Filed 1/15/20 Cissney v. Bay Area Rapid Transit Dist. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

KATHRYN CISSNEY,

Plaintiff and Appellant,

v.

BAY AREA RAPID TRANSIT DISTRICT,

Defendant and Respondent.

A157021

(Alameda County

Super. Ct. No. RG18907346)

As plaintiff Kathryn Cissney waited for a train on a Bay Area Rapid Transit District (BART) platform, a group of youths attacked her and stole her cell phone. She brought this action against BART, alleging it owed her a heightened duty of care as a common carrier (see Civ. Code, § 2100 (§ 2100)) and that BART’s breach of this duty of care caused her injuries. The trial court sustained BART’s demurrer without leave to amend. We conclude the common carrier duty does not exist in the circumstances before us, and shall accordingly affirm the judgment.

FACTUAL AND PROCEDURAL BACKROUND

Plaintiff alleges as follows: She was waiting for a train on the platform at the Oakland Coliseum BART station on April 22, 2017. A “large group of unruly juveniles” was seen moving thorough the parking lot, jumping over the fare gates, and ascending to the platform where plaintiff waited. At the platform, the youths attacked plaintiff, beating her and stealing her cell phone, before boarding an arriving train and attacking and robbing its passengers. Despite knowing that the “dangerous mob of juveniles” had entered the station, BART did nothing to prevent the attacks. This although there had been at least three similar “mob-style attacks” at the same station in the previous month.

Based on these facts, plaintiff’s operative first amended complaint alleged a single cause of action against BART, for liability based on section 2100. She alleged BART is a common carrier, and that a common carrier’s heightened duty of care applied based on the following circumstances: When plaintiff entered the station, she had to go upstairs to an elevated platform to await the train. There, she had no means of exit other than the stairway or escalators leading to the station entrance, which were blocked by the juveniles. The platform was surrounded by a high-voltage rail, and on the other side was a heavily-trafficked freeway. She alleges she was therefore completely dependent on BART for her safety and well-being, with no means to protect herself or flee the “mob of juveniles.” Nevertheless, and despite its knowledge of the circumstances posing a threat, BART took no measures to protect its passengers from such harm.

BART demurred to the first amended complaint, and the trial court sustained the demurrer without leave to amend and dismissed the action.

DISCUSSION

I. Standard of Review
II.
We review a trial court’s order sustaining a demurrer de novo, exercising our independent judgment on whether the complaint states a cause of action as a matter of law. (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1500–1501 (Lazar).) Thus, we review de novo whether BART owed plaintiff a heightened duty of care as a common carrier under the facts alleged. (Churchman v. Bay Area Rapid Transit Dist. (2019) 39 Cal.App.5th 246, 249 (Churchman).) We assume the truth of all material facts pled in the complaint, as well as those that may be inferred from those expressly alleged. (Lazar, at p. 1501.)

We review the denial of leave to amend for abuse of discretion, reversing if the plaintiff shows a reasonable possibility that the complaint’s defects may be cured by amendment. (Lazar, supra, 69 Cal.App.4th at p. 1501.)

III. Analysis
IV.
A public entity is immune from liability for injury except as provided by statute. (Gov. Code, § 815, subd. (a); Churchman, supra, 39 Cal.App.5th at p. 250.) The only basis plaintiff alleges for BART’s liability to her is the breach of its heightened duty of care as a common carrier. This duty is codified at section 2100, which requires “[a] carrier of persons for reward [to] use the utmost care and diligence for their safe carriage . . . .” This section applies to both public and private common carriers, and it provides a basis for public agency liability. (Churchman, at p. 250; Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785 & fn. 2 (Lopez).) But the heightened duty exists only as long as the relationship of carrier to passenger lasts. Thus, for instance, a carrier owes a heightened duty to a passenger when the passenger manifests an intention to board a streetcar and the conductor stops to receive him or her. (Gray v. City & County of San Francisco (1962) 202 Cal.App.2d 319, 323; Lagomarsino v. Market Street Ry. Co. (1945) 69 Cal.App.2d 388, 395 (Lagomarsino); see also Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1510 [ski lift].)

