IN THE SUPREME COURT OF TEXAS
                                            ════════════
                                              NO. 18-0458
                                            ════════════

                          VIA METROPOLITAN TRANSIT, PETITIONER,
                                                        v.


                                     CURTIS MECK, RESPONDENT
   ════════════════════════════════════════════════════
                     ON PETITION FOR REVIEW FROM THE
             COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS
   ════════════════════════════════════════════════════


       CHIEF JUSTICE HECHT, joined by JUSTICE GUZMAN, JUSTICE DEVINE, and JUSTICE BLAND,
concurring.


        The common law rule that common carriers owe their passengers a high degree of care

“that would be exercised by a very cautious and prudent person under the same or similar

circumstances”1 is an anachronism that Texas should abandon, as other courts 2 and the




        1
         Speed Boat Leasing, Inc. v. Elmer, 

 (Tex. 2003) (per curiam) (quoting Dallas Ry. &
Terminal Co. v. Travis, 

 (Tex. 1935)).
        2
           Nunez v. Prof’l Transit Mgmt. of Tucson, Inc., 

 (Ariz. 2012); Bethel v. N.Y. City
Transit Auth., 

 (N.Y. 1998); Sebastian v. D.C., 

, 962 (D.C. 1994); Frederick v.
City of Detroit, Dep’t of St. Rys., 

 (Mich. 1963); Union Traction Co. of Ind. v. Berry, 

 (Ind. 1919).
Restatement have.3 The rule was widely adopted in the United States in the 19th century during

the early days of motorized public transportation, largely regarded as “ultrahazardous”. 4 The

rule’s rationale reflects its historical context. In 1887, in a case involving a street railway that ran

over a 19-month-old child on its tracks, this Court wrote that “a carrier of passengers is bound to

exercise a high degree of care” and “the highest degree of diligence” because of “the hazardous

character of the business, and the fact that human life is imperiled by it.” 5 Much has changed.

The U.S. Department of Transportation reports that in 2017, transit riders made 10.1 billion trips 6

with 241 fatalities7—about one death every 42 million trips.

         But the rule’s analytical problems are the principal reason to abandon it. As a general

rule, “[a] person acts negligently if the person does not exercise reasonable care under all the

circumstances.”8 But also, “[a]n actor in a special relationship with another owes the other a duty



         3
         RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 40(a) (2010); RESTATEMENT (SECOND) OF
TORTS § 314A(1) (1965).
         4
              See Nunez, 

; Bethel, 

 (noting the “primitive safety features” of steam
railroads).
         5
           Galveston City Ry. Co. v. Hewitt, 

, 707–708 (Tex. 1887) (stating the duty of common carriers
“springs” from the “hazardous character of the [transportation] business, and the fact that human life is imperiled by
it”).
         6
            U.S. DEP’T. OF TRANSP. BUREAU OF TRANSP. STATISTICS, TRANSPORTATION STATISTICS ANNUAL REPORT
1-1 (2018), https://www.bts.dot.gov/sites/bts.dot.gov/files/docs/browse-statistical-products-and-data/transportation-
statistics-annual-reports/Preliminary-TSAR-Full-2018-a.pdf.
         7
              

 at 6–9.
         8
          RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 3; RESTATEMENT (SECOND) OF TORTS § 283
(“Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a
reasonable man under like circumstances.”); Union Pac. R.R. Co. v. Nami, 

 (Tex. 2016)
(“[N]egligence means the failure to use ordinary care—failing to do what a reasonable person like the defendant
would have done under the same or similar circumstances—to protect against unreasonable risk of harm.”).


                                                                2
of reasonable care with regard to risks that arise within the scope of the relationship.” 9 One such

relationship is “a common carrier with its passengers”. 10 Unquestionably, a common carrier’s

duty of reasonable care to its passengers is not the same as that of a private driver taking a friend

on an errand. The risks that arise in a common carrier’s operation inform its duty. A public

transit operator must act with the reasonable care such operators observe. But to say that the

reasonable care required of a common carrier is “higher” than the reasonable care required of

others transporting passengers is a useless and potentially misleading abstraction.

