Filed 6/16/05
IN THE SUPREME COURT OF CALIFORNIA
JOHANA GOMEZ, as Administrator, etc., )
Petitioner,
S118489
v.
Ct.App. 2/8 B163651
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Los Angeles County
Super. Ct. No. BC258512
Respondent;
THE WALT DISNEY COMPANY et al.,
Real Parties in Interest
The estate of a passenger who died as a result of injuries allegedly
sustained while riding on the Indiana Jones attraction at Disneyland brought
causes of action based upon Civil Code section 2100, which requires a “carrier of
persons for reward” to “use the utmost care and diligence” for the safety of its
passengers, and Civil Code section 2101, which imposes a duty upon such a
carrier to provide “vehicles” that are “safe and fit for the purposes to which they
are put.” The superior court sustained a demurrer to these causes of action,
reasoning that the operator of an amusement park ride cannot be a carrier of
persons, but the Court of Appeal reversed.
For the reasons that follow, we agree with the Court of Appeal and
conclude that the operator of a roller coaster or similar amusement park ride can
1
be a carrier of persons for reward within the meaning of Civil Code sections 2100
and 2101.
FACTS AND PROCEDURAL HISTORY
On September 3, 2002, the estate of Cristina Moreno and her heirs filed a
second amended complaint for wrongful death and damages against Walt Disney
Company and related defendants (hereafter Disney) alleging that Moreno suffered
a brain injury and eventually died after riding on the Indiana Jones amusement
ride at Disneyland in Anaheim, California. Plaintiffs alleged that on June 25,
2000, Moreno was 23 years old and had traveled from her home in Spain with her
new husband on their honeymoon and rode on the Indiana Jones amusement ride,
during which Moreno “suffered serious injuries due to the violent shaking and
stresses imposed by the ride.” Plaintiffs alleged that “[a]s a proximate cause of
this incident, [Moreno] sustained injuries including a subarachnoid hemorrhage
and hydrocephalus which required extensive hospitalization and multiple brain
surgeries. The charges alone for the initial hospitalization and air ambulance to
Spain are in excess of $1,365,000.00.” Moreno died on September 1, 2000.
Plaintiffs alleged that the Indiana Jones attraction has been in operation
from at least 1995 and utilizes “jeep-style ride vehicles” that are “computer
controlled with 160,000 different combinations. The ride is fast, turbulent,
combining the ups and downs of a roller coaster with jarring jumps, drops, and
unpredictable movements. The $100 million Indiana Jones Attraction at
Disneyland shakes and whipsaws riders with such fury that many passengers are
forced to seek first aid and in some instances hospitalization.” They alleged that
the ride’s sudden changes in direction could cause, and did cause, bleeding in the
brain “similar to what happens in ‘shaken-baby syndrome.’ ”
In addition to causes of action for premises liability, “product negligence,”
strict products liability, and unfair business practices, plaintiffs brought a cause of
2
action under Civil Code section 2100 for “common carrier liability,” alleging that
Disney owed Moreno a “duty of utmost care and diligence” because the Indiana
Jones attraction consists of a “vehicle” that was “used to transport passengers
while, at the same time, providing them with entertainment and thrills.” Plaintiffs
also brought a cause of action under Civil Code section 2101 for “strict liability,”
alleging that Disney failed to “provide a vehicle safe and fit for transportation and
are not excused for default in this regard by any degree of care.”
Disney filed a demurrer to the second amended complaint challenging the
causes of action based upon Civil Code sections 2100 and 2101. The court
sustained the demurrer without leave to amend on the grounds “that amusement
rides such as roller coasters are not common carriers. . . . Here, the primary
purpose of the ride is entertainment, thrills, and the incidental consequence is that
people are transported in the process.”
The Court of Appeal granted plaintiffs’ petition for writ of mandate and
directed the superior court to overrule the demurrer on the ground that Disney
acted as a common carrier in operating the Indiana Jones attraction because
Disney “offers to the public to carry persons.” We granted Disney’s petition for
review.
DISCUSSION
Carriers of persons for reward have long been subject to a heightened duty
of care. (3 Harper & James, The Law of Torts (2d ed. 1986) The Nature of
Negligence, § 16.14, p. 506.) This heightened duty imposed upon carriers of
persons for reward stems from the English common law rule that common carriers
of goods were absolutely responsible for the loss of, or damage to, such goods.
(Beale, The History of the Carrier’s Liability in Selected Essays in Anglo-
American Legal History (Assn. of Am. Law Schools, edit., 1909) p. 148.) Carriers
of goods are bailees and, at “early law goods bailed were absolutely at the risk of
3
the bailee.” (Ibid.) Thus, carriers of goods for reward were “ ‘responsible
absolutely for the goods delivered, even when lost by theft, and regardless of
negligence.’ ” (Id. at p. 149, fn. 4.) This rule was applied in California in Agnew
v. Steamer Contra Costa (1865) 27 Cal. 425, 429, which held that a common
carrier of goods (in that case a horse), “was an insurer against all injury not
resulting from the act of God or the public enemies, or from the conduct of the
animal.”1
The precursor to recognizing a heightened duty of care for carriers of
persons came in 1680, when an English court applied the rule regarding carriers of
goods to personal property that a passenger on a stagecoach had delivered to the
driver, but which the driver failed to return at the end of the journey. (Lovett v.
Hobbs (1680) 89 Eng.Rep. 836.) The court rejected the argument that the driver
of a stagecoach could not be a common carrier regarding property brought by a
passenger, stating: “[I]f a coachman commonly carry goods, and take money for
so doing, he will be in the same case with a common carrier, and is a carrier for
that purpose, whether the goods are a passenger’s or a stranger’s . . . .” (Id. at
p. 837.)
The extension of applying the heightened duty of care for carriers of goods
to carriers of persons for reward “is probably of American origin, finding its
1
The liability of a common carrier of property currently is governed by Civil
Code section 2194, which provides that “an inland common carrier of property is
liable . . . for the loss or injury thereof from any cause whatever, except: [¶] 1. An
inherent defect, vice, or realness, or a spontaneous action, of the property itself; [¶]
2. The act of a public enemy of the United States, or of this State; [¶] 3. The act of
the law; or, [¶] 4. Any irresistible superhuman cause.” Civil Code section 2195
provides further that “[a] common carrier is liable, even in the cases excepted by
the last section, if his want of ordinary care exposes the property to the cause of
the loss.”
4
earliest expression in 1839 in Stokes v. Saltonstall [(1839) 38 U.S. 181].” (3
Harper & James, The Law of Torts, supra, The Nature of Negligence, § 16.14, p.
507.) In Stokes, a passenger in a stagecoach was injured when the coach was
upset. The court noted that a carrier of goods was absolutely liable for the loss of
or damage to such goods regardless of the cause “except the act of God, and the
public enemy,” but recognized that “a contract to carry passengers differs from a
contract to carry goods.” (Stokes, supra, 38 U.S. at p. 191.) “But although he
does not warrant the safety of the passengers, at all events, yet his undertaking and
liability as to them, go to this extent: that he . . . shall possess competent skill; and
that as far as human care and foresight can go, he will transport them safely.”
(Ibid.) Restating this standard, the court required the driver to act “with
reasonable skill, and with the utmost prudence and caution.” (Id. at p. 193.)
The rule that carriers of persons for reward must exercise great care for the
safety of their passengers was adopted in California in 1859 in Fairchild v. The
California Stage Company (1859) 13 Cal. 599, in which a passenger was injured
when the stagecoach in which she was riding overturned. The court rejected the
proposition that a carrier of persons for reward warrants the safety of its
passengers, but held the carrier to a high duty of care: “While it is true that the
proprietors of a stage-coach do not warrant the safety of passengers in the same
sense that they warrant the safe carriage of goods, yet they do warrant that safety
so far as to covenant for the exercise of extraordinary diligence and care to insure
it; and they do this as common carriers.” (Id. at p. 605.)
The California Legislature soon adopted a comprehensive scheme
governing carriage. Civil Code section 2085,2 which was enacted in 1872 and
2
Further statutory references are to the Civil Code, unless otherwise
indicated.
5
remains unchanged today, defines a “contract of carriage” in extremely broad
terms as “a contract for the conveyance of property, persons, or messages, from
one place to another.” Similarly, section 2168 defines a “common carrier” in
expansive terms: “Every one who offers to the public to carry persons, property,
or messages, excepting only telegraphic messages, is a common carrier of
whatever he thus offers to carry.”
Carriers of persons are treated differently under the statutory scheme
depending upon whether they act gratuitously or are paid. A carrier of persons
“without reward” is subject only to a duty to “use ordinary care and diligence for
their safe carriage.” (§ 2096.) But a carrier of persons for reward, as was true at
common law, is subject to a heightened duty. Section 2100, upon which plaintiffs
rely in the present case, states: “A carrier of persons for reward must use the
utmost care and diligence for their safe carriage, must provide everything
necessary for that purpose, and must exercise to that end a reasonable degree of
skill.” “Common carriers are not, however, insurers of their passengers’ safety.
Rather, the degree of care and diligence which they must exercise is only such as
can reasonably be exercised consistent with the character and mode of conveyance
adopted and the practical operation of the business of the carrier. [Citations.]”
(Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785.)3
3
Webster v. Ebright (1992) 3 Cal.App.4th 784 held that section 2100 applies
only to common carriers, and not to private carriers for reward. We stated in
Lopez v. Southern Cal. Rapid Transit Dist., supra, 40 Cal.3d 780, 785, that “[t]he
duty imposed by section 2100 applies to public carriers as well as private carriers
. . . .” We need not resolve the point in the present case, because the parties do not
dispute that Disney, if it is a carrier of persons for reward at all, is a common
carrier rather than a private carrier. (§ 2168 [“Every one who offers to the public
to carry persons . . . is a common carrier . . . .”].)
6
Section 2101, upon which plaintiffs also rely, further imposes a duty to
provide safe vehicles: “A carrier of persons for reward is bound to provide
vehicles safe and fit for the purpose to which they are put, and is not excused for
default in this respect by any degree of care.”
While the rules governing carriage of persons for hire found its first
expressions in California in cases involving passengers in stagecoaches (Boyce v.
California Stage Co. (1864) 25 Cal. 460, 468; Fairchild v. The California Stage
Company, supra, 13 Cal. 599, 605), it soon became apparent that the term “carrier
of persons” would be given an expansive definition. In Treadwell v. Whittier
(1889) 80 Cal. 574, 576, a hydraulic elevator in the defendants’ store fell and
injured the plaintiff. The court had no difficulty concluding that the operators of
the elevator qualified as carriers of persons for reward: “The defendants used their
elevator in lifting persons vertically to the height of forty feet. That they were
carriers of passengers, and should be treated as such, we have no doubt. The same
responsibilities as to care and diligence rested on them as on the carriers of
passengers by stage-coach or railway.” (Id. at p. 585.)
As the court in Treadwell elaborated: “Persons who are lifted by elevators
are subjected to great risks to life and limb. They are hoisted vertically, and are
unable, in case of the breaking of the machinery, to help themselves. The person
running such elevator must be held to undertake to raise such persons safely, as far
as human care and foresight will go. The law holds him to the utmost care and
diligence of very cautious persons, and responsible for the slightest neglect. [¶]
Such responsibility attaches to all persons engaged in employments where human
beings submit their bodies to their control by which their lives or limbs are put at
hazard, or where such employment is attended with danger to life or limb. The
utmost care and diligence must be used by persons engaged in such employments
to avoid injury to those they carry.” (Treadwell v. Whittier, supra, 80 Cal. 574,
7
591.) It now is well established that commercial operators of elevators and
escalators are carriers of persons for reward. (Vandagriff v. J.C. Penney Co.
