Sharpe v. Peter Pan Bus Lines, Inc.
Sharpe v. Peter Pan Bus Lines, Inc.
Opinion of the Court
On Sunday morning, February 22,1981, Sharon Lee Glynn, a sixteen year old who had purchased a bus ticket to go home after visiting a friend in Westfield, was waiting in the Springfield bus terminal to board a Peter Pan bus. Without warning and without provocation, one Patrick Werner, a stran
In this action the jury found by a special verdict that each defendant was negligent and that its negligence was aproxímate cause of Sharon’s death. They awarded damages for wrongful death and for conscious suffering. We transferred the appeal of the defendant bus company (Peter Pan) and the defendant bus terminal (Springfield) to this court. We affirm the judgment.
The defendants contend that the judge erred in denying their motions for directed verdicts. Peter Pan argues that it owed no duty at all to Sharon when she was sitting in the terminal and that, in any event, at .the time of the attack, it did not owe her the high duty of care owed by a common carrier. Peter Pan did not raise by its motion for a directed verdict the point that it had no duty to Sharon at the time she was attacked. Nor did Peter Pan make the argument orally in support of its motion. We do not, therefore, have to pass on the claim that Peter Pan owed Sharon no duty whatever. In any event, the belated argument lacks merit.
We turn then to the issue whether the evidence presented a case for the jury. Our inquiry first concerns the question whether either defendant failed to act reasonably in the circumstances to provide the utmost care and diligence to protect patrons of the terminal. The second issue, by far the harder question of the two to answer, is whether any breach of duty may have been a reasonably foreseeable cause of the attack on Sharon.
We have little hesitancy in ruling that the evidence warranted a finding that each defendant failed to fulfil its high duty of care concerning security in the terminal. The jury would have been warranted in finding that the terminal was in a rundown section of the city. Homeless people and drunks frequented the area. The terminal was in an active area for crimes against the person, one characterized by a Springfield police captain as an area of high criminal activity. There had been robberies in the terminal’s restrooms and assaults in the terminal. Evidence concerning the neighborhood of a bus terminal and the people who frequent it is relevant to a case of this type. See Wesley v. Greyhound Lines, Inc., 47 N.C. App. 680, 685 (1980). The terminal management called the police every week because of a security or other problem. The terminal had no uniformed security person working for it. the defendants were aware of a need to have security present in some form but had no security plan. Because of security problems, the management of the terminal had asked the local police to make periodic patrols. Sunday morning was a time of substantial activity in the terminal; as many as fifteen buses would arrive at or leave the terminal each hour.
The presence of uniformed police or security personnel provides a deterrent effect. Lay people would have a sense that this is true. In this case, an expert on security procedures testified that uniformed police or security officers are the best deterrent to crime that one could have and that a security officer could have been placed effectively in the terminal. The jury could reasonably have concluded that as a deterrent to crime the defendants had a duty to provide uniformed security personnel in the terminal at the time of the attack.
The question, of course, is not simply whether crime in general might have been deterred by a police presence, but whether the jury would have been warranted in finding that it was more probable than not that sudden, unprovoked attacks, such as Werner’s attack on Sharon, could have been prevented. See Mullins v. Pine Manor College, 389 Mass. 47, 58 (1983). The jury could have found that Wemer was concerned about not being caught. He fled the scene, hid the knife, tried to elude the police, and was found hiding in the vicinity. See Commonwealth v. Werner, 16 Mass. App. Ct. 686, 687-688 (1983). The evidence warranted a finding that Wemer probably would have been deterred from attacking Sharon if a uniformed security guard had been present. The plaintiff’s expert answered responsively to a question on cross-examination that, if a uniformed security guard had been there, the attack prob
Judgment affirmed.
A copy of the Appeals Court opinion was admitted in evidence without objection. Werner argued unsuccessfully on appeal that the evidence required a finding of not guilty because it showed that he lacked criminal responsibility under the standard set forth in Commonwealth v. McHoul, 352 Mass. 544, 546-547 (1967).
