengers.”9 An even more exacting juring the passenger. She sued the cab company, the standard is in Chesapeake Ferry Co v. Cummings, cab driver, and the truck driver to recover damages where the Virginia Supreme Court imposed on a for her injuries. The Virginia Supreme Court held common carrier “the duty to use the highest degree that the cabdriver, as a common carrier, was liable of care for their safety known to human prudence for “slight negligence” and required the cab driver and foresight, and is liable for the slightest neg- to use “the highest degree of care.”17 In contrast, the ligence against which human care and foresight truck driver could only be held liable if he failed to may guard.”10 (This is an advisable standard for act reasonably under the circumstances pursuant to plaintiff’s counsel to adopt, as it is difficult to see ordinary negligence standards.18 The imposition of anything short of absolute perfection that could differing standards of care to common carriers has satisfy “the highest degree of care against which some very significant ramifications – making these human care and foresight may guard.”) cases substantially easier to pursue, and heavily Other common formulations include: incentivizing plaintiff’s counsel to find common • “the highest degree of care”11 carrier defendants whenever possible. • “very high degree of care”12 One question left open by the heightened • “utmost degree of care”13 standard of care imposed on common carriers is whether common carrier defendants can make use Perhaps the most widely cited standard is found of a plaintiff’s contributory negligence as a defense 14 in Shamblee v. Virginia Transit Co., where the to liability. Virginia courts have not expressly ruled court held that a common carrier should provide on the issue, but other jurisdictions have found to passengers “the highest degree of care for their that the heightened standard of care essentially safety…it is liable for the slightest negligence precludes contributory negligence claims grounded that such care could have foreseen and guarded in ordinary passenger negligence.19 While not bind- against.” However, the Court followed this grand ing in civil actions, Virginia Code §8.01-58 bars statement with the potentially contradictory caveats contributory negligence claims in cases brought by that common carriers are “not insurers” for the injured railroad employees against their employers. safety of their passengers and that the heightened This further suggests that contributory negligence standard of care “means no more than every care might not bar claims against common carriers. which is practicable by common carriers engaged in the business of transporting passengers.”15 The Identifying the limits of common carrier liability Shamblee Court, and subsequent opinions, have offered precious little guidance on how to interpret The passenger-carrier relationship these two potentially conflicting instructions. All In perhaps the most critical limitation on the that is certain is that common carriers are held to a heightened standard of care required of common standard more exacting than ordinary negligence, carriers, courts have held that the higher standard but short of strict liability. applies only in instances where the plaintiff can The Virginia Model Jury Instructions thread the properly be considered a “passenger” of the defen- same needle, imposing liability for the “slightest dant carrier at the moment the injury sued upon was 20 negligence” while cautioning that common carriers sustained. Courts have further clarified the dimen- are not insurers for the safety of their passengers. sions of a plaintiff’s “passenger” status - a plain- Virginia Model Jury Instruction No. 22.000 states: tiff’s status as a passenger is deemed to commence at or about the time of boarding,21 and continues The defendant is a common carrier. A “until after the [plaintiff] has alighted from the common carrier has the duty to use the conveyance and has had a reasonable opportunity highest degree of practical care for the to reach a place of safety,”22 safety of its passengers. It is liable for the Of great potential significance to defective prem- slightest negligence causing injury that ises claims, Virginia