Filed 10/19/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JING HUANG, B266350
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC511867)
v.
THE BICYCLE CASINO, INC.,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Howard L. Halm, Judge. Reversed.
Steinbrecher and Associates and Edward Steinbrecher for
Plaintiff and Appellant.
Manning & Kass, Ellrod, Ramirez, Trester LLP, Jeffrey M.
Lenkov, Zubin Farinpour, and Mae G. Alberto, for Defendant and
Respondent.
Jing Huang was injured boarding a shuttle bus provided by
Bicycle Casino, Inc. (Bicycle Casino or the casino), which
transported passengers from Monterey Park to Bicycle Casino in
Bell Gardens. Huang sued Bicycle Casino for negligence. The
trial court granted Bicycle Casino’s motion for summary
judgment. We reverse.
FACTS AND PROCEDURE
Huang alleged Bicycle Casino was a common carrier and
had a duty and responsibility to ensure the safety and security of
its patrons who took the shuttle bus. Bicycle Casino allegedly
knew or should have known of the dangers associated with
patrons boarding the shuttle bus and was negligent in failing to
provide a safe passageway for its patrons to enter the shuttle.
The relevant facts reflected in the parties’ separate
statements of undisputed material facts are as follows. According
to the Asian Games Manager at Bicycle Casino, the casino
operated a free shuttle service for a select group of people to
whom it disbursed advertisements. The shuttle picked up
passengers at certain restaurants and other landmarks on public
streets and took them to Bicycle Casino to gamble.
The shuttle picked up passengers in Monterey Park on
Garvey Street. It had been picking up passengers at that location
since March 2012. The shuttle held 45 people, including the
driver. There were no shuttle stop signs. The shuttle driver
typically stood at the top of the steps of the bus, and the waiting
passengers would “crowd” onto the shuttle. The driver collected
players cards that Bicycle Casino issued. Huang filled out
paperwork to receive the card, but she did not pay any money for
it. The shuttle passengers had access to special promotions like
gambling chips and free lunches when they arrived at Bicycle
2
Casino, where a casino host would return their players cards as
they disembarked the shuttle. This was the purpose of checking
their players cards when they boarded the shuttle. But
individuals could board the shuttle if they did not have a players
card. In this event, the shuttle driver would ask for their
identification.
On October 22, 2012, at around 1:00 p.m., Huang was
waiting for the Bicycle Casino shuttle along with a crowd of
others. One witness estimated approximately 40 to 50 people
were waiting, while another estimated 60 to 70. The shuttle was
supposed to pick up passengers at 1:15 p.m. The next pick up
time was 2:15 p.m. When the shuttle arrived, it stopped
approximately 20 to 30 meters from where the group was
standing. The waiting crowd ran toward the shuttle, and Huang
rushed to the shuttle with everyone else. Approximately 20
people had already boarded the shuttle at the time Huang tried
to board. Another person in the waiting crowed described the
scene as “complete disorder” and “chaos.” Huang was on the left
side of the shuttle entrance, and with her left hand on the
handrail, she put her right foot on the first step. The crowd on
the right side surged, and she was pushed and fell. But
according to the shuttle driver, “[e]verybody else lined up,” and
Huang cut in line. Paramedics took Huang to the hospital, where
she had an X-ray. She had a broken bone in her left hip that
required surgery the next day.
This was not the first instance in which a waiting crowd
rushed the shuttle and pushed or shoved to board—it happened
“all the time.” The 1:15 p.m. pickup time was popular. It also
was not the first time there were more people waiting than there
were seats on the shuttle, and the scene became “chaotic.”
3
Bicycle Casino had not given the shuttle driver any written
policies or procedures to follow in operating the shuttle, nor did it
give him any training in operating the shuttle. But the driver
had more than 10 years’ experience in driving buses, including
for other casinos, and he had driven larger casino shuttles before.
When the driver first started driving the shuttle, he had a
casino host accompanying him on the shuttle. The host would
exit the shuttle and help the passengers line up and board. The
host had the driver tell the waiting passengers in Chinese that
the shuttle would not leave until they formed a line. After
approximately half a month, the casino host stopped
accompanying the driver regularly, though the driver would
occasionally ask the host to accompany him when he saw the
passengers becoming disorderly. The host told the shuttle
drivers to make sure the waiting passengers formed a line before
they even opened the door because he had seen people shoving
each other from “[t]he very first.” There was no Bicycle Casino
host on the shuttle on the day in question, solely a driver.