(1964) 228 Cal.App.2d 579, 582; 6 Witkin, Summary of Cal. Law (9th ed. 1988)
Torts, § 768, p. 107.)
The expansive definition of carriers of persons for reward was continued in
Smith v. O’Donnell (1932) 215 Cal. 714, which held that an airplane pilot who
offered sightseeing flights to the ocean and back was a carrier of passengers for
reward despite the circumstance that the flights took off and landed at the same
airport. The court noted that the pilot “ ‘was not engaged in carrying passengers
from one terminal, i.e., from the Long Beach Municipal Airport to another fixed
landing field, but rather of carrying “Two passengers for five dollars. . . . Up and
down the road toward the ocean.” In other words, he was engaged “in the aviation
business” for the purpose of taking those who might apply on a flight from the
municipal field toward the ocean and back again, landing on the field whence he
started.’ ” (Id. at p. 716.)
The court in O’Donnell acknowledged the broad scope that had been given
to the term carriers of persons for reward, noting that “ ‘any of the following may
be common carriers, viz., stage coaches, busses, automobiles, hackney coaches,
cabs, drays, carts, wagons, sleds, elevators and in fact almost every vehicle which
can be employed for the purpose.’ ” (Smith v. O’Donnell, supra, 215 Cal. 714,
719.) This court cited with approval the “ ‘interesting and instructive’ ” decision
in O’Callaghan v. Dellwood Park Co. (1909) 242 Ill. 336, which held that a
“scenic railway” was a common carrier, stating: “ ‘ “Why is not this rule (the rule
of liability applying to common carriers) applicable to those operating cars upon a
scenic railway such as the one here in question? The passengers carried therein are
subject to great risk to life and limb. The steep inclines, sharp curves, and great
speed necessarily are sources of peril.” ’ ” (Smith v. O’Donnell, supra, 215 Cal.
8
719.) We noted that the court in O’Callaghan rejected the argument that the
purpose for which the passenger purchases the ride should make a difference:
“ ‘Should the motive which causes a person to take passage make any difference
as to the degree of responsibility with which the carrier is charged? Passenger
elevators are frequently operated in buildings in order to convey persons to some
vantage point where they can overlook a great city, or some other object of
interest, and trips on electric cars are often made solely for pleasure. . . . We think
not only by fair analogy, but, on reason and sound public policy, appellant should
be held to the same degree of responsibility in the management of the railway in
question as a common carrier.’ ” (Ibid.)
There is an unbroken line of authority in California classifying recreational
rides as common carriers, including McIntyre v. Smoke Tree Ranch Stables (1962)
205 Cal.App.2d 489, which held that the operator of a mule train that took
passengers from Palm Springs to Tahquitz Falls and back was a common carrier.
The Court of Appeal concluded: “The only reasonable conclusion to be drawn
from these facts is that a person who paid a roundtrip fare for the purpose of being
conducted by mule over the designated route between fixed termini, purchased a
ride; that the defendant offered to carry such a person by mule along that route
between these termini; and that the transaction between them constituted an
agreement of carriage.” (Id. at p. 492; Squaw Valley Ski Corp. v. Superior Court
(1992) 2 Cal.App.4th 1499 [ski resort chair lift facility is a common carrier].)
The first California case to address whether the operator of a roller coaster
was a carrier of persons for reward was Barr v. Venice Giant Dipper Co., Ltd.
(1934) 138 Cal.App. 563, 563-564, which described the ride upon which the
plaintiff was injured as a “roller coaster” that was “in the nature of a miniature
scenic railway consisting of a train of small cars constructed to carry two
passengers each.” The Court of Appeal held that the operator of the ride was a
9
common carrier and, therefore, the trial court properly had instructed the jury
under section 2100. The appellate court relied upon “the general and accepted rule
which is thus stated in 10 C. J. 609: ‘The owner and operator of a scenic railway
in an amusement park is subject, where he has accepted passengers on such
railway for hire, to the liabilities of a carrier of passengers generally.’ ” (Barr v.
Venice Giant Dipper Co., Ltd., supra, 138 Cal.App. at p. 564)
In Kohl v. Disneyland, Inc. (1962) 201 Cal.App.2d 780, the Court of
Appeal held that the operators of a stagecoach ride at Disneyland were common
carriers. The plaintiffs were riding on The Surrey with the Fringe on Top ride,
which was a horse-drawn stagecoach, when the horses became frightened and ran,
causing the coach to tip over. The Court of Appeal held that “because of the
passenger-carrier relationship between the parties, the duty imposed upon the
defendant was to exercise the utmost care and diligence . . . .” (Id. at p. 784.)
A federal district court in California echoed the result in Kohl, holding that
the operators of the Pirates of the Caribbean amusement ride at Disneyland were
common carriers. (Neubauer v. Disneyland, Inc. (C.D.Cal. 1995) 875 F.Supp.
672.) The plaintiffs in Neubauer were injured when the boat in which they were
riding was struck from behind by another boat. The federal district court held:
“Under plaintiffs’ allegations, Disneyland’s amusement park boat ride falls within
California’s broad statutory definition of a common carrier. At the ‘Pirates of the
Caribbean,’ defendant offered to the public to carry patrons. Under these
allegations, the duty of utmost care and diligence would apply to Disneyland.”
(Id. at p. 674.)
Although California law has consistently defined broadly the term “carrier
of persons for reward” (§§ 2100, 2101), and included within that definition
amusement park rides like roller coasters, and other recreational forms of carriage,
the same has not always been true in other jurisdictions.
10
Many of the decisions from other jurisdictions that hold that operators of
amusement park rides are not common carriers follow the reasoning in Harlan v.
Six Flags Over Georgia, Inc. (Ga. 1982) 297 S.E.2d 468. Harlan involved an
amusement park ride called The Wheelie that consisted of cars mounted on the
sprockets of a wheel that rotated its passengers at increasing speed, eventually
suspending them upside down by the power of centrifugal force. Harlan relied
upon a Georgia statute that imposed a duty to exercise extraordinary care to
protect passengers “who travel in some public conveyance.” (Id. at p. 469.) The
court held that the ride was not a “public conveyance” within the meaning of the
statute because passengers board rides and modes of transportation such as
elevators with “dissimilar expectations”: “Persons using ordinary transportation
devices, such as elevators and buses, normally expect to be carried safely,
securely, and without incident to their destination. Amusement ride passengers
intend to be conveyed thrillingly to a place at, or near to, the point they originally
boarded, so that carriage is incidental.” (Ibid.)
Several cases have adopted the reasoning in Harlan. Lamb v. B & B
Amusements Corp. (Utah 1993) 869 P.2d 926 held that a children’s roller coaster
is not a common carrier. The court noted that common carriers are held to a high
standard of care because “[p]assengers entrust common carriers with their personal
safety, have little if any opportunity to protect themselves from harm caused by a
common carrier, and pay the carrier for safe transportation. In addition, the public
has an important stake in having the public transportation of persons be as safe as
possible.” (Id. at p. 930.) The court acknowledged that operators of amusement
park rides similarly “are entrusted with passengers who depend on the operators
for their safety,” but relied nonetheless on the reasoning in Harlan and concluded
that “[a]musement rides are not designed to provide comfortable, uneventful
transportation, even when the equipment operates without incident and as
11
intended.” (Id. at p. 931; Speed Boat Leasing, Inc. v. Elmer (Tex. 2003) 124
S.W.3d 210, 213 [speedboat offering “thrill” rides in the Gulf of Mexico not a
common carrier because “its primary purpose is to entertain, not to transport from
place to place”].)
Firszt v. Capitol Park Realty Co. (Conn. 1923) 120 A. 300, 303-304, held
that an amusement park ride called an “aeroplane swing,” which consisted of cars
made to resemble airplanes that were suspended by steel cables from a rotating
tower, was not a carrier. The court recognized that there was justification for
applying the rules applicable to common carriers because “the revolving cars or
boats are quite similar to the moving trains upon a railroad in the motive power
employed and in the considerable hazard of operation of each . . . .” (Id. at p.
303.) Nevertheless, the court concluded the rules governing common carriers did
not apply because the patron of an amusement park ride is seeking entertainment,
not transportation: “One traveling upon his lawful occasions must perforce use the
ordinary means of transportation, and is practically compelled to place himself in
the care of carriers of passengers, and so the rule applied to carriers holds them to
the highest degree of care and diligence. On the other hand, one desiring for his
delectation to make use of pleasure-giving devices similar to the one in question is
under no impulsion of business or personal necessity. He is seeking entertainment,
and when invited by a manager to avail himself of the equipment provided by
certain forms of amusement, he can properly ask only that he be not exposed by
the carelessness of those in charge of any given instrumentality to harm
preventable by care appropriate to the operation of such instrumentality.” (Id. at
pp. 303-304; Sergermeister v. Recreation Corp. of America (Fla. 1975) 314 So.2d
626, 632.)
In Bregel v. Busch Entertainment Corp. (Va. 1994) 444 S.E.2d 718, the
Virginia Supreme Court concluded without citation to authority that the
12
Skyride — a monocable system that transported patrons in gondolas to three
different locations within the Busch Gardens amusement park — was not a
common carrier because the ride “is for entertainment purposes, and the
transportation function is incidental to the entertainment function.” (Id. at p. 719.)
Similarly, Wright v. Midwest Old Settlers and Threshers Assoc. (Iowa 1996) 556
N.W.2d 808, held that a nonprofit association that ran a five-day public event was
not a common carrier by virtue of operating a “train” consisting of two cars pulled
by a tractor that sold rides around the grounds. The court reasoned: “[T]he
association’s event is limited in scope and duration to only a few days each year.
. . . . The purpose of this train is not only to provide transportation around the
grounds, but also to entertain the public.” (Id. at p. 811; Gunther v. Smith (Md. Ct.
Spec. App. 1989) 553 A.2d 1314, 1316 [operator of a horse-drawn hayride at a
private, company picnic was not a common carrier].)
As noted above, in 1932 this Court rejected the view later espoused in
Harlan and its progeny that whether a form of transportation constitutes carriage
of persons for reward depends upon the purpose of the transportation. We held
instead in Smith v. O’Donnell, supra, 215 Cal. 714 that the operator of a
sightseeing airplane was a carrier of persons for reward. We found persuasive the
contrary reasoning in O’Callaghan v. Dellwood Park Co., supra, 242 Ill. 336, that
a passenger’s motive for seeking transportation was irrelevant in determining the
carrier’s liability and that the carrier owed the same high duty of care whether the
passenger rode for pleasure or business.4
4
Some cases that hold that operators of amusement park rides are not
common carriers rely upon statutory provisions that differ from those in
California. In Eliason v. United Amusement Co. (Or. 1972) 504 P.2d 94, 96, the
court relied on an Oregon statute that provided that the operator of an amusement
park ride, including a roller coaster, “shall be deemed not a common carrier;
(footnote continued on next page)
13
We continue to adhere to the view we adopted in Smith v. O’Donnell, supra
215 Cal. 714. As the cases cited above make clear, our conclusion that the
operator of a roller coaster or similar amusement park ride can be a carrier of
persons for reward is consistent with the authority holding that operators of ski
lifts are common carriers, despite the fact that the skiers who ride such lifts are
engaged in recreation. (Squaw Valley Ski Corp. v. Superior Court, supra, 2
Cal.App.4th 1499.) A passenger’s purpose in purchasing transportation, whether
it be to get from one place to another or to travel simply for pleasure or
sightseeing, does not determine whether the provider of the transportation is a
carrier for reward. The passenger’s purpose does not affect the duty of the carrier
to exercise the highest degree of care for the safety of the passenger.
