No Longer the Highest Degree of Confusion: Arizona Supreme Court Strikes Down the Common Carrier Doctrine

The Arizona Supreme Court’s most recent decision, Nunez v. Professional Transit Management, addressed a long-standing confusion over the common carrier doctrine in Arizona.¹ After decades of ambiguous case law, the court held that the general negligence standard—rather than a heightened standard—applies to common carriers in the state. Now, litigants must only argue the existence of “reasonable care under all the circumstances,”² as opposed to “the highest degree of care practicable under the circumstances.”³

In Nunez, Linda Brown, a wheelchair-bound passenger, boarded a SunTran city bus in Tucson. Grace Zoellner, the bus driver, secured Brown’s wheelchair to the bus, but when Zoellner braked abruptly to avoid a collision, Brown was thrown from her wheelchair and sustained serious injuries. Brown subsequently sued Zoellner and SunTran for negligence.⁴

At trial, SunTran asked the judge to give the jury a standard negligence instruction, but the judge denied the request. Instead, the judge instructed the jury that “the Defendants … as common carriers of passengers for hire, are bound to exercise the highest degree of care practicable under the circumstances.” ⁵ The jury found in Brown’s favor and the court of appeals affirmed.

On appeal to the Arizona Supreme Court, SunTran argued that the heightened standard for common carriers—commonly known as the “common carrier doctrine”—should not be applied in Arizona. The court agreed, explaining first that the basis for applying the heightened standard is no longer valid. The common carrier doctrine was originally applied because passengers needed to be protected from the “hazardous conditions that were frequently encountered in the early days of public transportation.”⁶ But because those dangers no longer exist, the common carrier doctrine is inapplicable.

The court also explained that although past decisions have repeated the common carrier doctrine, Arizona courts have not entirely embraced the heightened standard. For example, the Arizona Supreme Court in Atchison, Topeka & Santa Fe Ry. Co. v. France⁷ agreed that the trial court gave the correct jury instruction that the railroad defendant was required to “exercise the highest degree of care for the safety of its passengers,”⁸ but then reversed the judgment because the trial court failed to give the standard negligence instruction.⁹ The court also noted that years after Atchison, the court of appeals upheld a “trial court’s refusal to apply the common carrier doctrine.”¹⁰

In *Nunez*, Brown argued that the common carrier doctrine should be applied because passengers trust that common carriers will ensure their safety and that a majority of other jurisdictions require a heightened standard of care. The court rejected those arguments, reasoning that the standard of reasonable care can be modified based on individual circumstances and that “[i]t is difficult to see why [Arizona] should impose upon the common carrier a duty to do more than a reasonable carrier would do under the facts of each particular case.”¹¹ Furthermore, although Arizona is not bound by decisions in other jurisdictions, many other courts—namely the New York Court of Appeals—have rejected the common carrier doctrine. The court agreed with the New York court that explaining the common carrier doctrine to a jury could be confusing to jurors because “the dividing line between the exercise of reasonable care under all the circumstances and the common carrier doctrine is … practically and intellectually elusive.”¹²

The court also rejected Brown’s final argument that the court must continue to apply the common carrier doctrine lest it violate the “anti-abrogation” clause of the Arizona Constitution. The court remanded the case to the superior court for a new trial, in which Brown can seek damages for standard negligence.

After years of confusing case law, the Arizona Supreme Court laid the negligence standard for public transportation carriers to rest by rejecting the common carrier doctrine. The decision simplifies jury instructions to reduce juror confusion and Arizona tort law by applying the same negligence standard to common carriers as is applicable to many other industries.

**See also** Matt Milner’s post, Highest Degree of Confusion: The Case Against the Common Carrier Doctrine.

1: No. CV-11-0186-PR (Ariz. Feb 23, 2012).
2: Id. at ¶ 1.
3: Id. at ¶ 4.
4: Id. at ¶ 2–3.
5: Id. at ¶ 4.
6: Id. at ¶ 9.
7: 94 P.2d 434 (Ariz. 1939).
8: Id. at 436.
9: Id.
10: Lowry v. Montgomery Kone, Inc., 42 P.3d 621, 626 (Ariz. Ct. App. 2002).
11: Nunez, No. CV-11-0186-PR at ¶ 19.
12: Id. at ¶ 22.