Sacramento Family Files Suit For Wrongful Death At Theme Park, Part 9 of 10

(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.)

Additionally, the California Supreme Court addressed this very issue in Smith v. O’Donnell (1932) 215 Cal. 714, an airplane collision case. In Smith, the California Supreme Court held that an airplane sightseeing ride over the ocean beginning and ending at the Long Beach Airport should have common carrier liability imposed regardless of the departure and arrival having the same location.

Further, it would be unsound that two passengers seated side- by-side on a tour bus who might have been injured during the carriage would be entitled to different standards of care depending of where each departed. If defendants’ argument is followed, a passenger who exists a tour bus before returning to the place of departure would be entitled to a higher standard of care, while the passenger who stayed on to return to the original point of departure would be, by virtue of the fact that he started and ended up at the same place, entitled to a lower standard of care.


Defendants argue against the application of common carrier status to the Dinosaur Attraction on the basis that carriage on the ride is sought for entertainment rather than transportation purposes. However, the subjective intent of a passenger is not determinative of the level of care that should attach to a carrier. The court in Squaw Valley upheld common carrier liability against a ski-lift operator irrespective of the fact that undoubtedly people go to ski resorts for entertainment and thrills.

Additionally, the California Supreme Court in Smith, supra, citing to O’Callaghan v. Dellwood Park Co. (1909) 242 Ill. 336, addressed this issue as well:

Why is not this rule (the rule of liability applying to common carriers) applicable to those operated cars upon a scenic railway such as the one in question here? The passengers carrier therein are subject to great risk to life and limb. The steep inclines, sharp curves, and great speed necessarily are sources of peril. The argument of appellant that the character of the scenic railway was, of itself, notice of the danger to its passengers, that its presence and operation involved no danger to those who kept away from it; that in this regard it differed from steam and electric railways or passenger elevators in buildings; and that therefore such railways should not be a common carrier – does not appeal to us. Should the motive which causes a person to take passage make any difference as to the degree of responsibility with which the carrier is charged? Passenger elevators are frequently operated in buildings in order to convey persons to some vantage point where they can overlook a great city, or some other object of interest, and trips on electric cars are often made solely for pleasure…. We think not only by fair analogy, but, on reason and sound public policy, appellant should be held to the same degree of responsibility in the management of the railway in question as a common carrier.

Further, as demonstrated above, the court in Elmer was not swayed by the fact that the boat ride was designed solely for the purpose of providing an exciting and fun-packed ride. The fact that rides provide thrills and excitement are incidental. Passengers on trains and planes may experience similar excitement simply from the mobility of the vessel. To disallow recovery under common carrier liability simply because the passenger had fun is irrational and improper. (See Part 10 of 10.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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