Prior to Huang’s incident, Bicycle Casino had never
received a report of an injury on or in connection with its shuttle
service. Huang never saw anyone fall, push, or shove others to
get on the shuttle, prior to her incident.
Huang proffered the expert witness declaration of
Augustine Zemba, who had testified in more than 600 depositions
involving bus-related issues and testified in more than 80 court
trials. He had more than 50 years’ experience managing and
operating large bus fleets. Zemba opined that Bicycle Casino was
operating the shuttle as a common carrier. He further opined
that Bicycle Casino was negligent in that it failed to properly
train its bus drivers on the safe and orderly boarding of
4
passengers and have established, written safe-boarding
procedures. He also concluded that it was foreseeable a
passenger trying to board the shuttle under the circumstances of
this case would be pushed, shoved, or bumped and fall. Bicycle
Casino should have had a host or second person from the casino
assisting the driver and passengers in safely boarding the bus.
According to Zemba, this host should have made sure that the
door to the shuttle remained closed until the passengers lined up
several feet from the door to board one at a time. Bicycle Casino
also should have provided a regular bus stop so that passengers
knew where to wait, and it should have stopped the shuttle there
instead of 30 meters away, causing a rush to the shuttle.
Bicycle Casino objected to Zemba’s entire declaration and to
specific statements in it. It objected to the entire declaration on
the grounds that it lacked foundation, Zemba lacked personal
knowledge, he failed to state the basis for his opinion, and he had
no experience or expertise in casino shuttle buses. Among other
things, it also objected to the statements that Bicycle Casino was
a common carrier; that it was foreseeable a passenger trying to
board the shuttle under the circumstances of this case would be
pushed, shoved, or bumped and fall; and that Bicycle Casino was
negligent in failing to provide a host on the shuttle.
The court granted Bicycle Casino’s motion for summary
judgment and sustained all objections to Zemba’s declaration. It
held Bicycle Casino was not a common carrier and owed only a
duty of ordinary care to the shuttle passengers. But the scope of
the ordinary duty of care did not extend to protecting Huang from
being bumped by other passengers as she boarded the shuttle. In
light of the ruling on duty, the court declined to address Bicycle
5
Casino’s additional argument that Huang could not prove
causation.
The court entered judgment for Bicycle Casino, and Huang
timely appealed.
STANDARD OF REVIEW
The trial court shall grant a motion for summary judgment
if all the papers show there is no triable issue as to any material
fact and the moving party is entitled to a judgment as a matter of
law. (Code Civ. Proc., § 437c, subd. (c).) The defendant moving
for summary judgment has the burden of establishing either (1)
one or more elements of the plaintiff’s causes of action cannot be
established or (2) a complete affirmative defense to the causes of
action exists. (Code Civ. Proc., § 437c, subds. (o)(1), (2), (p)(2).)
To demonstrate the elements of a cause of action cannot be
established, the defendant may show the plaintiff does not
possess evidence needed to support a prima facie case and cannot
reasonably obtain the needed evidence. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 854.) The defendant may
also, but need not, present evidence conclusively negating an
element of the cause of action. (Ibid.) Once the defendant has
met its initial burden, the burden shifts to the plaintiff to produce
evidence showing a triable issue of material fact. (Code Civ.
Proc., § 437c, subd. (p)(2).)
On appeal from summary judgment, we review the record
de novo and must independently determine whether triable
issues of material fact exist. (Saelzler v. Advanced Group 400
(2001) 25 Cal.4th 763, 767; Guz v. Bechtel National, Inc. (2000)
24 Cal.4th 317, 334.) We resolve any evidentiary doubts or
ambiguities and view all inferences from the evidence in the light
most favorable to the party opposing summary judgment.
6
(Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843;
Saelzler v. Advanced Group 400, supra, at p. 768.)
DISCUSSION
The elements of a negligence cause of action are a legal
duty, a breach of the legal duty, proximate or legal cause, and a
resulting injury. (United States Liab. Ins. Co. v. Haidinger-
Hayes, Inc. (1970) 1 Cal.3d 586, 594.) In this case, Huang alleged
Bicycle Casino was a common carrier, a type of entity that owes a
heightened duty of care to its passengers under certain
circumstances. Bicycle Casino argued it was not a common
carrier and thus owed only a duty of ordinary care to its shuttle
passengers. But even then, Bicycle Casino asserted the scope of
the duty of ordinary care did not extend to preventing the harm
Huang suffered.
