Nunez v. Professional Transit Management of Tucson, Inc.

SUPREME COURT OF ARIZONA
En Banc

ERA C. NUNEZ, as personal ) Arizona Supreme Court
representative of the Estate of ) No. CV-11-0186-PR
LINDA JOYCE BROWN, )
) Court of Appeals
Plaintiff/Appellee, ) Division Two
) No. 2 CA-CV 10-0201
v. )
) Pima County
PROFESSIONAL TRANSIT MANAGEMENT ) Superior Court
OF TUCSON, INC., an Arizona ) No. C20090652
corporation; and GRACE ZOELLNER, )
a single woman, )
) O P I N I O N
Defendants/Appellants. )
__________________________________)

Appeal from the Superior Court in Pima County
The Honorable Stephen C. Villarreal, Judge

VACATED AND REMANDED
________________________________________________________________

Memorandum Decision of the Court of Appeals, Division Two
Filed May 18, 2011

VACATED
________________________________________________________________

LAW OFFICE OF WILLIAM D NELSON, ESQ. Tucson
By William D. Nelson

And

KNAPP & ROBERTS, P.C. Scottsdale
By David L. Abney
Attorneys for Era C. Nunez

SNELL & WILMER L.L.P. Tucson
By William N. Poorten, III
Andrew M. Jacobs
Daniel P. Wierzba
Attorneys for Professional Transit Management
of Tucson, Inc. and Grace Zoellner
________________________________________________________________
H U R W I T Z, Vice Chief Justice

¶1 The issue in this negligence action is whether a

common carrier has the duty to exercise the highest degree of

care practicable under the circumstances or rather only the duty

to exercise reasonable care. We hold that the general

negligence standard - reasonable care under all the

circumstances – applies.

I.

¶2 On May 2, 2008, Linda Brown boarded a Tucson city bus

operated by SunTran. Brown was confined to a wheelchair. The

bus driver, Grace Zoellner, secured the wheels to the bus floor.

After the bus resumed its trip, a car abruptly stopped in front

of it. Zoellner braked sharply and Brown was thrown from her

wheelchair, sustaining serious injuries.

¶3 Brown1 sued SunTran and Zoellner (collectively,

“SunTran”), alleging that Zoellner was negligent both in driving

the bus and in failing to fasten Brown’s seatbelt. SunTran

argued that Brown’s refusal to wear a seatbelt caused her

injury. SunTran also argued that Brown’s injuries were caused

by the negligence of the driver of the car that stopped in front

of the bus.

1
Before trial, Brown died from causes unrelated to this
incident. Her personal representative, Nunez, was substituted
as plaintiff. We refer to the plaintiff as Brown in this
opinion for simplicity. 
2
¶4 SunTran requested the judge to instruct the jury that

common carriers have a duty to passengers to exercise reasonable

care under the circumstances. The judge rejected that

instruction, instead instructing as follows:

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 Defendants — Professional Transit Management of
Tucson, Inc. and Grace Zoellner — as common carriers
of passengers for hire, are bound to exercise the
highest degree of care practicable under the
circumstances.

A failure to exercise the highest degree of care under
the circumstances is negligence.

¶5 The jury awarded $186,777.87 in compensatory damages,

but found Brown 30% at fault and Zoellner 70% at fault. The

jury allocated no fault to the driver of the car that stopped in

front of the bus.

¶6 The court of appeals affirmed, finding that this

Court’s case law required the highest degree of care

instruction. Nunez v. Prof'l Transit Mgmt. of Tucson, Inc., 2

CA-CV 10-0201, 2011 WL 1998433, at *1-2 ¶¶ 1, 10 (App. May 18,

2011) (mem. decision).

¶7 We granted SunTran’s petition for review to address

the appropriate standard of care for common carriers. We have

jurisdiction pursuant to Article 6, Section 5(3) of the Arizona

Constitution and A.R.S. § 12–120.24 (2003).

3
 II.

A.

¶8 Under the English common law, common carriers were

bailees when transporting goods, and as such were strictly

liable for damage to the goods. 2 Dan B. Dobbs, Paul T. Hayden

and Ellen M. Bublick, The Law of Torts § 260 at 27 (2d ed.

