Hernandez v. Southern California Rapid Transit District

Opinion

McCLOSKY, Acting P. J.-

Nature of the Case

Lorenza Hernandez appeals from the trial court’s August 19, 1981, order dismissing this action as to respondent Southern California Rapid Transit District. (Code Civ. Proc., § 581, subd. 3.) Said order of dismissal was filed after respondent’s demurrer to appellant’s complaint was sustained without leave to amend.

Contentions

Appellant contends (1) that she properly pled a cause of action for negligence against respondent and (2) that respondent is not immune from liability under Government Code sections 820.2, 820.8, or 845.

Facts

On April 17, 1981, appellant filed a complaint for wrongful death against respondent, Hector Holguin, and certain Does alleging

1

that her son, John Placentia, was killed on August 22, 1980, by Holguin who was riding as a pay

[1065]

ing passenger on a bus that was owned and operated by respondent Southern California Rapid Transit District (hereafter SCRTD).

In the first cause of action of her complaint, appellant alleged that after entering said bus and:

“(W]hile said bus was moving, defendant Holguin, Does 1 through 2 inclusive, and decedent proceeded to engage in a loud and boisterous argument and yelled at one another and otherwise acted in a loud, boisterous and unruly manner, thereby greatly disturbing others on the bus.

“Said loud, boisterous ánd unruly conduct continued until defendant Holguin, Does 1 through 2 inclusive, shot and killed decedent on said bus which was at that time traveling near 419 So. Spring Street.

“At all times material herein, defendants and each of them, had a duty to its passengers, as a common carrier, to use the utmost reasonable care to protect its passengers including decedent from all foreseeable risks of harm.

“At all times material herein, it was foreseeable by defendants, and each of them, that passengers on the bus would be subject to unreasonable risks of harm in that defendants and each of them knew, or should have known, that the area surrounding . . . , where decedent was killed, was known to be an area plagued by excessive violence including but not limited to murders, rapes, assaults, batteries and robberies; and further that defendants and each of them knew, or should have known, that the number of violent crimes on Southern California Rapid Transit District buses were increasing and was the cause of increased injuries and harm to SCRTD bus drivers and passengers; and further that defendants, and each of them, knew or should have known that buses traveling the route or line on which decedent was shot and killed were known to be targets of criminal violence against bus drivers and passengers; and further that defendants, and each of them knew or should have known that dangerous or deadly weapons would be carried onto said bus by paying passengers thereby greatly increasing the likelihood of acts of violence in buses; and further that defendants, and each of them, knew or should have known that the arguing and the loud, boisterous and unruly conduct between defendant Holguin and decedent would result in harm to someone on said bus; and further that defendants and each of them knew or should have known, that security on said bus and within said bus system was inadequate to protect persons on said buses.