We address the common carrier issue first and then turn to
the scope of the duty of ordinary care. We conclude the court
erred in holding Bicycle Casino was not a common carrier as a
matter of law, as there is a triable issue of material fact on the
point. We further conclude that, even if the casino were a private
carrier owing only a duty of ordinary care, there was no basis for
establishing a “no duty” rule in this case.
1. Common Carrier
A common carrier of persons includes “[e]veryone who
offers to the public to carry persons.” (Civ. Code, § 2168.) The
Civil Code treats common carriers differently depending on
whether they act gratuitously or for reward. (Gomez v. Superior
Court (2005) 35 Cal.4th 1125, 1130 (Gomez).) “A carrier of
persons without reward must use ordinary care and diligence for
their safe carriage.” (Civ. Code, § 2096.) But “[c]arriers of
persons for reward have long been subject to a heightened duty of
7
care.” (Gomez, supra, at p. 1128.) Such carriers “must use the
utmost care and diligence for [passengers’] safe carriage, must
provide everything necessary for that purpose, and must exercise
to that end a reasonable degree of skill.” (Civ. Code, § 2100;
accord Gomez, supra, at p. 1130.) While these carriers are not
insurers of their passengers’ safety, “[t]his standard of care
requires common carriers ‘to do all that human care, vigilance,
and foresight reasonably can do under the circumstances.’ ”
(Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th
1499, 1507 (Squaw Valley).)
Whether a party is a common carrier for reward may be
decided as a matter of law when the material facts are not in
dispute. (Squaw Valley, supra, 2 Cal.App.4th at p. 1506.) When
the material facts are disputed, it is a question of fact for the
jury. (Gradus v. Hanson Aviation, Inc. (1984) 158 Cal.App.3d
1038, 1048-1049 (Gradus); see CACI No. 901 [“Status of Common
Carrier Disputed”].)
Factors bearing on a party’s common carrier status include:
(1) whether the party maintained an established place of
business for the purpose of transporting passengers; (2) whether
the party engaged in transportation as a regular business and
not as a casual or occasional undertaking; (3) whether the party
advertised its transportation services to the general public; and
(4) whether the party charged standard rates for its service.
(Gradus, supra, 158 Cal.App.3d at p. 1048; CACI No. 901.) The
party need not have a regular schedule or a fixed route to be a
common carrier, nor need the party have a transportation license.
(Gradus, supra, at p. 1048; CACI No. 901.)
Not all these factors need be present for the party to be a
common carrier subject to the heightened duty of care. (See
8
CACI No. 901 (2016 ed.) Sources and Authority, p. 546 [“Note
that these factors may not be applicable in all cases.”].) For
instance, “[i]t is now well established that commercial operators
of elevators and escalators” may be common carriers for reward
(Gomez, supra, 35 Cal.4th at p. 1131), even though stores do not
maintain an established place of business solely for purposes of
transporting escalator or elevator passengers. And “[a]lthough a
store does not charge for use of its elevators or escalators, it
profits from the utilization of these devices to assist customers in
shopping at the store.” (Squaw Valley, supra, 2 Cal.App.4th at
p. 1508.) In other words, the “reward” contemplated by the
statutory scheme need not be a fee charged for the transportation
service. (Champagne v. A. Hamburger & Sons, Inc. (1915) 169
Cal. 683, 692 [“Reward does not necessarily import that there
must be a fare paid for carriage . . . .”].) The reward may be the
profit generated indirectly by easing customers’ way through the
carriers’ premises. (Treadwell v. Whittier (1889) 80 Cal. 574,
592.)
Also, “the ‘public’ does not mean everyone all of the time;
naturally, passengers are restricted by the type of transportation
the carrier affords. [Citations.] ‘One may be a common carrier
though the nature of the service rendered is sufficiently
specialized as to be of possible use to only a fraction of the total
population.’ [Citation.] To be a common carrier, the entity
merely must be of the character that members of the general
public may, if they choose, avail themselves of it.” (Squaw Valley,
supra, 2 Cal.App.4th at pp. 1509-1510.) “Hence, a common
carrier [for reward] is any entity which holds itself out to the
public generally and indifferently to transport goods or persons
from place to place for profit.” (Id. at p. 1508.)
9
Applying these principles, we hold there is a triable issue of
material fact on whether the Bicycle Casino shuttle was a
common carrier. The shuttle was for reward in the same sense
that department stores offer escalators or elevators for reward.