2011); Robert J. Kaczorowski, The Common-Law Background of

Nineteenth-Century Tort Law, 51 Ohio St. L.J. 1127, 1130 n.14

(1990). But because passengers, unlike goods, had some ability

to protect themselves, common law courts rejected strict

liability in negligence actions by passengers. See, e.g., Aston

v. Heaven, (1797) 170 Eng. Rep. 445, 445-46 (K.B.). Instead,

courts imposed a duty of the highest degree of care practicable

under the circumstances. See id.

¶9 The rationale for applying a heightened standard of

care to common carriers was that passengers depended upon the

carrier to protect them from hazardous conditions that were

frequently encountered in the early days of public

transportation. See Dobbs et al., supra, § 262 at 31. Early

American decisions adopted the heightened standard of care, the

so-called “common carrier rule.” See, e.g., Stokes v.

Saltonstall, 38 U.S. 181, 191 (1839); Chicago & A.R. Co. v.

Pillsbury, 14 N.E. 22, 23-26 (Ill. 1887); Fairchild v. Cal.

Stage Co., 13 Cal. 599, 605 (1859); Ingalls v. Bills, 50 Mass.

4
1, 12-13 (1845). This approach remains in widespread use. See,

e.g., Fieve v. Emmeck, 78 N.W.2d 343, 347-48 (Minn. 1956); Speed

Boat Leasing, Inc. v. Elmer, 124 S.W.3d 210, 212 (Tex. 2003).

¶10 Opinions of this Court have also long repeated the

common carrier rule. See S. Pac. Co. v. Hogan, 13 Ariz. 34, 37-

38, 108 P. 240, 241 (1910); Atchison, Topeka & Santa Fe Ry. Co.

v. France, 54 Ariz. 140, 145, 94 P.2d 434, 436 (1939); Nichols

v. City of Phoenix, 68 Ariz. 124, 130, 202 P.2d 201, 204 (1949);

Napier v. Bertram, 191 Ariz. 238, 242 n.9, 954 P.2d 1389, 1393

n.9 (1998). On analysis, however, past Arizona decisions have

been less than entirely enthusiastic in embracing the rule.

¶11 In Atchison, the trial court instructed the jury that

a railroad was required “to exercise the highest degree of care

for the safety of its passengers which is practicable under the

circumstances.” 54 Ariz. at 144, 94 P.2d at 436. This Court,

noting its agreement with the “majority” rule, stated that the

instruction “correctly state[d] the duty of a carrier for hire

to its passengers and that a failure to exercise the highest

degree of care practicable under the circumstances amounts to

negligence.” Id. at 144, 145, 94 P.2d at 436. Atchison

nonetheless reversed a judgment in favor of the plaintiffs

because the trial court failed to give the standard negligence

instruction requested by the railroad, which read:

5
 You are instructed that negligence is the omission to
do something which a reasonably prudent man, guided by
those considerations which usually regulate the
conduct of human affairs would do; or is the doing of
something which a prudent and reasonable man, guided
by those same considerations would not do; it is not
intrinsic or absolute, but is always relative to the
surrounding circumstances of time, place and persons.

Id. at 143-44, 94 P.2d at 436.

¶12 This Court found that this “reasonably prudent man”

instruction “correctly states the law,” and that failure to give

it “tended to mislead the jury, by failing to point out

sufficiently to it the limitations on the care required . . . of

a common carrier.” Id. at 145, 94 P.2d at 437. The Court

emphasized that “the duty of a prudent and reasonable man is

. . . always relative to the surrounding circumstances of time,

place and persons, and this applies to common carriers, as it

does to all others.” Id.

¶13 Atchison is hardly a model of analytical consistency.

On the one hand, the Court found that the “highest degree of

care” instruction “correctly” stated a common carrier’s duty,

but on the other, reversed for failure to give an ordinary

“reasonable care” negligence instruction. Atchison’s ruling

could be read as merely fact-specific. See id. (“Under some

circumstances this failure to give the suggested instruction,

even though, as we have said, it correctly states the law, might

not have been prejudicial, but we think in the present case it

6
was.”). But one week later, in another personal injury action

by a passenger against a railroad, this Court cited the

instruction requested by the railroad in Atchison as “an

excellent definition of negligence.” S. Pac. Co. v. Buntin, 54

Ariz. 180, 185, 94 P.2d 639, 641 (1939).