Certainly there is no justification for imposing a lesser duty of care on the
operators of roller coasters simply because the primary purpose of the
transportation provided is entertainment. As one federal court noted, “amusement
rides have inherent dangers owing to speed or mechanical complexities. They are
operated for profit and are held out to the public to be safe. They are operated in
the expectation that thousands of patrons, many of them children, will occupy their
seats.” (U.S. Fidelity & Guaranty Co. v. Brian (5th Cir. 1964) 337 F.2d 881, 883.)
Riders of roller coasters and other “thrill” rides seek the illusion of danger while
being assured of their actual safety. The rider expects to be surprised and perhaps
even frightened, but not hurt. The rule that carriers of passengers are held to the
highest degree of care is based on the recognition that “ ‘[t]o his diligence and
(footnote continued from previous page)
however, such owner or operator shall exercise the highest degree of care for the
safety of persons using the devices compatible with the practical operation of the
devices being used.”
14
fidelity are intrusted the lives and safety of large numbers of human beings.’ ”
(Treadwell v. Whittier, supra, 80 Cal. 574, 591.) This applies equally to the rider
of a roller coaster as it does to the rider of a bus, airplane, or train.5
Other jurisdictions agree with the rule adopted in California. The Alabama
Supreme Court in Best Park & Amusement Co. (Ala. 1915) 68 So. 417, 418,
followed the decision of the Illinois Supreme Court in O’Callaghan v. Dellwood
Park Co., supra, 89 N.E. 1005, and held that a “scenic railway” in an amusement
park “ ‘should be held to the same degree of responsibility in the management of
the railway in question as a common carrier.’ ” (Bibeau v. Fred W. Pearce Corp.
(Minn. 1928) 217 N. W. 374, 376; Tennessee State Fair Assn. v. Hartman (Tenn.
5
We hold only that the operator of a roller coaster or similar amusement park
ride can be a carrier of persons for reward under sections 2100 and 2101. We do
not address, and express no opinion regarding, whether other, dissimilar,
amusement rides or attractions can be carriers of persons for reward.
The dissent and amici curiae in support of Disney assert incorrectly that our
decision in McCordic v. Crawford (1943) 23 Cal.2d 1 is controlling. The
defendant in McCordic leased the Venice Pier and contracted with various
concessionaires to operate carnival attractions, including a ride called the Loopa
on which the plaintiff was injured. We held that the defendant could be found
liable under principles of premises liability if he failed to reasonably supervise the
concessionaire who operated the ride, stating: “ ‘[A] proprietor, or one who
operates a place of amusement, owes a legal duty to exercise due care to protect
from injury individuals who come upon his premises by his express or implied
invitation. He must see that such premises are in a reasonably safe condition. It
constitutes a breach of this duty for him to fail to exercise reasonably careful
supervision of the appliances or methods of operating concessions under his
management. The proprietor or operator of such a place of amusement is liable to
an invited member of the public for injuries received as the result of negligence on
the part of an independent contractor or concessionaire when it is shown that the
failure to exercise such supervision proximately results in injuries to a patron.’ ”
(Id. at pp. 6-7.) Our decision did not address the duty of care of the operator of an
amusement park ride or whether the operator of such a ride was a carrier of
persons for reward and thus does not apply in the present case.
15
1915) 183 S. W. 735, 736; Lyons v. Wagers (Tenn. Ct. App. 1966) 404 S.W.2d
270, 274.) The Missouri Supreme Court stated without explanation in Pointer v.
Mountain Ry. Const. Co. (1916) 269 Mo. 104 that “scenic railways . . . are not
common carriers of passengers in any sense of the word,” but subsequent
decisions in Missouri have departed from that stance. (Brown v. Winnwood
Amusement Co. (Mo.Ct.App. 1931) 34 S. W. 2d 149, 152 [operator of roller
coaster held to the degree of care required of common carriers]; Cooper v.
Winnwood Amusement Co. (Mo.Ct.App. 1932) 55 S. W. 2d 737, 742 [same].)
The Colorado Supreme Court held in Lewis v. Buckskin Joe’s, Inc. (Colo.
1964) 396 P.2d 933, that a stagecoach ride that traveled over a fixed course as a
tourist attraction in a replica of a ghost mining town should be held to the highest
degree of care regardless of the passenger’s purpose in entering the ride: “It is not
important whether defendants were serving as a carrier or engaged in activities for
amusement. The important facts are, the plaintiffs had surrendered themselves to
the care and custody of the defendants; they had given up their freedom of
movement and actions; there was noting they could do to cause or prevent the
accident. Under the circumstances of this case, the defendants had exclusive
possession and control of the facilities used in the conduct of their business and
they should be held to the highest degree of care . . . .” (Id. at p. 939.)
The Oklahoma Supreme Court held in Sand Springs Park v. Schrader
(Okla. 1921) 198 P. 983, 987-988, that the operators of “a scenic railway or rolly-
coaster” was “bound to use the highest degree of care and caution for the safety of
his patrons,” observing: “We are unable to see the force of the contention that one
who rides a scenic railway should be held to assume any other or further risks than
would a passenger riding a passenger train. The fact that the passenger on a scenic
railway might be seeking pleasure and recklessly accepts the risks, it may be
16
stated, would be no more different than would a passenger riding a passenger train
on a pleasure trip.”
Disney points to the fact that section 2085, which defines a contract of
carriage for purposes of sections 2100 and 2101, states that a contract of carriage
is a “contract for the conveyance of property, persons, or messages, from one
place to another.” Disney argues that the amusement ride at issue is not included
within this definition because it is “confined in a single building” and thus does
not transport persons “from one place to another.” But the same can be said about
elevators and escalators, which long have been held to constitute carriage of
persons from one place to another although they are confined in a single building.
(Treadwell v. Whittier, supra, 80 Cal. 574; 6 Witkin, Summary of Cal. Law,
supra, Torts, § 768, p. 107.) Further, we long ago rejected such a limited
interpretation of “from one place to another” by including within the definition of
carriage of persons for reward a sightseeing airplane ride that took off and landed
at the same airport. (Smith v. O’Donnell, supra, 215 Cal. 714.) The circumstance
that a passenger begins and ends a journey in the same place does not mean he or
she has not been transported. A tourist in San Francisco who takes a round-trip
ride on a cable car solely for entertainment has been transported and is no less
entitled to a safe ride than another passenger on the same cable car who
disembarks earlier to visit a store or restaurant.
The dissent disagrees, asserting that “it is clear that the Legislature
understood the phrase ‘carrier of persons for reward’ in sections 2100 and 2101 to
refer to those who provide transportation services to passengers traveling from one
point to another. . . . [¶] The Indiana Jones ride does not provide such
transportation and serves no transportation function.” (Dis. opn., post, at pp. 4-5.)
The precise contours of the dissent’s analysis are difficult to discern.
17
The dissent reaches the surprising conclusion that “a roller coaster is not
designed to provide transportation at all.” (Dis. opn., post, at p. 19, fn. 5.) The
dissent reasons that the phrase “carrier of persons for reward” in sections 2100 and
2101 only “refer[s] to those who provide transportation services to passengers
traveling from one point to another.” (Id. at pp. 6-7.) But we know that the
distance between these two points (assuming any distance at all is required) need
not be great. It is well established that an elevator may be a carrier of persons
even though the passenger is transported only from one floor of a building to
another. Thus, accepting the dissent’s reasoning would mean that a roller coaster
that began on an elevated platform and ended one floor below on ground level
would be a carrier of persons, but a roller coaster that began and ended in the same
place would not be. The dissent does not explain why the Legislature would want
to create such a meaningless distinction.
The essence of the dissent’s analysis, therefore, appears to be that a roller
coaster “serves no transportation function,” because “its function is solely to thrill”
its passengers and “[t]he movement along the track is purely incidental to the
ride’s purpose.” (Dis. opn., post, at p. 5.) As noted above, the view that roller
coasters are not carriers of persons because “passengers intend to be conveyed
thrillingly . . . so that carriage is incidental” has been accepted as the rule in some
other jurisdictions. (Harlan, supra, 297 S.E.2d 468, 469.) But California
considered and rejected this approach more than 70 years ago, holding instead that
a passenger’s purpose in purchasing transportation does not determine whether the
provider of the transportation is a carrier of persons. (Smith v. O’Donnell, supra,
215 Cal. 714, 719.)
In a novel twist, the dissent denies relying upon the passenger’s purpose,
noting in a footnote that its “analysis does not depend on . . . ‘ “the motive which
causes a person to take passage.” ’ [Citation.]” (Dis. opn., post, at p. 19, fn. 5.)
18
Rather, the dissent argues that a device is a carrier of persons “if the device at
issue is fundamentally a means of transportation.” (Ibid.) But the dissent does not
explain how the fundamental nature of a transportation device should be
determined. Fundamentally, a roller coaster is intended to transport people along a
fixed route in an exciting and fun manner. It is not clear, therefore, why a roller
coaster is not fundamentally a means of transportation for the same reason that a
helicopter sightseeing ride that begins and ends at the same place is a means of
transportation, despite the fact that its primary purpose is to thrill and amuse its
passengers.
Our decision in Golden Gate Scenic Steamship Lines, Inc. v. Public
Utilities Commission (1962) 57 Cal.2d 373 (Golden Gate), does not affect our
analysis, because that case addressed the jurisdiction of the Public Utilities
Commission rather than the meaning of Civil Code sections 2100 and 2101.
Public Utilities Code section 1007 required entities providing “transportation of
persons or property, for compensation, between points in this state” to obtain a
certificate of public convenience and necessity from the Public Utilities
Commission. We held in Golden Gate that a boat that carried paying passengers
on a sight-seeing tour of San Francisco Bay need not obtain such a certificate
because the boats “do not operate between points,” noting that the trips began and
ended on the same wharf. (Golden Gate, supra, at p. 376.) We based our decision
on the language of Public Utilities Code section 1007, explaining that the word
“points” as used in that statute means “termini” and it thus follows that “there
must be two or more ends-of-the-line, stations, towns, or places between which the
vessel operates.” (Id. at p. 380.) We added that “[t]he word ‘between’ in ordinary
usage connotes two different points bounding or defining some line or area.”
(Ibid.) Public Utilities Code section 1007 is part of a regulatory regime for
transportation, the purpose of which is distinct from the liability standard for
19
carriers of persons for reward, which is set forth in the Civil Code. (See Squaw
Valley Ski Corp. v. Superior Court, supra, 2 Cal.App.4th 1499, 1513 [operators of
ski lifts are common carriers under Civil Code section 2186 despite Public
Utilities Code section 212, which exempts ski lifts from the definition of
“common carrier” for purposes of regulation by the Public Utilities Commission].)