Bicycle Casino reaped reward from the shuttle by transporting
passengers to its premises, where they disembarked, gambled,
and lost money to the casino. As to whether the casino held the
shuttle out generally and indifferently to the public, Bicycle
Casino’s Asian Games Manager declared that it sent the
advertisements for the shuttle to a select group of people. But
there was no further evidence about how the casino selected this
group, or evidence showing that it was, in fact, a small group.
Even if the advertisements targeted a particular sector of the
public, evidence demonstrated the casino offered the shuttle
indiscriminately to the public in the sense that anyone wishing to
go to its premises could board the shuttle. The shuttle stopped on
public streets. Passengers could show the driver a players card
to board or any other form of identification, if they did not have a
players card. At the very least, there was a triable issue on
whether Bicycle Casino held the shuttle out to the public
generally and indifferently, and the casino was not entitled to
summary adjudication on the common carrier issue.
Bicycle Casino relies on the fact that it does not maintain
an established place of business solely for transporting
passengers, but neither do department stores and ski resorts, and
yet courts have found their escalators, elevators, and ski lifts to
be common carriers for reward. (Champagne v. A. Hamburger &
Sons, Inc., supra, 169 Cal. at pp. 692-693; Squaw Valley, supra, 2
Cal.App.4th at p. 1508.) It is not dispositive that the casino’s
primary business is something other than transportation. What
10
ultimately matters is whether the casino indiscriminately offered
the shuttle to the public and whether it offered the shuttle for
reward.1
Bicycle Casino’s moving papers attempted to demonstrate
that its duty of ordinary care did not extend to preventing the
harm Huang suffered. But it never attempted to demonstrate
that, assuming it was a common carrier, the duty of utmost care
and diligence did not extend to preventing Huang’s harm. We
may reverse the summary judgment for Bicycle Casino on this
basis alone.
2. Scope of Duty of Ordinary Care
The trial court held Bicycle Casino was subject to a duty of
ordinary care and had no such duty to prevent Huang’s injury in
this case, as a matter of law. Even if we assume for the sake of
argument that Bicycle Casino was not a common carrier, and
therefore the duty of ordinary care applied here, we would decline
1 Huang argues the court erred in sustaining Bicycle
Casino’s objection to the entirety of her expert witness
declaration. She does not address the specific objection that the
court sustained to Zemba’s opinion that Bicycle Casino was
acting as a common carrier (on the ground of “[i]mproper legal
opinion by a non-lawyer”). We need not decide whether the court
erred in sustaining the objections to Zemba’s declaration because
there is no prejudice. Our analysis does not rely on Zemba’s
declaration, but on the facts adduced from deposition transcripts,
percipient witness declarations, and other documentary evidence
the parties submitted with their briefing below. Thus, even
without considering Zemba’s declaration, a triable issue of
material fact existed.
11
to find an exemption from the duty of ordinary care as a matter of
law.
“California law establishes the general duty of each person
to exercise, in his or her activities, reasonable care for the safety
of others. (Civ. Code, § 1714, subd. (a).)” (Cabral v. Ralphs
Grocery Co. (2011) 51 Cal.4th 764, 768 (Cabral).) “Whether a
given case falls within an exception to this general rule, or
whether a duty of care exists in a given circumstance, ‘is a
question of law to be determined on a case-by-case basis.’ ”
(Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472
(Parsons).) This is true whether we arrive at a no-duty holding or
a holding merely limiting the scope of the duty. (Cabral, supra,
at p. 773.)
“Duty is not an immutable fact, but rather an expression of
policy considerations leading to the legal conclusion that a
plaintiff is entitled to a defendant’s protection.” (Ludwig v. City
of San Diego (1998) 65 Cal.App.4th 1105, 1110.) In the absence
of a statute establishing an exception to the duty of ordinary care,
“courts should create one only where ‘clearly supported by public
policy.’ ” (Cabral, supra, 51 Cal.4th at p. 771.)
The primary factor in the duty analysis is foreseeability.
(Pedeferri v. Seidner Enterprises (2013) 216 Cal.App.4th 359, 366
(Pedeferri).) We evaluate foreseeability “at a relatively broad
level of factual generality.” (Cabral, supra, 51 Cal.4th at p. 772.)