¶14 Subsequent opinions of this Court reciting the

“highest degree of care” language did not involve jury

instructions. See Napier, 191 Ariz. at 243-44, 954 P.2d at

1394-95 (discussing whether common carriers have a duty to carry

uninsured motorist insurance); Nichols, 68 Ariz. at 129, 135-39,

202 P.2d at 204, 208-11 (discussing proximate cause). Indeed,

no Arizona opinion “holds that it is reversible error to

instruct the jury that a common carrier merely owes a duty of

reasonable care toward its passengers.” Block v. Meyer, 144

Ariz. 230, 234, 696 P.2d 1379, 1383 (App. 1985). Citing

Atchison, Block found “no error in the trial court’s failure to

instruct the jury that a common carrier owes its passengers the

highest standard of care practicable, or words to that effect.”

Id. The court of appeals cited with approval Prosser’s comment

that “[t]echnically the ‘high degree’ instruction is incorrect.”

Id. at 236, 696 P.2d at 1385 (citing William L. Prosser, Law of

Torts § 34 at 181 (4th ed. 1971), and Restatement (Second) of

Torts (“Second Restatement”) § 314 (1965)).

7
¶15 Seventeen years later, the court of appeals upheld a

“trial court’s refusal to apply the common carrier doctrine

because . . . it adds no useful element to the ordinary

negligence standard of reasonable care under the circumstances.”

Lowrey v. Montgomery Kone, Inc., 202 Ariz. 190, 195 ¶ 20, 42

P.3d 621, 626 (App. 2002). Lowrey found persuasive the

reasoning of other courts that rejected the common carrier

doctrine, id. at 196 ¶¶ 21-23, 42 P.3d at 627 (citing Bethel v.

N.Y.C. Transit Auth., 703 N.E.2d 1214, 1215-16 (N.Y. 1998) and

Sebastian v. District of Columbia, 636 A.2d 958, 962 (D.C.

1994)), noting that

an attempt to explain the common carrier doctrine to a
jury would be riddled with the prospect of confusion.
. . . To hold that a common carrier must exert more
than reasonable care under the circumstances not only
serves no useful purpose; it is a hard concept to make
sense of and one very likely to be misunderstood.

Id. at 196 ¶ 23, 42 P.3d at 627. The court of appeals therefore

concluded “that the time has come to discard the notion that a

common carrier bears a higher duty toward its passengers than

that of reasonable care under all of the circumstances.” Id.

¶16 The decision below cited Lowrey, but suggested that

Division One “lacked the authority” to abandon the common

carrier doctrine in light of this Court’s previous decisions.

Nunez, 2011 WL 1998433, at *2 ¶ 10 (citing Napier, 191 Ariz. at

242 n.9, 954 P.2d at 1393 n.9). We do not today criticize that

8
conclusion; as noted above, Atchison and its progeny are not

entirely clear, and several of our opinions (albeit in dicta)

have described the common carrier doctrine as settled law. See,

e.g., Nichols, 68 Ariz. at 130, 139, 202 P.2d at 204, 210;

Lunsford v. Tucson Aviation Corp., 73 Ariz. 277, 280, 240 P.2d

545, 546 (1952). But whether a highest degree of care

instruction is appropriate in a passenger’s negligence action

against a common carrier is squarely presented in this case, and

we now turn to that question.

B.

¶17 In general, “every person is under a duty to avoid

creating situations which pose an unreasonable risk of harm to

others.” Ontiveros v. Borak, 136 Ariz. 500, 509, 667 P.2d 200,

209 (1983) (emphasis added) (quoting Nazareno v. Urie, 638 P.2d

671, 674 (Alaska 1981)). Because common carriers have a special

relationship with passengers, their duties traditionally have

extended beyond the mere obligation not to create a risk of

harm. See Second Restatement § 314A(1)(a) and cmt. b. The

special relationship imposes a duty to avoid harm from “risks

created by the individual at risk as well as those created by a

third party’s conduct.” Restatement (Third) of Torts (“Third

Restatement”): Liability for Physical Harm § 40 cmt. g (Proposed

9
Final Draft No. 1 2007);2 see also Ft. Lowell-NSS Ltd. P’ship v.

Kelly, 166 Ariz. 96, 101, 800 P.2d 962, 967 (1990) (noting that

common carriers “are often held to possess an affirmative duty

to guard the safety of their [passengers]”); Second Restatement

§ 314A cmt. d. In addition, a common carrier owes a duty to

render passengers “first aid after it knows or has reason to

know that they are ill or injured, and to care for them until

they can be cared for by others,” regardless of whether the

carrier created the risk of harm. Second Restatement §

314A(1)(b).