Our colleagues in Division Five of this court recently set forth the law that applies to a carrier’s duty of care on a station platform—there, as here, a boarding platform in the paid area of a BART station: “While [the section 2100] heightened standard applies to a passenger in transit, it generally does not apply to a passenger waiting in, or passing through, a station or terminal. [Citations.] Our Supreme Court has explained, ‘ “[t]he passenger while in actual progress upon his journey is exposed to countless hazards, gives himself wholly in charge of the carrier . . . . But a rule properly ceases with the reason for it; therefore, as a passenger’s entrance to the carrier’s station is characterized by none of the hazards incident to the journey itself, the rigor of the rule above announced is justly relaxed, in that at such a time and place the carrier is bound to exercise only a reasonable degree of care for the protection of his passengers.” ’ ” (Churchman, supra, 39 Cal.App.5th at pp. 250–251, quoting Falls v. San Francisco etc. R. R. Co. (1893) 97 Cal. 114, 119, italics added; see Churchman, at p. 248.)

Exceptions to this rule exist, however. First, a carrier may have a heightened duty if a passenger is injured while being escorted to the boarding area by the carrier’s agent. (Churchman, supra, 39 Cal.App.5th at p. 251, citing Sanchez v. Pacific Auto Stages (1931) 116 Cal.App. 392, 394, 396–397 (Sanchez) [plaintiff hit by car while being escorted across highway] and Grier v. Ferrant (1944) 62 Cal.App.2d 306, 309–311 (Grier) [disabled passenger slipped on wet surface while escorted by cab company employee].)

This heightened standard of care may also apply to “mobile hazards peculiar to the transportation service, such as cable cars passing through a boarding area (Brandelius v. City & County of S.F. (1957) 47 Cal.2d 729, 736), or jet blasts from an airplane (see Marshall v. United Airlines (1973) 35 Cal.App.3d 84, 87 [(Marshall)]). Trains, cable cars, planes and similar vehicles present special risks, and common carriers are charged with a higher standard of care when operating them.” (Churchman, supra, 39 Cal.App.5th at p. 251.)

Plaintiff contends the heightened standard of care exists here because she had entered the paid area of the BART station, she had gone to the platform, and she had no means to leave the station once the attack began. But under the controlling legal authority, these facts are insufficient to establish a carrier/passenger relationship. We are guided by Churchman and by a case decided by this division earlier, McGettigan v. Bay Area Rapid Transit Dist. (1997) 57 Cal.App.4th 1011 (McGettigan). The plaintiff there fell asleep on a BART train that reached the end of the line at the Richmond station, and he was awakened by a train operator who told him to leave and said he could catch another train on the opposite side of the tracks. The plaintiff was obviously intoxicated and unable to care for his own safety. (Id. at pp. 1014–1015.) After the train left the station, the plaintiff was found lying on the platform with his legs sticking out into the trackway; his leg and face were injured, but he did not recall how the injuries occurred. (Id. at p. 1015.)

The court rejected the plaintiff’s contention that the heightened duty of a carrier applied under these circumstances. It explained that the heightened duty “is owed only while ‘passengers are in transitu, and until they have safely departed the carrier’s vehicle.’ [Citation.] . . . The carrier’s affirmative duty of assistance applies only where the special relationship exists between the parties and the risk of harm arises in the course of that relation.” (McGettigan, supra, 57 Cal.App.4th at pp. 1017–1018.) The court reasoned that the plaintiff could not be left on the train because it was the end of the line, and that “[o]nce he had safely exited the train, the relationship of carrier and passenger terminated. He was in a place of relative safety.” (Id. at p. 1018.) Nor was he attempting to board a train, and the train operator advising him that he could catch a return train on the other platform did not “manifest acceptance of the passenger as a traveler.” (Id. at p. 1019.) At the time he was injured, he was no longer a passenger of the original train and not yet a passenger of the return train. (Id. at pp. 1018–1019.)