Thus, our task “ ‘is not to decide whether a particular plaintiff’s
injury was reasonably foreseeable in light of a particular
defendant’s conduct . . . . [Instead, we must] evaluate more
generally whether the category of negligent conduct at issue is
sufficiently likely to result in the kind of harm experienced that
liability may appropriately be imposed [on the negligent party].’ ”
12
(Ibid.) Foreseeability involves three considerations: “ ‘the
[general] foreseeability of harm to the plaintiff, the degree of
certainty that the plaintiff suffered injury, [and] the closeness of
the connection between the defendant’s conduct and the injury
suffered.’ ” (Parsons, supra, 15 Cal.4th at p. 473; see Pedeferri,
supra, at p. 367.)
Foreseeability, while the primary factor, is not the end of
the duty analysis. (Pedeferri, supra, 216 Cal.App.4th at p. 368.)
“The next step is to assess whether other public policies militate
against a duty notwithstanding the general foreseeability of the
harm.” (Ibid.) These factors include “ ‘the moral blame attached
to the defendant’s conduct, the policy of preventing future harm,
the extent of the burden to the defendant and consequences to
the community of imposing a duty to exercise care with resulting
liability for breach, and the availability, cost, and prevalence of
insurance for the risk involved.’ ” (Parsons, supra, 15 Cal.4th at
p. 473.) Like foreseeability, we evaluate these factors at a broad
level of generality, and ask “not whether they support an
exception to the general duty of reasonable care on the facts of
the particular case before us, but whether carving out an entire
category of cases from that general duty rule is justified by
[these] clear considerations of policy.” (Cabral, supra, 51 Cal.4th
at p. 772.)
Our consideration of foreseeability and the other public
policy factors at a general and categorical level is important, as
explained by our Supreme Court in Cabral: “By making
exceptions to Civil Code section 1714’s general duty of ordinary
care only when foreseeability and policy considerations justify a
categorical no-duty rule, we preserve the crucial distinction
between a determination that the defendant owed the plaintiff no
13
duty of ordinary care, which is for the court to make, and a
determination that the defendant did not breach the duty of
ordinary care, which in a jury trial is for the jury to make.”
(Cabral, supra, 51 Cal.4th at p. 772.) This is why the court
deciding duty assesses foreseeability from the general category of
negligent conduct at issue. (Id. at p. 773.) When the court
decides the defendant owed the plaintiff a duty of ordinary care,
the jury then considers the case-specific foreseeability of the
plaintiff’s injury in assessing whether the defendant breached the
duty of ordinary care. (Ibid.) An approach in which the court
focuses its duty inquiry on case-specific facts “would tend to
‘eliminate the role of the jury in negligence cases, transforming
the question of whether a defendant breached the duty of care
under the facts of a particular case into a legal issue to be decided
by the court . . . .’ ” (Ibid.) In short, the legal question of whether
to make an exception to the general duty of ordinary care, “so
that the defendant owed no duty to the plaintiff, or owed only a
limited duty, is to be made on a more general basis suitable to the
formulation of a legal rule, in most cases preserving for the jury
the fact-specific question of whether or not the defendant acted
reasonably under the circumstances.” (Ibid.)2
2 Cabral noted that California is in accord with the
Restatement, which explains: “ ‘No-duty rules are appropriate
only when a court can promulgate relatively clear, categorical,
bright-line rules of law applicable to a general class of cases.’
[Citation.] ‘. . . When no such categorical considerations apply
and reasonable minds could differ about the competing risks and
burdens or the foreseeability of the risks in a specific
case, . . . courts should not use duty and no-duty determinations
to substitute their evaluation for that of the factfinder.’ ”
14
Here, our first step must be to articulate the duty at issue.
(Pedeferri, supra, 216 Cal.App.4th at p. 365.) Bicycle Casino
appears to acknowledge that it generally had a duty of ordinary
care to its passengers. It asserts, however, that it did not have a
duty to designate a bus stop (so as to avoid a stampede because
the passengers waited far from where the shuttle stopped), or to
have a casino host or security personnel on board. Bicycle
Casino’s articulation of duty is based too closely on the case-
specific facts. We will instead frame the issue as whether a
shuttle operator owes its passengers a duty to exercise ordinary
care in deciding where and how to board passengers. (See, e.g.,
Cabral, supra, 51 Cal.4th at p. 774 [framing the duty issue as
“whether a freeway driver owes other drivers a duty of ordinary
care in choosing whether, where and how to stop on the side of
the road”]; Pedeferri, supra, at p. 366 [framing the duty issue as
“whether a commercial vendor owes a duty of care to persons on
or near the roadways who are injured as a result of the vendor’s
negligence in loading and securing cargo in a vehicle in a way
that distracts the vehicle’s driver”].) We consider foreseeability
first and then the other public policy factors.
a. Foreseeability Considerations
To reiterate, we consider “ ‘the [general] foreseeability of
harm to the plaintiff, the degree of certainty that the plaintiff
suffered injury, [and] the closeness of the connection between the
(Cabral, supra, 51 Cal.4th at p. 773, fn. 3, quoting Rest.3d Torts,
Liability for Physical and Emotional Harm, § 7, coms. a, i., pp. 78,
82.)