Because the present case does not involve Public Utilities Code section 1007, our
decision in Golden Gate, supra, 57 Cal.2d 373, does not apply.
The Court of Appeal in City of St. Helena v. Public Utilities Commission
(2004) 119 Cal.App.4th 793 gave an overly expansive reading to our decision in
Golden Gate, supra, 57 Cal.2d 373, concluding that our “definition of
‘transportation’ was not confined to section 1007, rather it was in accord with the
word’s ordinary meaning.” (City of St. Helena v. Public Utilities Commission,
supra, 119 Cal.App.4th at p. 802.) City of St. Helena held that the Wine Train,
which provided a round trip excursion through the wine country in Napa Valley,
was not subject to regulation as a public utility because it “does not qualify as a
common carrier providing transportation.” (Id. at p. 796.) In reaching that
conclusion, the Court of Appeal did not discuss or attempt to distinguish our
decision in Smith v. O’Donnell, supra, 215 Cal. 714, or the Court of Appeal’s
decision in McIntyre v. Smoke Tree Ranch Stables, supra, 205 Cal.App.2d 489.
We express no view on whether the Court of Appeal was correct that the Wine
Train is not subject to regulation as a public utility, but we disapprove the decision
in City of St. Helena v. Public Utilities Commission, supra, 119 Cal.App.4th 793,
to the extent it suggests that, in general, a provider to the public of roundtrip sight-
seeing excursions is not a carrier of persons for reward.
20
Disney observes that, effective July 12, 2003, the state Office of
Administrative Law approved a series of regulations governing the operation of
“Permanent Amusement Rides” (Cal. Code Reg., tit. 8, div. 1, ch. 3.2, § 344.5 et
seq.) and cites our decision in Ramirez v. Plough (1993) 6 Cal.4th 539, to support
the argument that we should defer to those regulations. We held in Ramirez that a
drug manufacturer’s compliance with applicable statutes and regulations that
required providing warnings to consumers in English only satisfied its duty to
warn.
The present case arises from an order sustaining a demurrer. The only issue
before us, therefore, is whether plaintiffs can state causes of action under sections
2100 and 2101 governing the liability of carriers of persons for reward. We are
not called upon to determine in the present proceedings whether compliance by
Disney with the cited regulations, which were approved after the incident at issue
here, would satisfy its duty of care. The issue before us is only whether plaintiffs
may maintain a cause of action under sections 2100 and 2101. The administrative
regulations cited by Disney do not affect that issue.
Disney argues that the term “carrier of persons for reward” as used in
sections 2100 and 2101 must be interpreted to exclude operators of amusement
park rides because ‘[t]reating amusement rides as common carriers . . . renders
part of the common carrier statutory scheme utterly irrelevant.” Disney points to
section 2104, which provides that “[a] carrier of persons for reward must travel at
a reasonable rate of speed, and without any unreasonable delay, or deviation from
the proper route,” section 2172, which requires that a common carrier “must start
at such time and place as he announces to the public . . . in order to connect with
carriers on other lines of travel,” and section 2184, which provides that “a
common carrier of persons must provide a sufficient number of vehicles to
21
accommodate all the passengers who can be reasonably expected to require
carriage at any one time.”
It is of course true that not all the statutes pertaining to carriers of persons
for reward apply to every form of transportation. But it does not follow that any
form of transportation to which these statutes do not apply cannot be a common
carrier and carrier of persons. It is well established that commercial operators of
elevators are carriers of persons for reward, although it would make little sense to
require that they travel at a reasonable rate, or not deviate from their proper route,
or start at an announced time in order to connect with other forms of travel. The
same can be said of operators of ski lifts or those offering sight-seeing rides on
airplanes or helicopters.
We conclude, therefore, that the operator of a roller coaster or similar
amusement park ride can be a carrier of persons for reward under sections 2100
and 2101. Accordingly, we agree with the Court of Appeal that the superior court
should have overruled Disney’s demurrer to those counts of the amended
complaint raising causes of action under sections 2100 and 2101.
22
DISPOSITION
The judgment of the Court of Appeal is affirmed.
MORENO, J.
WE CONCUR: KENNARD, J.
WERDEGAR,
J.
*VOGEL,
J.
*
Associate Justice, Court of Appeal, Second Appellate District, Division 1,
assigned by the Chief Justice pursuant to article VI, section 6, of the California
Constitution.
23
DISSENTING OPINION BY CHIN, J.
I disagree with the majority’s holding that the Walt Disney Company
(Disney), in operating the Indiana Jones ride at Disneyland, constitutes a “carrier
of persons for reward” within the meaning Civil Code sections 2100 and 2101.1
When the Legislature passed these statutes in 1872, it almost certainly did not
intend that they would be applied to the kind of amusement park thrill ride at issue
here, and the majority notably does not assert otherwise. Under our rules of
statutory interpretation, this should be the controlling factor in deciding the
question at issue here.
It is therefore surprising that the majority, in reaching its conclusion, makes
no effort to determine the Legislature’s intent and fails even to identify this as a
relevant consideration. Instead, the majority bases its conclusion solely on the
purportedly “expansive definition” of the statutory language (maj. opn., ante, at p.
7) that California courts have adopted in what the majority asserts is “an unbroken
line of authority” involving “recreational rides” since the statutes were passed.
(Id. at p. 7.) As I demonstrate below, the cases the majority cites do not compel
the conclusion the majority reaches in this case. Because the majority’s holding is
1
All further statutory references are to the Civil Code.
1
neither consistent with the Legislature’s intent nor required by our case law, I
dissent.
I. Background Facts
At issue in this demurrer proceeding is the legal sufficiency of the claims
alleged under sections 2100 and 2101 in plaintiffs’ second amended complaint.
That complaint alleges that Cristina Moreno suffered a fatal brain injury as a result
of riding “an amusement ride” known as the “Indiana Jones Attraction” at “the
Disneyland Amusement Park,” which is owned and operated by Disney.
According to the complaint, this attraction “consists of a dynamic ride vehicle
which is used to enhance the sensation of vehicle motion and travel experience by
passengers in the vehicle, while it is being used in an amusement park
environment. The vehicle is used to transport passengers while, at the same time,
providing them with entertainment and thrills.” It “is configured to resemble an
off-road jeep,” and “is moved along a predetermined path on a track.” “The ride is
“fast” and “turbulent, combining the ups and downs of a roller coaster with jarring
jumps, drops, and unpredictable movements” that “shake[] and whipsaw[] riders
with [great] fury.” The complaint alleges that the ride’s “sudden changes in
direction” caused “bleeding in the brain” that ultimately resulted in Ms. Moreno’s
death.
II. The Legislature Did Not Intend to Treat the Operator of an
Amusement Park Thrill Ride as a “Carrier of Persons” Under the
Statutes
At issue here is the proper construction of sections 2100 and 2101. Thus,
“[a]s in any case involving statutory interpretation, our fundamental task here is to
determine the Legislature’s intent so as to effectuate the law’s purpose.
[Citation.]” (People v. Murphy (2001) 25 Cal.4th 136, 142 (Murphy).) Of course,
over the years, we have adopted a number of rules to aid us in determining the
Legislature’s intent regarding a statute. Notably, in its analysis, the majority
2
ignores both our task—to determine the Legislature’s intent—and the relevant
rules of statutory construction for performing it. Applying those rules, I conclude
that the Legislature did not intend to treat the operator of an amusement park thrill
ride like the one at issue here as a “carrier of persons for reward” within the
meaning of sections 2100 and 2101.
The first rule of statutory construction requires us “to determine the
Legislature’s intent when it enacted the statute” in question. (City of Burbank v.
State Water Resources Control Bd. (2005) 35 Cal.4th 613, 625; see also Peralta
Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal.3d
40, 52 [our task is to determine the “intent of the Legislature that enacted the
law”].) Because the intent of the enacting Legislature controls, we must interpret
the words of the statutes “in the sense in which they would have been understood
at the time of the enactment. [Citations.]” (People v. Cruz (1996) 13 Cal.4th 764,
775.) Here, because sections 2100 and 2101 were enacted in 1872 and have never
been amended, “the intention of the legislature at [that] time . . . control[s]” our
construction of the phrase “carrier of persons for reward” in those sections.
(Walther v. Southern Pacific Co. (1911) 159 Cal. 769, 775.) Thus, we must
interpret that phrase in the sense it was understood in 1872, i.e., “in light of its
historical background and evident objective. [Citations.]” (United Business Com.
v. City of San Diego (1979) 91 Cal.App.3d 156, 170.)
In determining the intent and understanding of the 1872 Legislature, we
give substantial weight to the comments of the California Code Commission
(Commission), which proposed the 1872 Civil Code. (See Li v. Yellow Cab Co.
(1975) 13 Cal.3d 804, 817 [“true meaning and intent” of Civil Code section
“cannot proceed without reference to the Code Commissioners’ Note”]; see also
Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 249 [“Reports of commissions
which have proposed statutes that are subsequently adopted are entitled to
substantial weight”].) The notes to sections 2100 and 2101 consist primarily of
quotations and citations of cases. All of the cited cases involve passengers using
3
either railroads or horse-drawn coaches and stages to travel from one point to
another. (Code commrs. notes, foll. Ann. Civ. Code, §§ 2100, 2101 (1st ed. 1874,
Haymond & Burch, commrs. annotators) p. 7.) The principal case discussed in the
note to section 2100 involved a stagecoach, and it required the court to determine
the standard of liability for “carriers of passengers for hire.” (Ingalls v. Bills
(1845) 50 Mass. 1, 15.) In that case, the court explained that this issue was of
“much importance” to those “engaged in business which requires their
transportation from place to place in vehicles furnished by others . . . .” (Id. at p.
6.)
Also relevant here is the note to section 2168, which provides that “[e]very
one who offers to the public to carry persons, property, or messages, excepting
only telegraphic messages, is a common carrier of whatever he thus offers to
carry.” One portion of that note is entitled, “Who are Treated as Common Carriers
by the Courts of California,” and it lists the following: “Stage Coaches,”
“Steamboats,” “Steamtugs,” Railroads,” and “Ferryman.” (Code commrs. notes,
foll. Ann. Civ. Code, § 2168, supra, at pp. 27-28.) Elsewhere, the note
summarizes a prominent treatise on bailments, which listed the following as
“Common carriers . . . : 1. Proprietors of stage coaches, and stage wagons, and
railroad cars, which ply between different places and carry goods for hire . . . , so
are truckers, wagoners, teamsters, cartmen, and porters, who undertake to carry
goods for hire, as a common employment, from one town to another . . . , or from
one part of a town or city to another . . . . 2. Owners and masters of ships,
steamboats, lightermen, hoymen, barge owners, ferrymen, canal boatmen, and
others employed in like manner.” (Id. at p. 26.) The note also quotes a
Massachusetts decision that “defined a common carrier to be ‘one who undertakes,
for hire, to transport the goods of such as choose to employ him from place to
place.’ ” (Ibid.) Based on these notes, it is clear that the Legislature understood
the phrase “carrier of persons for reward” in sections 2100 and 2101 to refer to
4
those who provide transportation services to passengers traveling from one point
to another.