¶18 But, “[t]he existence of a duty of care is a distinct

issue from whether the standard of care has been met in a

particular case.” Gipson v. Kasey, 214 Ariz. 141, 143 ¶ 10, 150

P.3d 228, 230 (2007). Although they impose broader duties on

common carriers than on ordinary actors, the Restatements

require only the exercise of “reasonable care.” Second

Restatement § 314A cmt. e (stating that even with special

relationships and affirmative duties “[t]he duty in each case is

only one to exercise reasonable care under the circumstances”);

Third Restatement § 40 cmt. d.

2
“With the exception of Comment d to § 27 and Comment a to §
28, the substance of Proposed Final Draft No. 1 (issued on April
6, 2005), has been finally approved by both the [American Law]
Institute’s Council and its membership.” Third Restatement § 40
(Proposed Final Draft No. 1 2007) Note. 
10
¶19 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. 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. See Acton v. Morrison, 62 Ariz. 139, 142, 155

P.2d 782, 783 (1945).3 The standard of reasonable care “may be

modified by the surrounding circumstances of time, place and

persons.” Buntin, 54 Ariz. at 185, 94 P.2d at 641; see also

Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 357, 706 P.2d 364,

369 (1985) (“What is reasonable on the one hand or negligent on

the other will depend on the circumstances.”); Second

Restatement § 283. 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. See

Pannu v. Jacobson, 909 A.2d 178, 194 (D.C. 2006) (stating that

the standard of care for common carriers and doctors is the

course of action that a reasonably prudent actor within the same

field would have taken).

¶20 Brown also argues that most jurisdictions still adhere

to the “highest standard of care” doctrine for common carriers.

3
The standard of care in medical malpractice cases has now
been codified in A.R.S. § 12-563. 
11
But we, of course, are not bound by decisions of other state

courts in advancing our common law. Indeed, as one court has

aptly noted, even cases that continue to “speak[] of a common

carrier as being held to the highest degree of care,” in fact

subject carriers “to essentially the same standard as any other

alleged tortfeasor, i.e., an obligation to exercise due care.”

Sebastian, 636 A.2d at 962 (internal quotation marks and

citation omitted); see also Wash. Metro. Area Transit Auth. v.

Jeanty, 718 A.2d 172, 175 (D.C. 1998) (harmonizing cases

articulating standards of care for common carriers).

¶21 The New York Court of Appeals has expressly rejected

the common carrier doctrine, instead adopting the general

standard of reasonable care under the circumstances. Bethel,

703 N.E.2d at 1218.4 As Bethel noted, one underpinning of the

doctrine – the 19th century perception that the steam railroad

and other instruments of public transport were “ultrahazardous”

– is no longer accurate. Id. at 1216. But more importantly,

Bethel correctly recognized that any dangers in common carriage

and the passenger’s dependence upon the carrier can

4
See also Union Traction Co. of Ind. v. Berry, 121 N.E. 655,
657 (Ind. 1919) (stating that the appropriate standard of care
for common carriers is what “a person of reasonable or ordinary
prudence would exercise in view of all the conditions and
circumstances”); Frederick v. City of Detroit, 121 N.W.2d 918,
923 (Mich. 1963) (concluding that a carrier owes its passengers
“the duty to exercise such diligence as would be exercised in
the circumstances by a reasonably prudent carrier”). 
12
appropriately be considered under the general standard of

reasonable care under the circumstances, which “necessarily

takes into account the circumstances with which the actor was

actually confronted,” including “any special relationship of

dependency between the victim and the actor.” Id.

¶22 As the Lowrey court did, we find Bethel persuasive.

See Lowrey, 202 Ariz. at 196 ¶ 23, 42 P.3d at 627. We

particularly agree with the court’s observation in Lowrey that

“an attempt to explain the common carrier doctrine to a jury

would be riddled with the prospect of confusion.” Id. Our

cases confirm that proposition. Atchison found a heightened

degree of care instruction misleading, and we have since

cautioned that “[t]he law does not require [carriers] to

exercise all the care, skill, and diligence of which the human

mind can conceive.” Lunsford, 73 Ariz. at 280, 240 P.2d at 547.

