CHIN, J., Dissenting.—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. 1131) 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. 1132.) 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 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 [1143]the ups and downs of a roller coaster with jarring jumps, drops, and unpredictable movements” that “shake[] and wbdpsaw[] 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 [105 Cal.Rptr.2d 387, 19 P.3d 1129] (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 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 [26 Cal.Rptr.3d 304, 108 P.3d 862]; see also Peralta Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal.3d 40, 52 [276 Cal.Rptr. 114, 801 P.2d 357] [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 [55 Cal.Rptr.2d 117, 919 P.2d 731].) Here, because sections 2100 and 2101 were enacted in 1872 and have never been amended, “the intention of the legislature at [that] time . . . controls]” our construction of the phrase “carrier of persons for reward” in those sections. (Walther v. Southern Pacific Co. (1911) 159 Cal. 769, 775 [116 P. 51].) 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 [154 Cal.Rptr. 263].)
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 [1144]Co. (1975) 13 Cal.3d 804, 817 [119 Cal.Rptr. 858, 532 P.2d 1226] [“trae meaning and intent” of Civil Code section “cannot proceed without reference to the Code Commissioners’ Note”]; see also VanArsdale v. Hollinger (1968) 68 Cal.2d 245, 249 [66 Cal.Rptr. 20, 437 P.2d 508] [“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 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 [9 Metc. 1].) 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, 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 trackers, 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., 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 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 [1145]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 Angelí, entitled A Treatise on the Law of Carriers of Goods and Passengers by Land and by Water (hereafter Angelí 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 Angelí 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.” (Angeli 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 “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 “[cjommon 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, [1146]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 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 [1147]reasonably expected to require carriage at any one time” (§ 2184) and to “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. 1140), 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 [95 Cal.Rptr.2d 178, 997 P.2d 493].) In general, “[statutes 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 [241 Cal.Rptr. 67, 743 P.2d 1323].) 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 [228 Cal.Rptr. 184, 721 P.2d 65].)
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. (1916) 269 Mo. 104 [189 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. 1140), [1148]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. 1136, 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 [133 P.2d 626].) 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 foresight reasonably can do under the circumstances. [Citation.]” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785 [221 Cal.Rptr. 840, 710 P.2d 907].) 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 “surpriseQ” riders using means that present “ ‘inherent dangers.’ ” (Maj. opn., ante, at p. 1136.) 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. 1130), 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, [114910]03 [4 Cal.Rptr.3d 103, 75 P.3d 30].) 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 [282 P.2d 12].) In other words “ ‘in the exercise of ordinary care, ... the amount of caution required by the law increases, as does the danger that should reasonably be apprehended.’ ” (Jensen v. Minard (1955) 44 Cal.2d 325, 328 [282 P.2d 7].) Thus, although the majority is rightly concerned about the “ ‘inherent dangers’ ” of thrill rides (maj. opn., ante, at p. 1136), 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 [17 P.2d 715]; see also Samuelson v. PUC (1951) 36 Cal.2d 722, 730 [227 P.2d 256].) 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 a belief that Disney [1150]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 [142 P.2d 7] (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 (1942) 345 Pa. 10 [26 A.2d 461]. (McCordic, supra, 23 Cal.2d at p. 7.) There, with regard to riders of an amusement park ride 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 [221 P.2d 1005], 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 [1151]p. 387.) In support of its conclusion, the Davidson court also cited Potts v. Crafts (1935) 5 Cal.App.2d 83, 84 [42 P.2d 87], 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. 1133.) 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. 1132.)