Our cases have long extended passenger status, and thus have imposed a duty of care on a common carrier, to people on its premises for the purposes of transportation. See MacSwan v. Metropolitan Transit Auth., 340 Mass. 499, 500-501 (1960) (one who had traveled on train and was leaving station was still a passenger); Gray v. Boston & Me. R.R., 168 Mass. 20, 24 (1897) (one who entered station to travel on train was a passenger); Warren v. Fitchburg R.R., 8 Allen 227, 231-232 (1864) (one who had purchased ticket and was waiting in station was a passenger).
The fact that Springfield operated the terminal does not exonerate Peter Pan. A carrier owes a duty to a passenger waiting in a station which the carrier is using voluntarily, even if the station is operated by another company. See Kuhlen v. Boston & N. St. Ry., 193 Mass. 341, 350 (1907). Cf.
The evidence might also meet the test ordinarily applied to a landowner. If it did, for directed verdict purposes, the question of the standard to which Peter Pan should be held would become irrelevant. See Silver v. New York Cent. R.R., 329 Mass. 14, 17 (1952).
Peter Pan’s concession at trial that the stricter level of care applied to it makes consideration of that question unnecessary. The concession seems to have been correct under the law of the Commonwealth. In this century, our cases have not applied a standard of the utmost care and diligence, or the highest degree of care consistent with proper management of the business, as to claims based on the alleged negligent maintenance of a carrier’s premises, such as in slip and fall cases. See Reardon v. Boston Elevated Ry., 311 Mass. 228, 229 (1942) (duty to keep premises in a reasonably safe condition); Connolly v. Boston Elevated Ry., 309 Mass. 177, 179 (1941) (same); Klein v. Boston Elevated Ry., 293 Mass. 238, 240 (1936) (reasonably safe and suitable condition); Ward v. Boston Terminal Co., 286 Mass. 517, 518 (1934) (terminal company held to duty of exercising ordinary care toward invitee who slipped and fell). Contrast Jordan v. New York, N.H., & H. R.R., 165 Mass. 346, 347 (1896) (carrier owed passenger highest degree of care, consistent with proper management of business, to maintain premises in safe condition). In cases involving injuries caused by assaults or by the violence of other passengers, however, our cases have held
Peter Pan stipulated that it was a common carrier. Springfield would not so stipulate. The status of Springfield was a question of fact for the jury. The judge rightly put to the jury alternative standards of care to be applied depending on whether or not they found that Springfield was a common carrier, that is, whether its business was “principally concerned with or necessarily connected to the transportation of passengers for hire.”
During a colloquy at the bench on the second day of trial the judge stated his view that a carrier has “a rather high standard of duty to protect those who use its facilities.” Although put on notice of this view, the defendants never took steps to preserve the judge’s conclusion for appellate consideration. In fact, the defendants appear to have accepted that principle of law as applicable to them if they were common carriers.
We do not discuss objections to the judge’s charge on causation and foreseeability not raised at trial.
The judge told the jury to consider whether the defendants could have guarded against the act of violence committed in the terminal. He also instructed them that, if they found that a defendant negligently failed to provide adequate security, they would be warranted in finding that a defendant’ s negligence was the proximate cause of Sharon’s injury if proper security would have been designed to prevent harm of the same general character as that which occurred to Sharon. These instructions adequately put to the jury the question whether the harm which occurred was within the risk created by any defendant’s negligent failure to provide security. These instructions thus covered the reasonable aspects of the defendants’ concern that the judge instruct that the plaintiff must prove that the attack was preventable. If the attack was not preventable, even if there had been a reasonable security presence at the terminal, then the harm to Sharon was not within the risk created by any negligent failure to provide security, or, as the judge put it, there would be no liability if the proper security would not have been designed to prevent harm of the character that occurred to Sharon.