        Physicians must exercise ordinary care in the circumstances. 11 “The circumstances to be

considered include, but are not limited to, the expertise of and means available to the physician-

-defendant, the health of the patient, and the state of medical knowledge.” 12 “[T]he traditional

reasonable-person standard [takes] into account both the knowledge and skills of an ordinary

person and ‘such superior attention, perception, memory, knowledge, intelligence, and judgment

as the actor himself has.’”13 The standard applies differently to a neurosurgeon performing brain

surgery than to a clinician treating scrapes and bruises. But it is the same standard. It is not

higher for one or lower for the other. For both, it is reasonable care under the circumstances.


        9
         RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 40(a); RESTATEMENT (SECOND) OF TORTS §
314A; see also Pagayon v. Exxon Mobil Corp., 

, 504 (Tex. 2017) (“a special relationship may
sometimes give rise to a duty to aid or protect others”).
        10
             RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 40(a); RESTATEMENT (SECOND) OF TORTS §
314A(1).
        11
             Jackson v. Axelrad, 

 (Tex. 2007).
        12
             Hood v. Phillips, 

 (Tex. 1977).
        13
             Jackson, 221 S.W.2d at 655–656 (quoting RESTATEMENT (SECOND) OF TORTS § 289).


                                                              3
        “The [reasonable-care] standard provides sufficient flexibility, and leeway, to permit due

allowance to be made . . . for all of the particular circumstances of the case which may

reasonably affect the conduct required.”14 In other words, the ordinary negligence standard

“necessarily takes into account” all the circumstances, which include, in the case of common

carriers, any dangers intrinsic to public transportation and the passenger’s “dependence upon the

carrier”.15

        Texas courts have uniformly rejected referring to reasonable care for special risks as a

higher duty of care. In West Texas Utilities v. Renner, the Texas Commission of Appeals held

that “ordinary care” accurately described a utility’s duty to maintain a safe workplace even when

the risks to employees were great.16

        In applying the term “ordinary care” to a given state of facts, Judge Sharp, of the
        Commission of Appeals, in Dallas Railway & Terminal Co. v. Bankston, 

, said the meaning of the common-law rule of ordinary care is elastic
        enough to meet all emergencies; the amount of care depends upon the exigency
        confronted. It may require one thing to be done at one place, and something else
        at another place; the degree of care must be such as a person of ordinary prudence
        would exercise under like circumstances.17

Citing Renner, the court in Wendell v. Central Power & Light Co. noted that while a utility

company’s duty of care is “commensurate with the danger” presented by its operations, that




        14
             RESTATEMENT (SECOND) OF TORTS § 283 cmt. c.
        15
             Nunez v. Prof’l Transit Mgmt. of Tucson, Inc., 

 (Ariz. 2012).
        16
             

, 453–454 (Tex. Comm’n App. 1932, holding approved).
        17
             

 at 454–455.


                                                               4
“standard does not impose a higher duty of care, it merely more fully defines what is ordinary

care under the facts presented.”18

        In Prather v. Brandt, the court rejected the argument that a person using a firearm should

be held to a “high degree of care”.19 The court observed: “There are few cases in Texas

concerning the application of a high degree of care to a negligence cause of action. The courts

tend to hold the definition on ordinary care is sufficient for the vast majority of negligence

cases.”20 The court cited Winborn v. Mayo, which explained at greater length:

        It is often said that a very high degree of care is required from all persons using
        firearms in the immediate vicinity of others, regardless of how lawful or innocent
        such use may be, or that more than ordinary care to prevent injury to others is
        required. Some courts refer to the degree of care required as a high degree of care;
        others say that the utmost or highest degree of care must be used to the end that
        harm may not come to others. More often the requisite degree of care is defined as
        such care as is commensurate with the dangerous nature of the firearm. The
        modern tendency of the courts is to apply the general rules of negligence where
        injury or death has been inflicted by missiles from a firearm. It is sometimes said
        that the rules of law governing actions for injury caused by the discharge of
        firearms are not different from the rules governing actions for any injury claimed
        to have been inflicted by the defendant. Here, as in other cases, the test of liability
        of the defendant is whether in what he did he failed to exercise reasonable or
        ordinary care. As in other cases, the reasonable care which persons using firearms
        are bound to take in order to avoid injury to others is a care proportionate to the
        probability of injury.21