The Indiana Jones ride does not provide such transportation and serves no
transportation function. By design, its function is solely to thrill park patrons
through excessive speed and, as alleged in the complaint, “jarring jumps, drops,
and unpredictable movements.” It is chosen by amusement park patrons
specifically because of these features. The movement along the track is purely
incidental to the ride’s purpose. In these respects, the Indiana Jones ride bears no
resemblance to the modes of transportation mentioned in the Commission’s notes.
It simply is not what the Legislature had in mind as a “carrier of persons for
reward.” (§§ 2100, 2101.)
This conclusion is consistent with the broader historical background and
context. The Commission’s notes to sections 2100, 2101, and 2168 liberally cited
to two 19th Century treatises: an 1849 treatise by Joseph Angell entitled, A
Treatise on the Law of Carriers of Goods and Passengers by Land and by Water
(hereafter Angell on Carriers), and an 1869 treatise by Isaac Redfield, entitled The
Law of Carriers of Goods and Passengers (hereafter Redfield on Carriers). (Code
commrs. notes, foll. Ann. Civ. Code, §§ 2100, 2101, 2168, supra, at pp. 7, 25-27.)
The preface to Angell on Carriers noted the increased importance of this subject to
“the mercantile and travelling public” given the use of steam in “the transportation
of commodities and of travellers” and the advent of the railroad, an “expeditious,
commodious, and now common means of commercial transportation, and
mercable and social intercourse by land.” (Angell on Carriers, supra, at pp. iii-iv.)
The treatise later explained that “the first and most general obligation on the part
of common carriers of passengers . . . is to carry persons who apply for
transportation.” (Id. at p. 490.) The introduction to Redfield on Carriers similarly
explained that the treatise was prompted by the “vast amount of the business of the
country transacted by means of railways, express companies, and telegraphs.”
(Redfield on Carriers, supra, at p. 2.) The treatise later explained that the term
5
“common carrier . . . embraces the proprietors of stage-wagons and coaches,
omnibuses and railways . . . and all who engage regularly in the transportation of
goods or money, either from town to town, or from place to place in the same
town.” (Id. at p. 16.) Another treatise from the era similarly explained that a
“carrier” is an “agent of commerce” involved in “[t]he internal and external
carrying trade of a highly commercial people.” (Edwards, A Treatise on the Law
of Bailments (1855) p. 424.) Another 19th century treatise dealing only with
carriers of passengers defined a “Public Carrier[] of Passengers” as “[o]ne who for
hire, undertakes the transportation of persons from place to place, as a business
. . . .” (Ray, Negligence of Imposed Duties, Carriers of Passengers (1893) p. 1.)
Similar themes appear in legal dictionaries published at the time the
Legislature passed the 1872 statutes in question. An 1871 dictionary defined a
“carrier” as “[o]ne who carries or agrees to carry the goods of another, from one
place to another, for hire, or without hire.” (Burrill, A Law Dict. & Glossary
(1871) p. 252.) It explained that “[c]ommon carriers are of two kinds; by land, as
owners of stages, stage-wagons, rail-road cars, teamsters, cartmen, draymen and
porters; and by water, as owners of ships, steamboats, barges, ferrymen,
lightermen, and canal boatmen.” (Id. at p. 323.) Similarly, an 1872 dictionary
defined a “carrier” as “[o]ne who undertakes to transport goods from one place to
another.” (1 Bouvier, Law Dict. (1872) p. 242.) It also explained that the term
“common carrier[]” includes “stagecoach proprietors, railway-companies,
truckmen, wagoners and teamsters, carmen and porters, and express companies,
whether such persons undertake to carry goods from one portion of the same town
to another, or through the whole extent of the country, or even from one state or
kingdom to another.” (Id. at p. 299.) It included the following definition of the
term “passenger”: “One who has taken a place in a public conveyance for the
purpose of being transported from one place to another. One who is so conveyed
from one place to another.” (Id. at p. 297.) Like the Commission’s notes, these
historical sources support the conclusion that the Legislature understood the
6
phrase “carrier of persons for reward” in sections 2100 and 2101 to refer to those
who provide transportation services to passengers traveling from one point to
another. As already explained, Disney, in operating the Indiana Jones ride, does
not fall into this category.
The next relevant rule of statutory construction directs that in construing a
statute, we do not “consider the statutory language ‘in isolation.’ [Citation.]
Rather, we look to ‘the entire substance of the statute . . . in order to determine the
scope and purpose of the provision . . . . [Citation.]’ [Citation.] That is, we
construe the words in question ‘ “in context, keeping in mind the nature and
obvious purpose of the statute . . . .” [Citation.]’ [Citation.] We must harmonize
‘the various parts of a statutory enactment . . . by considering the particular clause
or section in the context of the statutory framework as a whole.’ [Citations.]”
(Murphy, supra, 25 Cal.4th at p. 142.)
The relevant statutory context further indicates that the Legislature did not
intend to include an operator of an amusement park ride like the one at issue here
as a “carrier of persons for reward” within the meaning of sections 2100 and 2101.
These sections were enacted as part of a title of the Civil Code entitled Carriage.
The first section of the title generally defined a “contract of carriage” as “a
contract for the conveyance of property, persons, or messages, from one place to
another.” (§ 2085, italics added.) The title imposed a number of requirements on
carriers. Among other things, it required “[a] carrier of persons for reward [to]
give to passengers all such accommodations as are usual and reasonable . . . and
[to] give them a reasonable degree of attention.” (§ 2103.) It also required “[a]
carrier of persons for reward [to] travel at a reasonable rate of speed, and without
any unreasonable delay, or deviation from his proper route.” (§ 2104.) It required
“[a] common carrier . . . always [to] give a preference in time . . . to the United
States and to this State.” (§ 2171.) It required “[a] common carrier of persons [to]
provide a sufficient number of vehicles to accommodate all the passengers who
can be reasonably expected to require carriage at any one time” (§ 2184) and to
7
“provide every passenger with a seat.” (§ 2185.) These provisions, which still
exist today in substantially the same form, are all readily applicable to those who
provide transportation services to passengers traveling from place to place. By
contrast, as the majority concedes (maj. opn., ante, at p. 20), these provisions are
not logically applicable to either amusement park rides in general or the Indiana
Jones ride in particular. Thus, like the Commission’s notes and the historical
sources, the relevant statutory context indicates that the Legislature did not intend
the term “carrier of persons for reward” in sections 2100 and 2101 to include the
operator of an amusement park thrill ride like the one at issue here.
Another relevant rule of statutory construction directs us to give statutory
language “a commonsense meaning. [Citations.]” (People v. Nguyen (2000) 22
Cal.4th 872, 878.) In general, “[s]tatutes are to be given a reasonable and
commonsense interpretation consistent with the apparent legislative purpose and
intent ‘and which, when applied, will result in wise policy rather than mischief or
absurdity.’ [Citation.]” (Dyna-Med, Inc. v. Fair Employment & Housing Com.
(1987) 43 Cal.3d 1379, 1392.) We follow this rule because “[i]n attempting to
ascertain legislative intent when construing a statute we presume that the
Legislature did not intent absurd results. [Citation.]” (In re Head (1986) 42
Cal.3d 223, 232.)
The majority’s conclusion that the Indiana Jones ride is a “carrier of
persons for reward” within the meaning of sections 2100 and 2101 violates this
rule. To begin with, the majority’s conclusion defies common sense. As three
members of the Missouri Supreme Court observed almost 90 years ago: “We, as a
court, are not more ignorant than the general public. What is generally known, we
must know. We know that there are a great number of pleasure devices, the
objects and purposes of which are to furnish sensational experiences for pleasure
seekers. The scenic railways with all their variations; the circular swings with all
their variations; toboggan slides, etc. They are not common carriers of passengers
in any sense of the word.” (Pointer v. Mountain Ry. Const. Co. (Mo. 1916) 189
8
S.W. 805, 813 (lead opn. on this point by Graves, J.).) The majority’s conclusion
also will result in mischief and absurdity; it opens the door to lawsuits attempting
to force amusement park operators to comply with all of the statutes that apply to
common carriers of persons for reward. For example, we can now expect to see
someone who had to wait in line for a ride on the Indiana Jones attraction suing
Disney for failing to “provide a sufficient number of vehicles to accommodate all
the passengers who can be reasonably expected to require carriage at any one
time.” (§ 2184) The majority suggests that this requirement does not apply to the
Indiana Jones ride (maj. opn., ante, at p. 20), but it offers no analysis or principled
basis for why this is so. Moreover, although the majority purports to address only
“roller coaster[s]” and “similar amusement park ride[s],” it offers no basis for not
applying its holding to “other, dissimilar, amusement rides.” (Maj. opn., ante, at
p. 15, fn. 5.) Thus, under the majority’s holding, we can expect to see the
statutory requirements applicable to common carriers of persons for reward
imposed on operators of merry-go-rounds and other such rides. Even the operator
of a mechanical bull would appear to be a carrier of persons for reward under the
majority’s holding, inasmuch as this device physically moves the rider up and
down, and side to side. That the majority’s construction produces such
mischievous and absurd results and fails to give the statutory language a
commonsense meaning are additional reasons for concluding that it does not
correctly reflect the Legislature’s intent. And because the majority’s construction
does not correctly reflect the 1872 Legislature’s intent, we should not adopt it.
Finally, the majority’s holding ignores another relevant rule of statutory
interpretation: “[i]n attempting to ascertain [the Legislature’s] intent,” we should
consider the “consequences that will flow from a particular interpretation.” (In re
Ryan’s Estate (1943) 21 Cal.2d 498, 513.) Under the majority’s holding, the
operator of an amusement park thrill ride like the one at issue here will be liable
for injury unless it “use[d] the utmost care and diligence.” (§ 2100.) We have
interpreted this standard to “require[] . . . all that human care, vigilance, and
9
foresight reasonably can do under the circumstances. [Citation.]” (Lopez v.
Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785.) Applying this
standard to conventional transportation devices is completely consistent with the
purpose and design of such devices: to provide smooth, secure and uneventful
transportation. Such devices are designed, as much as possible, to eliminate
danger. However, applying the same rule to amusement park thrill rides is
inconsistent with the fundamental purpose and nature of such rides, which is, in
the majority’s words, to “frighten[]” and “surprise[]” riders using means that
present “ ‘inherent dangers.’ ” (Maj. opn., ante, at p. 14.) In other words,
dangerous elements are intentionally incorporated into such rides, and patrons
choose such rides precisely for this reason. Of course, in order to accomplish their
purpose, thrill rides need not be configured in any particular way; each such ride
can be less long, less high, less fast, or less bumpy. Thus, it is likely that most
such rides will fail the utmost-care test, and despite the majority’s assurance that
“ ‘[c]ommon carriers are not . . . insurers of their passengers’ safety’ ” (maj. opn.,
ante, at p. 6), operators of amusement park thrill rides effectively will be under the
majority’s holding. As a result, the majority’s holding poses the very real threat of
eliminating such rides. At the very least, it surely will “alter the nature of the
activity.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990,
1003.) Absent clearer language in a statute addressing the subject, I would leave
this policy decision to the Legislature.