McGettigan is dispositive. Like the plaintiff in McGettigan, plaintiff here was in the paid area of a BART station, on the BART platform awaiting a train. She was not attempting to board a train, and no train operator had indicated an acceptance of her as a passenger by stopping the train or opening the doors. The relationship of carrier and passenger had not yet been established, and BART was not yet subject to the heightened duty of care in transporting her.

Plaintiff disputes this conclusion, contending a heightened duty was established by the fact that she was on an elevated platform with no means of escape except by the escalators or stairways that were barred by the group of youths. Thus, she argues, she was completely under the control of BART and dependent on it for her physical safety. But our precedent has determined that the duty of heightened care does not apply to providing and maintaining “safe and adequate stations, platforms, walks, steps, and landings for use in waiting for, approaching, and leaving trains or other means of conveyance in which the transportation is to be, or has been, furnished.” (Marshall, supra, 35 Cal.App.3d at p. 87.) The duty as to those matters by a private carrier is one of only reasonable care (ibid.), and plaintiff’s claim against BART, as a public carrier, is limited to the statutory heightened duty to provide for safe carriage. “The carrier does not become the guardian or insurer of persons about to board streetcars in the sense that a station area is guaranteed as a place of safety from the wrongs of third parties. The relationship of carrier and passenger is not sustained under circumstances of a prospective passenger standing in a station area prior to the immediate approach of a carrier vehicle . . . .” (Lagomarsino, supra, 69 Cal.App.2d at p. 395, italics added.) This case is thus distinguishable from those in which a passenger is injured by criminal activity that takes place while aboard a train or bus. (See, e.g., Terrell v. Key System (1945) 69 Cal.App.2d 682, 684 [plaintiff injured during brawl on train]; Lopez, supra, 40 Cal.3d at pp. 784, 786–788 [plaintiffs injured during violent argument on bus].)

Plaintiff’s discussion of Orr v. Pacific Southwest Airlines (1989) 208 Cal.App.3d 1467 (Orr) does not persuade us otherwise. The plaintiff in Orr bought a ticket at an airport and was directed by employees of defendant airline to proceed to her departure gate. She was injured while passing through an airport security checkpoint, before she arrived at the departure gate. (Id. at pp. 1469–1470.) While recognizing that the heightened duty of care may apply both before and after a passenger boards the “ ‘vehicle of carriage’ ” (id. at pp. 1472–1473, citing, inter alia, Sanchez, supra, 116 Cal.App. at p. 396, Lagomarsino, supra, 69 Cal.App.2d at p. 396, and Grier, supra, 62 Cal.App.2d at p. 310), the court concluded the airline was not yet subject to that standard at the security checkpoint: the airline had not assumed responsibility for conducting the plaintiff to the point of departure and had not restricted her mobility; the location was not under the airline’s exclusive control; and, although she had just bought a ticket, she had not yet been accepted on the airplane for carriage. (Orr, at pp. 1473–1474.) These facts did not show the injury occurred while the plaintiff was “wholly within defendant’s charge in actual progress upon her journey,” or within a “sphere of activity by defendants in a takeoff area reasonably constituting a mobile or animated hazard to passengers incident to the journey itself.” (Id. at p. 1474.)

Plaintiff argues that, unlike the plaintiff in Orr, she had “ ‘surrendered’ ” her ticket when she put it in the fare gate and entered the station, and the platform was under BART’s exclusive control. But we do not find these differences dispositive. The cases we have already discussed establish that merely standing on a BART platform waiting for a train to arrive does not establish that the carrier, before it has taken affirmative steps to accept a passenger onto a train, has a heightened duty to protect that prospective passenger from risks that are not incident to the journey itself.

Finally, plaintiff has suggested no manner in which she could amend her complaint to state a cause of action. In the circumstances, the trial court did not abuse its discretion in denying her leave to amend her complaint.

DISPOSITION

The judgment is affirmed.

 

_________________________

TUCHER, J.

WE CONCUR:

_________________________

STREETER, Acting P. J.

_________________________

BROWN, J.

Cissney v. Bay Area Rapid Transit District (A157021)