Disregarding this authority, the majority relies on two California decisions involving amusement park rides (maj. opn., ante, at p. 1133), 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 Cal.App. 563 [32 P.2d 980], 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
[1152]The other decision the majority cites—Kohl v. Disneyland, Inc. (1962) 201 Cal.App.2d 780 [20 Cal.Rptr. 367]—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 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 [1153]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 [119 Cal.Rptr.2d 903, 46 P.3d 372].) 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 cited cases involved conventional and obvious modes of transportation: elevators, escalators, airplanes, mules, and ski lifts. (Smith v. O’Donnell (1932) 215 Cal. 714 [12 P.2d 933] (Smith); Treadwell v. Whittier (1889) 80 Cal. 574 [22 P. 266] (Treadwell); Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499 [3 Cal.Rptr.2d 897] (Squaw Valley); Vandagriff v. J.C. Penney Co. (1964) 228 Cal.App.2d 579 [39 Cal.Rptr. 671] (Vandagriff); McIntyre v. Smoke Tree Ranch Stables (1962) 205 Cal.App.2d 489 [23 Cal.Rptr. 339] (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 [the defendants’] customers ... to and from the different floors of’ ” the 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 [1154]reward.” (§§ 2100, 2101.) Thus, it appears that Treadwell was not a statutory decision at all, but was a policy or common law decision that the “degree of responsibility” that attaches to stagecoach 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 “[l\\ike 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 [27 P. 590], 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 [143 P. 780], 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, italics added.) 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 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^] 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 [1155]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. 1135-1136)—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 given our subsequent holding in McCordic that the ordinary negligence standard of care applies to proprietors of rides at amusement parks.5
[1156]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 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. 1132), 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 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 [322 P.2d 596]—did not hold that a escalator operator is [1157]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.]” (Hendershott v. Macy’s, supra, 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 [140 P.2d 467], 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, italics added.) 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, 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.
[1158]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 park thrill rides—simply to subject Disney to the heightened standard of care applicable to such carriers. I therefore dissent.
Baxter, J., and Wiseman, J.,* concurred.
All further statutory references are to the Civil Code.
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 pp. 1136-1137, fn. 5.)
Barr cited the following decisions: Cooper v. Winnwood Amusement Co., (1932) 227 Mo.App. 608 [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 [1152]do hold that the rale in reference to the degree of care required of a common carrier applies to the operation of such devices’ ”); Brown v. Winnwood Amusement Co. (1931) 225 Mo.App. 1180 [34 S.W.2d 149, 152] (same); Bibeau v. Fred W. Pearce Corp. (1928) 173 Minn. 331 [217 N.W. 374, 376] (“[t]he rale 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 Springs Park v. Schrader (1921) 82 Okla. 244 [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 “doubling] the practicability ... of drawing such an analogy”); Best Park & Amusement Co. v. Rollins (1915) 192 Ala. 534 [68 So. 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 (1915) 134 Tenn. 159 [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. (1909) 242 Ill. 336 [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. 1137-1138.) 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. 1137, citing Lyons v. Wagers (1966) 55 Tenn.App. 667 [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. (1964) 156 Colo. 46 [396 P.2d 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”].)
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. 1133.) However, Neubauer is a decision of a federal district court construing California law. It offered little analysis for its conclusion.
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. 1138-1139.) 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. 1139.) 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[sj” its riders (ibid) than does a mechanical bull. (See People v. Cortez (1985) 166 Cal.App.3d 994, 998 [212 Cal.Rptr. 692] [as “commonly understood,” the [1156]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 [19 Cal.Rptr. 657, 369 P.2d 257] [“ ‘transportation’ ... has been judicially defined as implying ‘the taking up of persons or property at some point and putting them down at another’ [citations]”].)
Vandagriff also cited Simmons v. F.W. Woolworth Co. (1958) 163 Cal.App.2d 709 [329 P.2d 999]. However, in that case, the court did not analyze the issue, but simply accepted the parties’ “stipulation] . . . that the defendant’s operation of the escalator placed it in the category of a common carrier.” (Id. at p. 710.)
Associate Justice, Court of Appeal, Fifth Appellate District, assigned by the Acting Chief Justice pursuant to article VI, section 6, of the California Constitution.