(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/personal injury case and its proceedings.)
The California legislature intended the definition of common carrier to be broad. Absent a specific exclusion from the statute, amusement park rides fall within this realm. Thus, the Dinosaur Attraction is likewise a common carrier for which Universal Theme Park owes a duty to use the utmost care and diligence to its guests. This duty is imposed upon them by Civil Code §2100.
Additionally, a California court upheld common carrier liability against a ski lift operator. Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal. App. 4th 1499. That court also stated that had the legislature intended to exempt chair-lift operators from common carrier status for the purpose of tort liability, it easily could have amended Civil Code §2168 to accomplish this objective. Id. at 1514. Ski-lift operators were not exempted from §2168, nor were amusement park operators. Until the legislature imposes this limitation, these entities can be subject to common carrier liability as long as they meet the requirements mentioned above.
MORE CASE LAW FAVORS PLAINTIFF’S POSITION THAT AMUSEMENT PARK RIDES SHOULD BE TREATED AS COMMON CARRIERS
As demonstrated by the court in Elmer, the split in authority whether amusement park rides and/or operators constitute common carriers tends to favor Plaintiff. Neubauer v. Disney, supra, identifies California cases which have further found attractions analogous to amusement park rides to be considered common carriers. For example, in McIntyre v. Smoke Tree Ranch Stables (1962) 205 Cal. App. 2nd 489 the court found common carrier status in a guided tour mule ride which carried sightseeing passengers over a designated route between fixed points for a round trip fare. As noted above, the court in Squaw Valley found common carrier status on a chair lift carrying skiers at a fixed rate from the bottom to the top of the ski run.
In Barr v. Venice Giant Dipper (1934) 138 Cal. App. 563, a case in which plaintiff brought suit for injuries sustained as a passenger on a miniature scenic railway, a California Appellate Court held that There was no error in the instructions to the jury charging appellant with the utmost care and diligence of a common carrier.
Additionally, in Kohl v. Disney (1962) 201 Cal. App. 2nd 780, a case involving passengers injured while riding the horse drawn Surrey With The Fringe On Top amusement ride, the court without explanation stated, “In the instant case, because of the passenger-carrier relationship between the parties, the duty imposed upon the defendant was to exercise the utmost care and diligence ….” (See Part 8 of 10.)
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