Law Review: Buses and trains owe duty of ‘utmost care’ |

Law Review: Buses and trains owe duty of ‘utmost care’

Loyal readers of the Law Review know that the standard of care for accidents and injuries is negligence. The so-called “reasonable man” standard.

If you are negligent and injure someone, you may be responsible.

You loyal readers may not know however that common carriers like buses and trains have a higher duty of care: a duty to “use the utmost care and diligence for passengers’ safe carriage.” And with that articulate introduction, let’s do this, as Chris Cuomo says.


Alice Churchman bought a train ticket at a Bay Area Rapid Transit District (BART) station. She passed through turnstiles and went to the boarding platform.

Unfortunately, due to the opening and closing of doors and a partially inaudible and confusing broadcast over the public address system and other passengers trying to board a train, Alice lost her balance, fell and was injured.


Alice sued BART for violating its duty as a common carrier, a duty of “utmost care,” which as noted is a lower threshold for a plaintiff to prevail in a personal injury claim.

The trial court in Alameda County ruled for BART. Alice appealed.


Common carriers like trains, planes, buses, cabs, streetcars and presumably Uber and Lyft drivers, must use utmost care and diligence for their passengers. The public policy is the passenger is not in control of the situation, you are at the mercy of the carrier.


When I was in law school in San Francisco, the famous injury lawyer Melvin Belli, the “King of Torts,” was in trial representing a young woman who had fallen off a cable car in San Francisco and had sued for her injuries: she claimed the fall caused her to become a nymphomaniac. Whether that caused me to attend the trial or whether I had a genuine interest in personal injury law, I watched the trial and in particular the skilled Melvin Belli.

Melvin Belli, by the way, in response to a claim he was an “ambulance chaser,” infamously once said, “Why, I don’t chase ambulances, I get there before the ambulance.” But I digress.


The First Appellate District Court of Appeal ruled for BART and against Alice. The Court easily distinguished that Alice was not yet in route on the BART train and her injuries were caused by the ordinary risks of a busy train platform, where Alice would have to prove negligence. The utmost care standard did not apply. Alice may have another bite at the apple to prove negligence, but she failed to prove that BART owed her utmost care while she was on the boarding platform.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAS, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at or

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