15
defendant’s conduct and the injury suffered.’ ” (Parsons, supra,
15 Cal.4th at pp. 472-473.)
We may generally foresee that a shuttle operator’s failure
to try to direct or control the boarding of a large group (the
general category of negligent conduct at issue) could result in the
passengers jockeying for positions, jostling each other, and
pushing or shoving each other. This is especially the case when
the shuttle clearly is too small to hold all members of the waiting
group. It is further foreseeable that passengers pushing or
shoving to board first might knock someone to the ground, either
intentionally or negligently—the type of harm that occurred here.
“This chain of foreseeability is both short and direct.” (Pedeferri,
supra, 216 Cal.App.4th at p. 367.) Therefore, the connection
between the shuttle operator’s failure to try to direct the boarding
of a large group and the type of injury suffered by Huang is not
too attenuated, remote, or unexpected. (Cabral, supra, 51
Cal.4th at p. 779 [“[T]he question of ‘the closeness of the
connection between the defendant’s conduct and the injury
suffered’ [citation] is strongly related to the question of
foreseeability itself.”].) It is also certain on this record that
Huang suffered injury.
Bicycle Casino contends Huang’s injury was not foreseeable
because the casino had no prior reports of an injury suffered in
this manner, and Huang herself testified that she never saw
anyone fall while trying to board the shuttle. These kind of case-
specific facts might play into the trier of fact’s decision on breach
of duty or causation, but they should not be the basis for a
categorical no-duty rule here. (Cabral, supra, 51 Cal.4th at
p. 777 [rejecting the defendant’s contention that case-specific
circumstances made the plaintiff’s injury unforeseeable for
16
purposes of the duty analysis, and noting that the case-specific
circumstances “probably played a role in the jury’s decision to
assign” the defendant a minimal share of responsibility for the
collision, “but they do not show lack of foreseeability for the
entire category of negligent conduct at issue here”].)
We must distinguish between the separate questions of
whether a duty exists and whether the casino breached that duty
by the failure to use the care that a reasonable person would
under the circumstances.3 “[T]he question of foreseeability in a
‘duty’ context is a limited one for the court, and readily
contrasted with the fact-specific foreseeability questions bearing
on negligence (breach of duty) and proximate causation posed to
the jury or trier of fact.” (Lopez v. McDonald’s Corp. (1987) 193
Cal.App.3d 495, 507.) In the sense of foreseeability pertinent to
duty, we focus on the general character of the event at issue and
inquire whether it was “ ‘ “likely enough in the setting of modern
life that a reasonably thoughtful [person] would take account of it
in guiding practical conduct.” ’ ” (Laabs v. Southern California
Edison Co. (2009) 175 Cal.App.4th 1260, 1273.) That a shuttle
bus might not have enough seats for a large group of waiting
passengers is likely enough in the setting of modern life that we
can deem such an event generally foreseeable, and the
scrambling for seats among the passengers likewise foreseeable.
Even if we consider the case-specific facts here, the absence
of any actual falls prior to this incident should not be dispositive.
3 In the case of a common carrier, the question for the trier of
fact would be whether the casino breached the duty of utmost
care and diligence, under the circumstances.
17
It was sufficient that there had been prior incidents of crowds too
large for the shuttle. During these incidents, the scene had
devolved into chaos, so much so that the driver had asked the
casino host to accompany him when the passengers became
disorderly.
Our Supreme Court has cited a number of good reasons for
refusing to give dispositive effect to the absence of prior similar
incidents when it considered the similar issue of a landowner’s
duty to protect invitees against the criminal acts of third persons.