On the other hand, my conclusion does not create any kind of special
liability exemption for the amusement park industry. To the contrary, as applied
to amusement park thrill rides, our ordinary negligence law imposes exacting
requirements on operators of such rides. Under that law, what constitutes
“ordinary care” varies “in proportion to the danger to be avoided and the
consequences that might reasonably be anticipated [citations].” (Warner v. Santa
Catalina Island Co. (1955) 44 Cal.2d 310, 317.) In other words “ ‘in the exercise
of ordinary care, . . . the amount of caution required by the law increases, as does
10
the danger that should reasonably be apprehended.’ ” (Jensen v. Minard (1955) 44
Cal.2d 325, 328.) Thus, although the majority is rightly concerned about the
“ ‘inherent dangers’ ” of thrill rides (maj. opn., ante, at p. 14), ordinary negligence
law already accommodates that concern. Under that law, it would be “ ‘entirely
proper and feasible for the trial court, in elucidating the standard of ordinary care
to the jury, by proper comment upon the evidence to . . . suggest[] that the
operating hazard of [the Indiana Jones ride] was considerable, and that ordinary
care required more, and more exact, supervision in its use than obtains in the case
where there is little or no element of danger involved in any given device.’
[Citation.]” (Sergermeister v. Recreation Corp. of America (Fla. 1975) 314 So.2d
626, 632 [holding that amusement park ride operator is not a common carrier].)
Thus, it is unnecessary to contort our common carrier law to address the majority’s
concern.
III. California Case Law Does Not Compel the Majority’s Conclusion
As initially noted, although our duty in this case is to determine the
Legislature’s intent regarding sections 2100 and 2101, the majority fails even to
identify this as a relevant question. Instead, the majority bases its conclusion
solely on existing case law. However, California case law does not compel the
conclusion the majority reaches here.
At the outset, the majority’s analysis ignores a fundamental principle set
forth in this court’s prior decisions: because “ ‘the law applicable to common
carriers is peculiarly rigorous, . . . it ought not to be extended to persons who have
not expressly assumed that character, or by their conduct and from the nature of
their business justified the belief on the part of the public that they intended to
assume it.’ [Citation.]” (People v. Duntley (1932) 217 Cal. 150, 164; see also
Samuelson v. PUC (1951) 36 Cal.2d 722, 730.) Clearly, with respect to its
operation of the Indiana Jones ride, Disney did not expressly assume the character
of a common carrier. Nor did Disney’s conduct or the nature of its business justify
11
a belief that Disney intended to assume such a character. Thus, the majority’s
extension of our common carrier statutes to Disney in this case is contrary to our
case law.
The next flaw in the majority’s analysis is that it proceeds as if we have
never considered the liability of operators and proprietors of places of amusement,
when in fact we did so in McCordic v. Crawford (1943) 23 Cal.2d 1 (McCordic).
There, after being injured on an amusement ride called the “Loopa,” the plaintiff
obtained a judgment against the proprietor of the amusement park and the
concessionaire who was operating the ride. (Id. at pp. 3-4.) In affirming the
judgment, we explained: “The law is well settled . . . ‘that a proprietor, or one
who operates a place of amusement, owes a legal duty to exercise due care to
protect from injury individuals who come upon his premises by his express or
implied invitation. He must see that such premises are in a reasonably safe
condition. It constitutes a breach of this duty for him to fail to exercise reasonably
careful supervision of the appliances or methods of operating concessions under
his management.’ ” (Id. at pp. 6-7.) 2 Thus, in determining the proprietor’s
liability, we applied the ordinary negligence standard of care, not the heightened
standard of care that applies to a “carrier of persons for reward” under section
2100.
As we explained in McCordic, our decision there was simply an application
of “well settled” law regarding the liability of operators and proprietors of places
of amusement. (McCordic, supra, 23 Cal.2d at p. 6.) Among the decisions we
cited in support of this well-settled law was the Pennsylvania Supreme Court’s
decision in Engstrom v. Huntley (Pa. 1942) 26 A.2d 461 (Engstrom). (McCordic,
supra, 23 Cal.2d at p. 7.) There, with regard to riders of an amusement park ride
2
Given this statement, the majority is incorrect in asserting that McCordic
“did not address the duty of care of the operator of an amusement park ride.”
(Maj. opn., ante, at p. 15.)
12
called the “Tilt-a-Whirl,” the court held that the owner and operator of the
amusement park “was required to exercise the measure of care owing to invitees,”
i.e., “ ‘reasonable care in the construction, maintenance and management of’ ” the
ride. (Engstrom, supra, 26 A.2d at p. 463.) Notably, in Davidson v. Long Beach
Pleasure Pier Co. (1950) 99 Cal.App.2d 384, a California appellate court later
applied the same standard of care in a case also involving the Tilt-a-Whirl. Citing
Engstrom, the Davidson court stated: “The proprietor of a public place of
amusement is required to maintain in a reasonably safe condition, every
contrivance used in its premises, and to properly inspect and supervise the same.
[Citations.] . . . [¶] In addition to the duties of maintenance, inspection, and
supervision, with which the operator was likewise charged, it was his further duty
to use reasonable care to see that the girls were not injured while the tilt-a-whirl
was running. [Citation.]” (Davidson, supra, 99 Cal.App.2d at p. 387.) In support
of its conclusion, the Davidson court also cited Potts v. Crafts (1935) 5
Cal.App.2d 83, 84, where another California court stated that “[t]he proprietor of a
public place of amusement owes to his patrons the duty of using ordinary or
reasonable care to see that they are not injured. [Citations.]” (See Davidson,
supra, at p. 387.) Thus, the majority is simply incorrect in asserting that
“California law”—and presumably, the majority means California case law—“has
consistently” included “amusement park rides like roller coasters” within the
“definition” of the term “carrier of persons for reward” in sections 2100 and 2101.
(Maj. opn., ante, at p. 10.) The majority is also incorrect in asserting that “[t]here
is an unbroken line of authority in California classifying recreational rides as
common carriers.” (Maj. opn., ante, at p. 9.)
Disregarding this authority, the majority relies on two California decisions
involving amusement park rides (maj. opn., ante, at pp. 9-10), but neither of them
is persuasive authority for the majority’s holding that Disney, in operating the
Indiana Jones ride, is a “carrier of persons for reward” within the meaning of
sections 2100 and 2101. In Barr v. Venice Giant Dipper Co., Ltd. (1934) 138
13
Cal.App. 563, where the plaintiff was injured on a roller coaster, the question as
posed by the court was not whether the operator actually was a “carrier of persons
for reward” under section 2100, but whether it was “subject to the rule of liability
applicable to common carriers.” In concluding that the trial court had not erred in
giving instructions that “charg[ed] the [defendant] with the utmost care and
diligence required of a common carrier of persons under section 2100,” the court
made no statutory analysis and did not even cite the statutory language. (Barr,
supra, 138 Cal.App. at p. 564.) Nor did it consider decisions that had applied an
ordinary negligence standard to operators of places of amusement. Instead, it
relied on non-California decisions in which courts, although declining to find that
amusement ride operators technically are common carriers, held such operators to
a heightened standard of care as a matter of policy and ordinary negligence law.
(Ibid.) Thus, properly understood, Barr holds only that the roller coaster operator
in that case was subject to a heightened standard of care based on these
considerations, and not as a “carrier of persons for reward” under section 2100.
Of course, the question of whether we should hold Disney to a heightened standard
of care based on such considerations is a separate question from the question at
issue here: whether the Legislature has imposed that standard of care on Disney in
its operation of the Indiana Jones ride as a “carrier of persons for reward” within
the meaning of section 2100. To the extent the majority views Barr as persuasive
authority regarding the latter question, it errs.3
3
Barr cited the following decisions: Cooper v. Winnwood Amusement Co.,
(Mo. Ct. App. 1932) 55 S.W. 2d 737, 742 [“ ‘the higher courts of this country . . .
have been slow in holding that’ ” a roller coaster operator “ ‘is technically a
common carrier,’ ” although “ ‘they do hold that the rule in reference to the degree
of care required of a common carrier applies to the operation of such devices’ ”];
Brown v. Winnwood Amusement Co. (Mo. Ct. App. 1931) 34 S.W. 2d 149, 152
[same]; Bibeau v. Fred W. Pearce Corp. (Minn. 1928) 217 N.W. 374, 376 [“[t]he
rule which subjects the roller-coaster and the common carrier to the same degree
of care rests upon principle and is supported by a sound public policy”]; Sand
(footnote continued on next page)
14
The other decision the majority cites—Kohl v. Disneyland, Inc. (1962) 201
Cal.App.2d 780 (Kohl)—also offers little support for the majority’s holding.
There, the plaintiffs, who were injured while riding a horse-drawn stagecoach at
Disneyland, were appealing from a judgment in favor of Disneyland. (Id. at p.
782.) The only question raised on appeal was whether there was “substantial
evidence” to support the jury’s verdict. (Ibid.) Although in answering this
question, the court asserted that a “passenger-carrier relationship” existed between
(footnote continued from previous page)
Springs Park v. Schrader (Okla. 1921) 198 P. 983, 987 [imposing heightened
standard of care based on ordinary negligence law, while declining to “draw an
analogy between the rule that applies to the common carrier of passengers for hire
and those who carry passengers on scenic railways for hire” and “doubt[ing] the
practicability . . . of drawing such an analogy”]; Best Park & Amusement Co. v.
Rollins (Ala. 1915) 68 So. 417, 417 [in scenic railway case, applying heightened
standard of care based on ordinary negligence law, while noting “grave doubt”
about “whether the operation of a ‘scenic railway’ in an amusement park . . . can
be properly designated as a common carrier of passengers”]; Tennessee State Fair
Assn. v. Hartman (Tenn. 1915) 183 S. W. 735, 736 [“[w]e are not to be understood
as saying that the [ride] operator was a technical common carrier,” and “[w]e are
treating only of the measure of care to be observed by him”]; O’Callaghan v.
Dellwood Park Co. (Ill. 1909) 89 N.E. 1005, 1007 [“by fair analogy” and “on
reason and sound public policy,” holding scenic railway operator “to the same
degree of responsibility . . . as a common carrier”].)
The majority cites these same decisions in support of its conclusion. (Maj.
opn., ante, at pp. 15-17.) However, because, as I have explained, the courts in
these cases did not hold that amusement ride operators actually are common
carriers, but applied a heightened standard of care to such operators as a matter of
policy and ordinary negligence law, none of these decisions supports the
majority’s holding that Disney is a “carrier of persons for reward” within the
meaning of sections 2100 and 2101. The same is true of the remaining out-of-
state cases the majority cites to support its holding. (Maj. opn., ante, at p. 16,
citing Lyons v. Wagers (Tenn. Ct. App. 1966) 404 S.W.2d 270, 274 [“operator of
an amusement ride owes his patrons the same degree of care owed by a common
carrier to its passengers”], and Lewis v. Buckskin Joe’s, Inc. (Colo. 1964) 396 P.2d
(footnote continued on next page)
15
the plaintiffs and Disneyland (id. at p. 787), it offered no analysis to support its
assertion; it failed to examine either the relevant statutory language or the 1872
Legislature’s intent in summarily asserting that such a relationship existed. Nor
did it consider our decision in McCordic, where we applied “well settled”
California law regarding the liability of operators and proprietors of places of
amusement. (McCordic, supra, 23 Cal.2d at p. 6.) These analytical omissions
may have resulted from the case’s procedural posture and the parties’ contentions;
Disneyland did not raise the issue on appeal, probably because it won in the trial
court and was defending the verdict on appeal based only on the adequacy of the
evidence. Whatever the reason, “it is axiomatic that cases are not authority for
propositions not considered. [Citations.]” (People v. Alvarez (2002) 27 Cal.4th
1161, 1176.) Finally, Kohl did not involve a thrill ride like the one at issue here,
but involved a traditional form of transportation: a horse-drawn stagecoach.