Dissenting Opinion
(dissenting, with whom Nolan and O’Connor, JJ., join). The court today concludes that a causal connection exists between the unprovoked and inexplicable criminal act of a third person and the failure of the defendants to provide a uniformed security force inside the bus terminal where the attack occurred (emphasis mine). In order for liability to exist in these circumstances, as the court concedes, there must be a basis for a finding that the act causing the plaintiff’s injuries was within the reasonably foreseeable risks created by the defendant’s breach of duty. “The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct should have realized the likelihood that such a situation might be created thereby
The evidence as to notice consisted of two police reports. One involved complaints in 1977 of “winos” and derelicts sleeping in the station overnight and assaulting the employees when they were awakened between 5 and 5:30 a.m. The other involves a single individual, also a “wino,” who in 1978, was bothering people.
Moreover, the negligent act of failing to provide uniformed security personnel did not create the opportunity for the criminal act inflicted upon the plaintiff’s decedent. See Restatement (Second) of Torts § 448 (1965). The attack on Sharon occurred in broad daylight in a terminal full of people. Sharon sat with two friends, one of whom was a two-hundred-pound, six-foot tall young man. In such circumstances, the presence or absence of a uniformed security guard could have had little effect on whether the attack would or would not have occurred. One could speculate over a such a question. Perhaps a security guard would have intervened successfully in the attack, or perhaps he would have been at the other end of the waiting room. Possibly a uniformed security guard would have deterred the killer from entering the station. In all likelihood, since the killer was an ordinary traveler on his way through Massachusetts from Colorado, the presence of a security guard would have had no effect at all. The jury are entitled to draw reasonable inferences from the evidence. They are not entitled to base a verdict on conjecture. The question whether the defendants’ failure to employ a uniformed guard was the proximate cause of Sharon’s death may be resolved only through the exercise of conjecture. Therefore, it is a question not properly for the jury. See Northern Ry. v. Page, 274 U.S. 65, 72-73 (1927).
In the case of proximate cause, “ [tjhere is a decided tendency to leave every question to the bewildered jury, under some vague instruction which provides no effective guide.” W. Prosser & W. Keeton, Torts, supra at 319. This tendency cloaks the determination in the veil of a finding of fact. See id. at 274. It thereby inappropriately allows an appellate court to evade its duty to explicate the law — and the policy reasons behind the law — of proximate cause. Recent events reveal that the passenger bus trade does not enjoy the robust health and competition of some other areas of American commerce. See 53 Antitrust & Trade Regulation Report 87 (BNA, July 16, 1987) (merger of Greyhound and Trailways bus companies after failure of Trailways). See also In re Carey Transp., Inc., 50 B.R. 203 (Bkrtcy. 1985) (bankrupt bus company). For some, the bus is the only affordable method of travel. There exists a current tendency by some to find liability in every case, even in the absence of fault or where, as here, the fault of the defendants is unconnected to the acts which caused the plaintiff’s decedent’s injuries. This trend is justified on the theory of society’s interest in diffusing the costs of a plaintiff’s injuries. But, as we should all know by now, there is no free lunch. Here, the increased cost of insuring against such unforeseeable incidents will be borne by those who can least afford it — the bus-riding public. And when these costs are added to the price of a bus ticket, the result will be that a greater segment of working class Americans can no longer afford
In Mullins v. Pine Manor College, supra, we rejected the rule, in effect in some jurisdictions, that the plaintiff must introduce some evidence of prior criminal acts before liability may attach. However, we have never said that liability may be imposed without any showing that defendant could have foreseen the harm. In Mullins, the college’s own precautions against rapes on campus were taken as evidence that the college had notice. Id. at 55. Furthermore, this portion of the holding in Mullins was expressly limited to “the circumstances before us.” Id.
The plaintiff also introduced the testimony of a Springfield police officer that he considered the area around the bus station to be an “active” one regarding assaults and larcenies. However, the police officer could point to no specific incident; he gave only a general recollection of what he thought of the area. He produced no records of any murder ever having occurred previously at the bus station. In any event, this evidence is not relevant in the circumstances of this case, where the killer was an apparently nonthreatening fellow traveler from out-of-State rather than an undesirable denizen of the bus station’s allegedly unsavory surroundings.
If they could not deal with a problem themselves, they called the Springfield police.
Reference
- Full Case Name
- Alfred S. Sharpe, Administrator, vs. Peter Pan Bus Lines, Inc., & Another
- Cited By
- 38 cases
- Status
- Published