First, if the absence of any prior similar incidents is dispositive,
“the first victim always loses, while subsequent victims are
permitted recovery. Such a result is not only unfair, but is
inimical to the important policy of compensating injured
parties . . . .” (Isaacs v. Huntington Memorial Hospital (1985) 38
Cal.3d 112, 125.) Second, such a rule “leads to arbitrary results
and distinctions. [Citation.] [T]here is uncertainty as to how
‘similar’ the prior incidents must be to satisfy the rule. The rule
[also] raises a number of other troubling questions. For example,
how close in time do the prior incidents have to be? How near in
location must they be?” (Id. at p. 126.) “Third, the rule
erroneously equates foreseeability of a particular act with
previous occurrences of similar acts,” and our Supreme Court
“has already rejected that notion. ‘ “The mere fact that a
particular kind of an accident has not happened before does
not . . . show that such accident is one which might not
reasonably have been anticipated.” ’ ” (Ibid.) Fourth, and
“[f]inally, the ‘prior similar incidents’ rule improperly removes too
many cases from the jury’s consideration.” (Ibid.)
For these reasons, we are not persuaded by Bicycle Casino’s
reliance on Porter v. California Jockey Club, Inc. (1955) 134
18
Cal.App.2d 158 (Porter), in which the court affirmed a judgment
of nonsuit for the defendant racetrack owner. The plaintiff was
injured when she went to place a bet between races, and a man
rushing up the stairway to the betting windows ran into her. (Id.
at p. 159.) Evidence showed spectators were in the habit of
crowding the stairways and running to the betting windows just
before each race started. (Ibid.) But because there was “no
evidence of any prior negligent conduct on the part of even one
spectator,” the court refused to impose a duty on the racetrack
owner “to take steps to guard against such contingency.” (Id. at
p. 160.) The Porter court did not have the benefit of our Supreme
Court’s reasoning as to why the lack of prior similar incidents
should not dispose of the question of foreseeability. Moreover,
Porter did not address the foreseeability and other public policy
considerations that go into a duty analysis, other than to say the
harm was not foreseeable because no similar incidents had
occurred before.
Bicycle Casino also suggests it had no duty here because
Huang was injured as a result of the wrongful conduct of third
parties (the unidentified passengers who knocked Huang down).
Although, “as a general matter, there is no duty to act to protect
others from the conduct of third parties” (Delgado v. Trax Bar &
Grill (2005) 36 Cal.4th 224, 235), we impose a duty to take
affirmative action to control the wrongful acts of third parties
when such conduct may be reasonably anticipated (Juarez v. Boy
Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 402). In other
words, a duty is imposed when such third party conduct was
reasonably foreseeable. As we have already discussed, that an
overlarge group of passengers might push or shove each other to
board was generally foreseeable here. Whether unidentified
19
passengers might be primarily or partially responsible for
Huang’s injury, or whether she bears some responsibility for it
herself, are questions for the trier of fact in considering
causation. The argument does not convince us to create a
categorical no-duty rule here. (Cabral, supra, 51 Cal.4th at
p. 777.)
In sum, the foreseeability considerations weigh against the
creation of a categorical exception to the duty of ordinary care in
this case.
b. Other Public Policy Considerations
The remaining policy considerations are “ ‘the moral blame
attached to the defendant’s conduct, the policy of preventing
future harm, the extent of the burden to the defendant and
consequences to the community of imposing a duty to exercise
care with resulting liability for breach, and the availability, cost,
and prevalence of insurance for the risk involved.’ ” (Parsons,
supra, 15 Cal.4th at p. 473.) Along with foreseeability, the extent
of the burden to the defendant is the crucial consideration.
(Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213.)
Here, the extent of the burden on Bicycle Casino weighs
against the creation of a no-duty rule; that is to say, our
recognition of a duty does not place a necessarily heavy burden
on shuttle operators. Bicycle Casino argues imposing a duty to
have safety personnel or a host on board is too costly and places
too heavy a burden on society. We are not holding that shuttle
operators must hire safety personnel to ride on shuttles in
addition to the driver or provide a casino host for every ride.