        18
             

 (Tex. App.—Corpus Christi–Edinburg 1984, writ ref’d n.r.e.); accord First
Assembly of God, Inc. v. Tex. Utils. Elec. Co., 

, 491–492 (Tex. App.—Dallas 2001, no pet.); Tex.
Utils. Elec. Co. Through Tex. Power & Light Div. v. Gold Kist, Inc., 

 (Tex. App.—Eastland
1991), rev’d on other grounds, 

 (Tex. 1992).
        19
             

 (Tex. App.—Houston [1st Dist.] 1998, pet. denied).
        20
             

        21
             

 (Tex. Civ. App.—San Antonio 1968, no writ) (citations omitted).


                                                             5
In Anderson v. Market St. Developers, Ltd., the court recognized the peculiar dangers associated

with elevators and escalators but refused to distinguish between ordinary care and a high degree

of care.22 Rather, the court stated, “the common-law rule of ordinary care is elastic enough to

meet all emergencies, and the amount of care depends upon the exigency confronted.” 23

       In Mount Pleasant Independent School District v. Estate of Lindburg, we refused to hold

school bus operators to the heightened standard of care applicable to common carriers because

schools are not in the business of transporting passengers. 24 Student transportation, we said, was

incidental to school operations. But we certainly did not suggest that operators were not required

to take reasonable care to avoid the risks to child safety peculiar to school bus operations. It

would make no sense to hold one passenger carrier to a higher standard of care than another,

especially when the other’s passengers are children, merely because one is being paid.

       The point is that the exceptional-care standard is unnecessary at best, and misleading at

worst. It suggests that common carriers are to “exercise all the care, skill, and diligence of which

the human mind can conceive”25 and invites the jury “to scrutinize the carrier’s conduct in an

endeavor to find it defective”.26 Because a “very cautious, competent, and prudent person”

exercising a high degree of care will rarely, if ever, cause an accident or injury, the exceptional-

care standard makes the carrier’s liability all but a foregone conclusion. We have said that


       22
            

, 779 n.1 (Tex. App.—Eastland 1997, writ denied).
       23
            

       24
            

 (Tex. 1989).
       25
            Nunez v. Prof’l Transit Mgmt. of Tucson, Inc., 

 (Ariz. 2012).


                                                              6
“Texas public transportation companies are not insurers of the safety of their passengers.” 27 Yet

“by requiring that a carrier exercise more care than that reasonable under the circumstances . . .

the [exceptional-care standard] approaches the insurance standard, as virtually every accident

could be avoided if the carrier acted differently in some way.”28 Because the exceptional-care

standard is likely to confuse jurors and improperly skew their decisions, it should be abandoned

in favor of the reasonable care standard in traditional negligence law.29

        As the Court recounts, in this case, Meck repeatedly stated throughout the trial that VIA

owed a high duty of care. The evidence presented showed what a transit driver would do in the

same circumstances. VIA objected to instructing the jury that negligence for VIA meant the

failure to use a high duty of care. But assessing the entire record, the Court seems correct in

concluding that an instruction that VIA owed reasonable care in the circumstances would not

have changed the outcome.30

                                        *        *        *        *        *

        Common carriers should be held to the duty of reasonable care under the circumstances,

the standard generally applicable. If a high duty of care was warranted in the 19th century, it is


        26
             Bethel v. N.Y. City Transit Auth., 

 (N.Y. 1998).
        27
             City of Dallas v. Jackson, 

 (Tex. 1970).
        28
             Nunez, 

.
        29
          See 

 (“[A]n attempt to explain the common carrier doctrine to a jury would be riddled with the
prospect of confusion. . . . To hold that a common carrier must exert more than reasonable care under the
circumstances not only serves no useful purpose; it is a hard concept to make sense of and one very likely to be
misunderstood.” (cleaned up)).
        30
             Ante at 15.


                                                               7
no longer. The standard lacks meaning and is potentially prejudicial. Texas should join other

states and the Restatement in abandoning it.



                                               Nathan L. Hecht
                                               Chief Justice
Opinion delivered: June 26, 2020




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