Fred Schultz Torts Law Blog on Lawyers.com

I was saddened to see several bad bus crashes in the news this past week.  As a lawyer, it got me thinking about the different standards we use to determine fault in cases like this. These recent common carrier crashes such as this one in New York, or this train crash in Michigan, or this plane crash in California, demonstrate the risks passengers take when they take their seats on board.  They trust that the company has not only provided the vehicle to transport them, but properly maintained it as well.  They trust that the pilot, driver or captain is mentally and physically capable of safely transporting them to their destination.  They trust that the safety equipment is in good working order and that the driver knows what he/she is doing.  Because of this high level of trust placed on the carriers, buses, planes, trains and ships are common carriers and are held to strict liability rules of negligence.

In fact, the Indiana Supreme Court has long recognized that while a carrier of passengers is not an insurer of the safety of its passengers, it is required to exercise the highest degree of care to secure their safety, and it is liable to a passenger, who is himself without fault, for any omission or failure to exercise this power and for the slightest neglect of duty in this respect. The special duties of the common carrier are said to arise from the fact that the passenger has entrusted his safety, as a bailor entrusts his goods, to the custody and safekeeping of the carrier. The carrier, like the bailor, is to exercise control over the goods which have been confided to its care and over the circumstances in which they are found so as to ensure their security. See, Atl. Coast Airlines v. Cook, 857 N.E.2d 989 (Ind. 2006). 

What this means is that if there is any negligence whatsoever on the part of the company that chartered the transportation, passengers on board can seek 100% compensation for their injuries from the company if something goes wrong.  This is very different from crashes involving other types of vehicles, such as two automobiles crashing at an intersection, or even a semi-tractor trailer crash.  In crashes involving non-passenger vehicles, more traditional standards of fault apply. 

For example, in a crash that does not involve a common carrier, fault is usually assessed between all the participants in the crash and negligent drivers are only responsible for their percentage of the blame.  So, if a truck driver is found 80% at fault for the wreck, then they pay only 80% of the injured person’s total damages.  This is what is known as “comparative fault.”  However, when dealing with a common carrier like a bus or an airplane, even 1% fault can attach 100% responsibility for the harm.  Obviously, this is a big difference.

While this may seem harsh, think of it this way:  How many times have you been in a taxi cab with a driver who is being extremely aggressive and makes you concerned for your safety?  I can remember a time in Chicago when a cab driver was repeatedly slamming on his brakes and then slamming on the gas to try and get me somewhere in the middle of the afternoon.  My papers and carry on items went flying against the back of his seat and onto the floor. Thankfully, we didn’t get in a wreck, but it wasn’t because of his stellar driving, that’s for sure.  I was so glad to be safely out of his cab that I almost bent down and kissed the ground.  The bottom line was that my safe passage was completely in this lunatic’s hands, not my own.  That’s why the strict liability standard attaches in these situations.

If you think about it, companies that transport passengers are regulated by federal and state agencies to make sure they are compliant with safety regulations and financial responsibility laws.  For example, taxi cab companies are required to register with the State of Indiana and provide proof of liability insurance. Cab drivers are even required to be licensed as chauffeurs.  Likewise, everyone knows that the FAA regulates the airline industry and makes the carriers subject to inspection and other safety standards.  Every once in a while, we even hear about airline pilots who are caught drinking on the job, and who are summarily arrested and fired.  The whole purpose is to ensure that passengers are provided with safe transport. 

Ultimately, the common carrier exception to traditional negligence standards is there for the same reason.  Good public policy simply recognizes the fact that people are allowed to trust that the company they hired to transport them will do so in a safe manner.  If not, the company is responsible for the harm caused to the passenger.  That is the risk the company takes, and they build the cost of the risk into the price they charge for the ride.  If they do their jobs properly, as we all hope they will, everyone gets where they’re going safely.

Additional research compiled by Lori M. Craig, R.P.