The dividing line between the exercise of reasonable care under

all the circumstances and the common carrier doctrine is thus

both practically and intellectually elusive. We have also

emphasized that common carriers are not insurers of the safety

of their passengers. Alexander v. Pac. Greyhound Lines, Inc.,

65 Ariz. 187, 193, 177 P.2d 229, 233 (1947). 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

13
every accident could be avoided if the carrier acted differently

in some way.

¶23 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. This “standard provides sufficient flexibility,

and leeway, to permit due allowance to be made . . . for all of

the particular circumstances of the case which may reasonably

affect the conduct required.” Second Restatement § 283 cmt. c.

The finder of fact should consider that the defendant is a

common carrier for hire when determining whether the carrier

“met the standard of care — that is, whether there has been a

breach of duty.” Gipson, 214 Ariz. at 143 ¶ 10, 150 P.3d at

230. But if the carrier has acted with reasonable care in light

of all the circumstances, it has discharged its duty to its

passengers.

III.

¶24 Brown argues that abandonment of the common carrier

doctrine would violate the “anti-abrogation” clause of the

Arizona Constitution, which provides that “[t]he right of action

to recover damages for injuries shall never be abrogated.”

Ariz. Const. art. 18, § 6. She reasons that the doctrine was

part of the English common law and adopted in Arizona before

statehood in Hogan, 13 Ariz. at 37-38, 108 P. at 241, and that

14
we therefore may not abandon the “highest degree of care”

standard.

¶25 We reject the argument. We have repeatedly noted that

the legislature “is entitled to regulate common law tort

actions,” as long as a claimant is left “‘a reasonable

possibility of obtaining legal redress.’” State Farm Ins. Cos.

v. Premier Manufactured Sys., Inc., 217 Ariz. 222, 229 ¶ 32, 172

P.3d 410, 417 (2007) (quoting Boswell v. Phoenix Newspapers,

Inc., 152 Ariz. 9, 18, 730 P.2d 186, 195 (1986)). Application

of the traditional negligence standard of care to actions

against common carriers does not violate the anti-abrogation

clause because it does not “prevent the possibility of redress

for injuries; the claimant remains entirely free to bring his

claim against all responsible parties.” Id. at 229 ¶ 34, 172

P.3d at 417. 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.

¶26 Our anti-abrogation jurisprudence normally asks

whether a statute unconstitutionally deprives a litigant of

access to the courts. See, e.g., id. at 228-29 ¶ 32, 172 P.3d

at 416-17. Brown argues that by departing from the common

carrier rule, this Court itself would violate the anti-

15
abrogation clause. But, if the legislature may regulate common

law tort actions as long as reasonable legal redress remains

available for those claiming injury, see id., the Constitution

imposes no greater restriction when this Court exercises its

“obligation to participate in the evolution of tort law so that

it may reflect societal and technological changes,” Law v.

Superior Court, 157 Ariz. 147, 156, 755 P.2d 1135, 1144 (1988).

“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.” Fernandez v. Romo, 132 Ariz. 447, 449, 646 P.2d 878,

880 (1982).

IV.

¶27 Brown also argues that if we abandon the common

carrier rule, we should do so only prospectively. The general

rule, however, is that “Arizona appellate opinions in civil

cases operate both retroactively and prospectively.” Law, 157

Ariz. at 160, 755 P.2d at 1148 (supplemental opinion). The

presumption in favor of retroactive application may be overcome

if three conditions are present:

1. The opinion establishes a new legal principle by
overruling clear and reliable precedent or by
deciding an issue whose resolution was not
foreshadowed;

2. Retroactive application would adversely affect the
purpose behind the new rule; and

16
 3. Retroactive application would produce substantially
inequitable results.

Id.

¶28 Those conditions are not satisfied here. Far from

overruling “clear and reliable precedent,” our decision was

foreshadowed by Lowrey, an opinion not a decade old. Indeed, as

noted above, no decision of this Court has required a heightened

standard of care instruction in a common carrier tort action.

Our decision today serves to avoid jury instructions that would

be quite difficult to apply, and retroactive application would

neither adversely affect this goal nor produce substantially

inequitable results.

V.

¶29 For the reasons above, we vacate the memorandum

decision of the court of appeals and remand to the superior

court for a new trial.

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
W. Scott Bales, Justice

17
_____________________________________
A. John Pelander, Justice

_____________________________________
Robert M. Brutinel, Justice

18