(Kohl, supra, at p. 782.) As noted above, this mode of transportation was
specifically mentioned in the Commission’s notes. (Code commrs. notes, foll.
Ann. Civ. Code, § 2168, supra, at pp. 27-28.) As also noted above, the Indiana
Jones ride bears no resemblance to a horse-drawn stagecoach. For all of these
reasons, Kohl is of little, if any, help in this case.4
The majority also relies on a number of other California cases that did not
involve amusement parks or amusement park thrill rides, but these decisions are
unpersuasive whether considered individually or as a group. Collectively, the
(footnote continued from previous page)
933, 939 [in determining standard of care applicable to operators of amusement
park ride, “[i]t is not important whether defendants were serving as a carrier”].)
4
In its discussion of California law, the majority cites one other case
involving an amusement park ride: Neubauer v. Disneyland, Inc. (C.D.Cal. 1995)
875 F.Supp. 672. (Maj. opn., ante, at p. 10.) However, Neubauer is a decision of
(footnote continued on next page)
16
cited cases involved conventional and obvious modes of transportation: elevators,
escalators, airplanes, mules, and ski lifts. (Smith v. O’Donnell (1932) 215 Cal.
714 (Smith); Treadwell v. Whittier (1889) 80 Cal. 574 (Treadwell); Squaw Valley
Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499 (Squaw Valley);
Vandagriff v. J.C. Penney Co. (1964) 228 Cal.App.2d 579 (Vandagriff); McIntyre
v. Smoke Tree Ranch Stables (1962) 205 Cal.App.2d 489 (McIntyre).) The
purpose of these instrumentalities is, first and foremost, to provide secure and
uneventful transportation, even if within the context of entertainment or recreation.
In this regard, they bear no resemblance to the Indiana Jones ride, the purpose of
which is not to provide transportation at all, but to frighten and thrill riders by
moving them at excessive speeds and, as alleged in the complaint, “jarring” them
with “jumps, drops, and unpredictable movements.” Moreover, none of the cited
decisions considered the “well settled” California law we applied in McCordic
regarding the liability of operators and proprietors of places of amusement.
(McCordic, supra, 23 Cal.2d at p. 6.)
A closer look at these decisions reveals additional reasons why each is
inapposite. In Treadwell, a negligence action, the plaintiff was injured while
riding in an elevator, which “ ‘was used and intended to be used . . . for the
purpose of transporting and carrying [defendants’] customers . . . to and from the
different floors of’ ” defendants’ store. (Treadwell, supra, 80 Cal. at pp. 576-577.)
In determining the applicable standard of care, we neither cited nor referred to any
of the California statutes governing carriers. Nor did we ever use the statutory
term at issue here: “carrier of persons for reward.” (§§ 2100, 2101.) Thus, it
appears that Treadwell was not a statutory decision at all, but was a policy or
(footnote continued from previous page)
a federal district court construing California law. It offered little analysis for its
conclusion.
17
common law decision that the “degree of responsibility” that attaches to stage
coach and railroad operators “must attach to one controlling and running an
elevator.” (Treadwell, supra, at p. 591.) As a policy matter, the opinion declared
that a heightened standard “attaches to all persons engaged in employments where
human beings submit their bodies to their control by which their lives or limbs are
put at hazard, or where such employment is attended with danger to life or limb.”
(Ibid.) Nor did we hold that elevator operators actually are carriers; rather, we
held that for policy reasons, such operators must be treated “like common carriers
of passengers.” (Id. at p. 600, italics added.) Our subsequent decisions confirm
this view of Treadwell. Less than two years after issuing Treadwell, we explained
that it “likened” the duties of a proprietor of a passenger elevator to “the duties
imposed upon the carrier of passengers.” (Sappenfield v. Main St. & A.P.R. Co.
(1891) 91 Cal. 48, 55, italics added.) A few years later, citing only Treadwell, we
stated: “In determining the liability of the owner of an elevator for injury to a
passenger this court has long been committed to the doctrine that the responsibility
is analogous to that of a common carrier.” (Wilmarth v. Pacific Mut. Life Ins. Co.
(1914) 168 Cal. 536, 542, italics added.) Because Treadwell involved an obvious
form of transportation, did not construe the applicable statutes, and did not hold
that the elevator operator actually was a carrier, it does not support the majority’s
holding in this case.
For a number of reasons, our subsequent decision in Smith is similarly
unhelpful. First, the plaintiff in Smith was injured while riding in an airplane,
another obvious and conventional form of transportation. (Smith, supra, 215 Cal.
at p. 715.) Indeed, Smith’s discussion emphasized the need to protect those using
this “mode of transportation,” i.e., members of the public who have accepted the
“invitation” of the airline “industry . . . to travel by air.” (Id. at p. 720.) As noted
above, an airplane, which is designed as a means of transportation, bears no
resemblance to the Indiana Jones ride, which is simply an amusement device.
Second, although Smith briefly cited both sections 2100 and 2101, it contains no
18
analysis of the statutes and does not examine the 1872 Legislature’s intent.
Instead, like Barr, it extensively relied on out-of-state decisions in which courts,
although declining to find that amusement ride operators technically are common
carriers, held such operators to the same standard of care as a matter of policy and
ordinary negligence law. (Smith, supra, 215 Cal. at p. 719.) Smith endorsed these
decisions not based on the statutory language or the Legislature’s intent, but on
“consideration[s] of public policy.” (Ibid.) As noted above, the question of
whether we, as a policy matter, should hold Disney to a higher standard of care is
different from the question now before us: whether the Legislature has required
us to apply that higher standard to Disney as a “common carrier of persons for
reward” within the meaning of section 2100.
The third reason why Smith is of little help here is that its relevant
discussion is dictum in several respects. To begin with, in asserting that he was
not a “ ‘common carrier,’ ” the airplane operator in Smith argued only that “ ‘there
must be “the carriage of the thing or person from one place to another on terra
firma” in order to constitute a common carrier and . . . that “so new a craft, so new
an industry” ought not to “be so classified and charged with such a liability.” ’ ”
(Smith, supra, 215 Cal. at p. 717.) Thus, Smith’s discussion of the relevance of a
passenger’s motive—which the majority’s finds determinative here (maj. opn.,
ante, at pp. 13-14)—was simply not at issue in the case. More broadly, Smith’s
entire discussion of the common carrier issue was dicta. In Smith, we reversed the
judgment against the airplane operator because, in light of the trial court’s
erroneous instructions regarding the liability of a codefendant, “ ‘there was no
proper guide by which the jury could determine whether the collision was caused
solely by the [codefendant’s] negligence.’ ” (Smith, supra, at p. 723.) Thus, to
decide the case, it was unnecessary in Smith to discuss the operator’s argument
that he was not a common carrier under California law. (Id. at p. 717.) We did so
anyway, “[d]ue to the novelty of the questions involved” in applying the law to
“airplanes.” (Id. at p. 715.) Of course, we are not bound by such dicta, especially
19
given our subsequent holding in McCordic that the ordinary negligence standard
of care applies to proprietors of rides at amusement parks.5
The remaining California decisions the majority cites—all from our Courts
of Appeal—also offer little support for the majority’s holding. In McIntyre, the
plaintiff was injured while riding a mule in a mule train, and the only argument the
court addressed was the mule train operator’s argument that because he simply
5
In any event, my analysis does not depend on the factor discussed in
Smith’s dicta: “ ‘the motive which causes a person to take passage.’ ” (Smith,
supra, 215 Cal. at p. 719.) Rather, it depends on the nature and purpose of the
device in question. Thus, if the device at issue is fundamentally a means of
transportation, then the operator is a “carrier of persons for reward” (§§ 2100,
2101) whether the rider is on business, is traveling on vacation, or is simply along
for the ride. But where the device in question is not fundamentally a means of
transportation, the operator does not become a “carrier of persons for reward”
within the meaning of sections 2100 and 2101 simply because movement is
involved. With regard to such devices, the rider simply is not “ ‘tak[ing]
passage.’ ” (Smith, supra, 215 Cal. at p. 719.)
As the preceding discussion demonstrates, the majority errs in asserting that
under my reasoning, a roller coaster operator is a carrier of persons if the ride
starts on one level and ends on another, but not if the ride begins and ends at the
same place. (Maj. opn., ante, at p. 18.) My analysis produces the same conclusion
in both cases, based on the fact that a roller coaster is not designed to provide
transportation and serves no transportation function. The majority also errs in
equating a helicopter and a roller coaster. (Maj. opn., ante, at p. 19.) The former
is designed to provide smooth, secure and uneventful transportation; it is
fundamentally a transportation device, and even during a round-trip “sightseeing
ride” (ibid.), its primary function is to take passengers from place to place. By
contrast, a roller coaster is not designed to provide transportation at all; its
function is solely to thrill riders, and the physical movement along the track is
purely incidental to the ride’s purpose. Thus, a roller coaster no more
“transport[s]” its riders (ibid.) than does a mechanical bull. (See People v. Cortez
(1985) 166 Cal.App.3d 994, 998-999 [as “commonly understood,” the term “ ‘[t]o
transport means to carry or convey from one place to another’ [citation]”]; see also
Golden Gate Scenic Steamship Lines, Inc. v. Public Utilities Com. (1962) 57
Cal.2d 373, 380 [“ ‘transportation’ . . . has been judicially defined as implying ‘the
taking up of persons or property at some point and putting them down at
another’ [citations]”].)
20
rented the plaintiff a mule and had no control over the mule when the accident
occurred, he was “not a carrier of any kind.” (McIntyre, supra, 205 Cal.App.2d at
p. 491.) The operator did not rely on, and the court did not discuss the
significance of, the fact that the plaintiff was being carried merely for recreational
purposes. In rejecting the operator’s argument, the court stressed that the operator
“used mules as a means of transportation” to “conduct[] guided tours . . . over a
scenic route.” (Id. at p. 490.) Moreover, the court based its decision on section
2168, finding that there was “an agreement of carriage” within the meaning of that
provision because the operator “operated a mule train for the purposes of taking
passengers over a designated route between fixed termini.” (Id. at p. 492, italics
added.) In Squaw Valley, which involved a chair lift at a ski resort, the court also
applied section 2168, finding that the lift operator was a “common carrier” within
the meaning of that provision because the operator “carr[ied] skiers at a fixed rate
from the bottom to the top of the [ski] run.” (Squaw Valley, supra, 2 Cal.App.4th
at p. 1508.) In reaching its conclusion, the court explained that “a common carrier
within the meaning of . . . section 2168 is any entity which holds itself out to the
public generally and indifferently to transport goods or persons from place to place
for profit. [Citations.]” (Ibid.) Moreover, unlike the majority, which suggests
that the lift operator in Squaw Valley was offering “recreational rides” (maj. opn.,
ante, at p. 9), the court in Squaw Valley properly characterized the lift operator as
“a transportation company.” (Squaw Valley, supra, at p. 1513.) Thus, both
McIntyre and Squaw Valley involved obvious forms of transportation, and both
decisions stressed the transportation purpose and function in finding that under
section 2168, the operators were common carriers. As I have already explained,
the purpose and function of the Indiana Jones ride is not to provide transportation
at all, but is to provide thrills.