There are precautionary measures the shuttle operator could
take short of these things that would pose little to no financial
burden on it. The shuttle driver could simply inform the waiting
20
crowd that no one may board unless they line up in an orderly
fashion, as the casino host suggested to the driver in this case,
and as the driver had apparently done on previous occasions at
the host’s direction. Or, notice of such a rule could be posted on
the schedule the casino disburses to the targeted group of
potential passengers. In the alternative, or in addition, the
driver could stop as close as safely possible to large waiting
crowds, so there is little or no room for the passengers to run
toward the shuttle. Bicycle Casino contends such a measure
would not have mattered because Huang was not injured in the
run to the shuttle—she was injured as she stepped onto the
shuttle stairs. But the 20-30 meter dash to the shuttle door
contributed to the excitement of the crowd and made the scene at
the stairs more chaotic than it needed to be. There are several
inexpensive measures shuttle operators in these situations may
take, and we are not suggesting that shuttle operators must take
any or all of the measures we have discussed. We are not
creating a new duty to have safety personnel present on all
shuttles. We are merely deciding whether to create an exception
to the general duty of ordinary care that all individuals must
exercise in their activities. (Cabral, supra, 51 Cal.4th at p. 783
[“The question is not whether a new duty should be created, but
whether an exception to Civil Code section 1714’s duty of
exercising ordinary care in one’s activities, including operation of
a motor vehicle, should be created.”].)
The other public policy factors also do not support the
creation of a no-duty rule here. A shuttle operator who
negligently boards a large group of passengers does not act in an
especially blameworthy manner, but such conduct is not
particularly encouraged or authorized either. (Cabral, supra, 51
21
Cal.4th at p. 782 [noting that the defendant’s negligent conduct
(stopping a truck alongside a freeway) was “hardly a heinous act,
but neither does it receive any special legal protection” in sense
that no state or federal law encouraged or authorized it].)
Imposing a duty of ordinary care in deciding where and how to
board groups of passengers with resulting liability for negligent
exercise of that duty would discourage negligence and serve the
policy of preventing future harm. (Pedeferri, supra, 216
Cal.App.4th at p. 368.)
Overall, we conclude an exception to the duty of ordinary
care is not “ ‘clearly supported by public policy’ ” (Cabral, supra,
51 Cal.4th at p. 781), nor do foreseeability considerations support
an exception. We would decline to hold Bicycle Casino had no
duty of ordinary care as a matter of law. Accordingly, it was not
entitled to summary judgment on this ground.4
3. Causation
The only other ground on which Bicycle Casino moved for
summary judgment was a lack of causation as a matter of law.
The trial court did not reach this issue, in light of its holding on
the lack of duty. We hold Bicycle Casino was not entitled to
summary judgment on causation grounds.
4 Huang argues the trial court erred in sustaining Bicycle
Casino’s objection to the entirety of Zemba’s expert witness
declaration. As with the common carrier issue, we do not rely on
Zemba’s declaration (see fn. 1, ante), and this is particularly true
as to the existence of duty, which is a legal question for the court.
Thus, we need not decide whether the court erred in sustaining
the objection to his declaration.
22
The casino’s argument on this issue consisted of bare
assertions that Huang could not prove her injury was caused by
the failure to have a guard or other employee stationed on the
shuttle, the failure to have a larger shuttle with more seats
available, or the driver’s stopping the shuttle 30 meters away
from the crowd. Similarly, Bicycle Casino’s separate statement of
undisputed material facts simply stated that Huang lacked
evidence each of these things caused a third party patron to
bump into her. While it did not rule on the causation issue, the
trial court sustained Huang’s objections to these statements of
fact.
“Proximate cause . . . is generally a question of fact for the
jury . . . .” (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22
Cal.3d 508, 520.) Even if another passenger’s pushing and
shoving knocked Huang over, Bicycle Casino is not necessarily
resolved of liability. “A defendant’s negligent conduct may
combine with another factor to cause harm; if a defendant’s
negligence was a substantial factor in causing the plaintiff’s
harm, then the defendant is responsible for the harm; a
defendant cannot avoid responsibility just because some other
person, condition, or event was also a substantial factor in
causing the plaintiff’s harm; but conduct is not a substantial
factor in causing harm if the same harm would have occurred
without that conduct.” (Yanez v. Plummer (2013) 221
Cal.App.4th 180, 187.) Moreover, a third party’s conduct is a
superseding force cutting off the defendant’s liability only if it
was unforeseeable and the injury it caused was unforeseeable
under the circumstances of the case. (Akins v. County of Sonoma
(1967) 67 Cal.2d 185, 199.) Under these principles, Bicycle
Casino’s motion failed to show that it did not cause Huang’s
23
injury as a matter of law. There are genuine issues of material
fact regarding causation here.
DISPOSITION
The judgment is reversed. The trial court shall enter an
order denying Bicycle Casino’s motion for summary judgment.
Huang shall recover costs on appeal.
FLIER, J.
WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.
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