Churchman v. Bay Area Rapid Transit Dist.

Filed 8/28/19 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

ALICE B. CHURCHMAN, Plaintiff and Appellant, v. A151698 BAY AREA RAPID TRANSIT DISTRICT, (Alameda County Super. Ct. No. RG16829239) Defendant and Respondent.

In a crowded, noisy train station, a passenger loses her balance, falls, and injures herself. The main issue we are asked to decide is whether the train operator owed the passenger a heighted duty of care under Civil Code section 2100, which imposes on common carriers a duty to “use the utmost care and diligence for [passengers’] safe carriage.” We hold that section 2100 does not apply to minor, commonplace hazards in a train station. Moreover, because the train operator here is a public agency, it is not liable for personal injuries in the absence of a statute providing for liability. (Gov. Code, § 815.) We conclude there is no statutory basis for liability and affirm the trial court’s dismissal of the action. BACKGROUND In her third amended complaint, Alice Churchman alleged she bought a train ticket at a station operated by the Bay Area Rapid Transit District (District). She passed through turnstiles and went to the boarding platform. Several factors combined to create a confusing situation on the platform: the “opening and closing of doors on opposite side [sic] of the cars”; partially inaudible and confusing instructions broadcast over the public

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address system; and “abrupt turns and moves” by other passengers trying to board a train. These factors caused Churchman to lose her balance and fall. Churchman sued the District for violating its duty of care as a common carrier. (Civ. Code, § 2100 et seq.) Relying on McGettigan v. Bay Area Rapid Transit Dist. (1997) 57 Cal.App.4th 1011, the District demurred on the ground it has no common law negligence liability and its liability as a common carrier applies only to passengers in transit, i.e., aboard the BART train. The trial court agreed with the District, sustained the demurrer without leave to amend, and dismissed the action. DISCUSSION A. We review an order sustaining a demurrer de novo, exercising our independent judgment as to whether, as a matter of law, the complaint states a cause of action on any available legal theory. (See Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.) We assume the truth of all material factual allegations together with those matters subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Additionally, we review de novo the trial court’s determination on undisputed facts of whether the District owed Churchman a heightened duty of care due to its status as a common carrier. (Orr v. Pacific Southwest Airlines (1989) 208 Cal.App.3d 1467, 1473.) B. Because the District is a public agency, we briefly pause to explain the framework for government tort liability. Prior to 1961, under the common law, the government was generally immune to tort liability. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 931.) In Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 216, our Supreme Court abrogated the rule as unjust. Following Muskopf, the Legislature enacted Civil Code former section 22.3, which temporarily reinstated the law that existed prior to Muskopf. (Nestle, at pp. 931– 932.) The Legislature asked the California Law Revision Commission to study governmental tort liability during the moratorium period. After receiving the