Finally, Vandagriff, to the extent it is relevant, actually is more supportive
of my analysis than the majority’s. There, the plaintiff sued after being injured on
an escalator. Although the appellate court asserted, without analysis, that “[a]n
21
escalator in a department store is a common carrier,” the principal case it cited in
making this assertion—Hendershott v. Macy’s (1958) 158 Cal.App.2d 324—did
not hold that a escalator operator is a common carrier. (Vandagriff, supra, 228
Cal.App.2d at p. 582.) Rather, Hendershott held that such an operator “is held to
the duty of utmost care and diligence analogous to that required of a common
carrier. [Citation.]” (Id. at p. 328, italics added.) 6 More importantly, in applying
a heightened standard of care, the Vandagriff court rejected the escalator
operator’s reliance on Kataoka v. May Department Stores Co. (1943) 60
Cal.App.2d 177, explaining that the court in that case had declined to apply that
standard of care because the plaintiff there “was not using the escalator as a means
of transportation, but was playing” on it. (Vandagriff, supra, 228 Cal.App.2d at p.
582.) Indeed, in Kataoka, the court expressly refused to apply the heightened
standard of care to an escalator operator, reasoning: “Plaintiff here was not using
the escalator as a means of transportation when he was injured . . . . [His] activities
. . . bore no relation to the matter of transportation. . . . He was, at the time in
question, simply a business invitee of defendant corporation, and to him it owed
the duty which exists in all such cases, that is, to use ordinary care to keep the
premises reasonably safe for those so invited to go upon them. [Citations.]”
(Kataoka, supra, 60 Cal.App.2d at p. 182.) Thus, both Vandagriff’s discussion
and the decision in Kataoka are consistent with our decision in McCordic, which
held that the standard of ordinary care governs the liability of proprietors and
operators of amusement parks to invitees who are injured on amusement park
rides. They also support my conclusion that in operating the Indiana Jones ride,
6
Vandagriff also cited Simmons v. F.W. Woolworth Co. (1958) 163
Cal.App.2d 709. However, in that case, the court did not analyze the issue, but
simply accepted the parties “stipulat[ion] . . . that the defendant’s operation of the
escalator placed it in the category of a common carrier.” (Id. at p. 710.)
22
which is not and was not intended to be a means of transportation, Disney is not a
“carrier of persons for reward” within the meaning of sections 2100 and 2101.
IV. Conclusion
For the reasons stated above, I would hold that Disney, in operating the
Indiana Jones ride, is not a “carrier of persons for reward” within the meaning of
sections 2100 and 2101, and that plaintiffs therefore cannot state causes of action
under these statutes. In my view, the majority’s contrary conclusion is
inconsistent with the Legislature’s intent, ignores our well-settled law regarding
the liability of operators of amusement park rides, improperly extends to such
operators the law that applies to operators of true transportation devices, and
misconstrues decisions that have imposed a heightened standard of care on
operators of thrill rides not because they are common carriers, but as a matter of
policy and ordinary negligence law.
In reaching this conclusion, I am not unmindful of the tragedy that lies at
the heart of this case: the death of a young woman just embarking upon married
life. Nor am I advocating for any kind of special liability exemption for the
amusement park industry. On the contrary, I would fully apply our ordinary
negligence law in assessing Disney’s responsibility, if any, for the death of Ms.
Moreno, and thus would require a determination of whether Disney took
precautions commensurate with the risks posed by the Indiana Jones ride. I would
not, however, contort our common carrier law—which is a bad fit for amusement
23
park thrill rides—simply to subject Disney to the heightened standard of care
applicable to such carriers. I therefore dissent.
CHIN, J.
WE CONCUR:
BAXTER, J.
WISEMAN, J.*
____________________
*
Associate Justice, Court of Appeal, Fifth Appellate District, assigned by the
Chief Justice pursuant to article VI, section 6, of the California Constitution.
24
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Gomez v. Superior Court
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 110 Cal.App.4th 667
Rehearing Granted
__________________________________________________________________________________
Opinion No. S118489
Date Filed: June 16, 2005
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: James R. Dunn
__________________________________________________________________________________
Attorneys for Appellant:
Barry B. Novack for Petitioner.
__________________________________________________________________________________
Attorneys for Respondent:
No appearance for Respondent.
Snell & Wilmer, Richard A. Derevan and Janet L. Hickson for Real Parties in Interest.
Gibson, Dunn & Crutcher, Scott A. Edelman and Christopher Chorba for California Attractions and Parks
Association and International Association of Amusement Parks & Attractions as Amici Curiae on behalf of
Real Parties in Interest.
Miles & Stockbridge, R. Wayne Pierce; Gordon & Rees and Stephen T. Waimey for Outdoor Amusement
Business Association, Inc., World Waterpark Association, Inc., American Karting & Park Association, Inc.,
American Specialty Companies, Inc, Six Flags, Inc., International Amusement & Leisure Entertainment
Industries, Inc., Western Fairs Association, California Fairs Alliance, California Fair Services Authority
and Paradise Island Amusement Park as Amici Curiae on behalf of Real Parties in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Barry B. Novack
8383 Wilshire Blvd., Suite 830
Beverly Hills, CA 90211
(323) 852-1030
Richard A. Derevan
Snell & Wilmer
1920 Main Street, Suite 1200
Irvine, CA 92614-7230
(949) 253-2700
Opinion Information
| Date: | Docket Number: |
| Thu, 06/16/2005 | S118489 |
Parties
| 1 | Gomez, Johana (Petitioner) Represented by Barry Novack Attorney at Law 8383 Wilshire Blvd #830 Beverly Hills, CA |
| 2 | Superior Court Of Los Angeles County (Respondent) Represented by Frederick R. Bennett Los Angeles Superior Court 111 N Hill St #620 Los Angeles, CA |
| 3 | Walt Disney Company (Real Party in Interest) Represented by Richard A. Derevan Snell & Wilmer LLP 1920 Main St #1200 Irvine, CA |
| 4 | Walt Disney Company (Real Party in Interest) Represented by Janet L Hickson Snell & Wilmer LLP 1920 Main St #1200 Irvine, CA |
| 5 | Walt Disney Company (Real Party in Interest) Represented by Gary A. Wolensky Snell & Wilmer LLP 1920 Main St #1200 Irvine, CA |
| 6 | Disney Enterprise Corporated (Real Party in Interest) |
| 7 | Walt Disney Parks & Resorts (Real Party in Interest) Represented by Gary A. Wolensky Snell & Wilmer LLP 1920 Main St #1200 Irvine, CA |
| 8 | Walt Disney World Company (Real Party in Interest) Represented by Gary A. Wolensky Snell & Wilmer LLP 1920 Main St #1200 Irvine, CA |
| 9 | California Attractions & Parks Association (Amicus curiae) Represented by Scott A. Edelman Gibson Dunn & Crutcher LLP 333 So. Grand Ave. Los Angeles, CA |
| 10 | International Association Of Amusement Parks & Attractions (Amicus curiae) |
| 11 | Outdoor Amusement Business Association (Amicus curiae) Represented by Stephen T. Waimey Gordon & Rees LLP 4695 Mac Arthur Court, Suite 1200 Newport Beach, CA |
| Disposition | |
| Jun 16 2005 | Opinion: Affirmed |
| Dockets | |
| Aug 26 2003 | Petition for review filed by counsel for Real Party In Interest (The Walt Disney Company, et al,) (40k) |
| Aug 26 2003 | Record requested |
| Aug 26 2003 | Received Court of Appeal record 1 doghouse |
| Oct 16 2003 | Time extended to grant or deny review to 11-24-03 |
| Nov 12 2003 | Petition for Review Granted (civil case) George, C.J., was recused and did not participate. Brown, J., was recused and did not participate. Votes: Baxter, ACJ., Kennard, Werdegar, Chin & Moreno, JJ. |
| Nov 21 2003 | Certification of interested entities or persons filed by petnrs |
| Dec 1 2003 | Certification of interested entities or persons filed by RPIs |
| Dec 5 2003 | Request for extension of time filed for RPIs to file the opening brief on the merits, to 1-12-04. |
| Dec 10 2003 | Extension of time granted to 1-12-04 for RPI to serve the opening brief on the merits. |
| Jan 13 2004 | Opening brief on the merits filed Real Parties The Walt Disney Company et al. (40k/FedEx) |
| Feb 5 2004 | Request for extension of time filed to file ansswer brief merits asking to March 12, 2004. |
| Feb 19 2004 | Extension of time granted to 3-12-04 for petnr to file the answer brief on the merits. |
| Mar 10 2004 | Answer brief on the merits filed petitioner Johana Gomez |
| Mar 18 2004 | Request for extension of time filed for RPIs to file the reply brief on the merits, to 4-29-04. |
| Mar 19 2004 | Extension of time granted to 4-29-04 for RPIs to file the reply brief on the merits. |
| Apr 30 2004 | Reply brief filed (case fully briefed) by RPIs (40k) |
| Jun 1 2004 | Received application to file Amicus Curiae Brief Attractions and Parks Assn and International Assn of Amusement Parks & Attractions |
| Jun 2 2004 | Received application to file Amicus Curiae Brief from Outdoor Amusement Business Association et al. in support of RPIs. with appendix. (40k) |
| Jun 16 2004 | Permission to file amicus curiae brief granted by Outdoor Amusement Business Association, et al., in support of RPIs. Answers may be filed w/in 20 days. |
| Jun 16 2004 | Amicus curiae brief filed by Outdoor Amusement Business Assn., et al., in support of RPIs. with appendix |
| Jun 16 2004 | Permission to file amicus curiae brief granted by California Attractions and Parks Association, et al., in support of RPIs. Answers may be filed w/in 20 days. |
| Jun 16 2004 | Amicus curiae brief filed by California Attractions and Parks Assn., et al., in support of RPIs. |
| Jul 6 2004 | Response to amicus curiae brief filed joint answer/response of Johana Gomez to a.c. briefs of California Attractions and Parks Assoc. & Int'l., Assoc., of Amusement Parks & Attractions and Consolidated Amici Curiae |
| Mar 8 2005 | Case ordered on calendar Thurs. 4/7/05 @9am - Los Angeles |
| Apr 7 2005 | Cause argued and submitted |
| Jun 16 2005 | Opinion filed: Judgment affirmed in full Majority opinion by Moreno, J. --------------------joined by Kennard, Werdegar, Vogel*, JJ. Dissent by Chin, J.---------joined by Baxter, Wiseman**, JJ. *Associate Justice, Court of Appeal, 2nd Appellate Dist., Div. 1, assigned. **Associate Justice, Court of Appeal, 5th Appellate Dist., assigned. |
| Jul 21 2005 | Remittitur issued (civil case) |
| Briefs | |
| Jan 13 2004 | Opening brief on the merits filed |
| Mar 10 2004 | Answer brief on the merits filed |
| Apr 30 2004 | Reply brief filed (case fully briefed) |
| Jun 16 2004 | Amicus curiae brief filed |
| Jun 16 2004 | Amicus curiae brief filed |
| Jul 6 2004 | Response to amicus curiae brief filed |
