Leatherwood Motor Coach Tours Corp. v. Nathan

³⁷² BLOOM, Judge. Appellee, Sonya C. Nathan, fell and sustained bodily injuries while she was attempting to board a bus owned by appellant Leatherwood Motor Coach Tours Corp. (Leather-wood) at a bus stop established by appellant Washington Metropolitan Area Transit Authority (WMATA) along a State highway. Ms. Nathan’s suit in the Circuit Court for Prince George’s County against Leatherwood, WMATA, and the State Highway Administration (SHA) resulted in a jury verdict for $25,000 against all three defendants. The court thereafter granted SHA’s motion for judgment n.o.v. but denied similar motions filed by Leatherwood and WMA-TA, who now bring this appeal.

Since appellee’s recovery against appellant Leatherwood appears to have been based on a different theory than that supporting her recovery against WMATA, appellants do not raise identical issues. Leatherwood contends: 1. Plaintiff was not a passenger of Leatherwood at the time of the accident and was not entitled to an instruction on the heightened degree of care required in a , passenger/carrier relationship. 2. Assuming arguendo that a passenger/carrier relationship existed between Leatherwood and the plaintiff, Leatherwood had no duty to maintain the public bus stop area which was not under its ownership or control and, therefore, the trial court should have directed a verdict in Leatherwood’s favor since no breach of duty could be found. 3.

The trial court abused its discretion in allowing the case to go to the jury where there was insufficient evidence of notice of a dangerous condition which could be attributed to Leatherwood. 4. The trial court erred in failing to direct a verdict in Leatherwood’s favor because plaintiff had assumed the risk of her injuries. ³⁷³ 5. The trial court erred in not directing a verdict for Leatherwood because plaintiff was contributorily negligent as a matter of law. WMATA, in turn, asserts: 1.

The trial court erred in denying WMATA’s motions for summary judgment, directed verdict, and judgment n.o.v. because no duty of care extends to a prospective passenger of another carrier on land not owned or controlled by WMATA. A. WMATA has no liability as a common carrier where Nathan was not a WMATA bus passenger. B. WMATA has no duty as a landowner because it neither owns nor controls the ground around the bus stop signs. 2. Assuming arguendo that WMATA had a duty to maintain the bus stop area, Nathan failed to present sufficient evidence to show that WMATA was negligent. 3.

Assuming arguendo that WMATA had a duty in regard to maintenance of the shoulder, this duty cannot exceed that of the Highway Administration. 4. Nathan was contributorily negligent and assumed the risk as a matter of law since she knew of the bus stop conditions and failed to take adequate precautions. We believe the issues can be greatly simplified. The principal issue in the case is whether either of the appellants breached any duty owed by it to appellee.

The only basis for her claim being that she fell because the gravel surface made the bus stop an unsafe place to take on passengers, that issue can be restated: did the allegedly hazardous condition of the gravel surface at the bus stop involve any breach of duty by either or both appellants? One theory upon which appellee’s claim was based is that Leatherwood, because of its status as a common carrier, was obliged to exercise the highest degree of care for appellee’s safety and breached it by providing an unsafe place for her to board its bus. Indeed, the court, over ³⁷⁴ objection, instructed the jury as to the standard of care owed by a common carrier. The theory of liability as to WMATA was based upon appellee’s claimed status of business invitee, which, she asserted, imposed a duty with respect to the safety of the premises.

We shall reverse the judgment of the circuit court, holding that the court erred in denying appellants’ motions for judgment at the conclusion of the trial and also for judgment n.o.v. because there is no evidence of negligence, i.e., breach of duty owed by either appellant to appellee. It will not be necessary, therefore, for us to address the contentions that, as a matter of law, appellee was contributorily negligent and assumed the risk of her own injuries. Facts The injury to appellee occurred on Pennsylvania Avenue, near Donnell Drive and the Penn Mar Shopping Center in Forestville, Maryland. At that site, Pennsylvania Avenue is a macadam-surfaced highway with a narrow dirt and gravel shoulder, on which WMATA, with SHA approval, had erected a bus stop sign on a pole.

Appellee was a regular bus commuter from Forestville to her place of employment in Washington, D.C., and was quite familiar with the terrain and the gravel surface of the shoulder. Leatherwood buses, as well as WMATA Metro buses to Washington, stopped at that site to receive and discharge passengers. There was another WMATA bus stop across the street, and Leatherwood buses stopped at a location about three quarters of a mile away. Appellee preferred to commute on the Leatherwood bus rather than the WMATA Metro bus because the former made fewer stops.

In fact, she had used the Leatherwood bus to commute to work at least three or four times a week for a couple of months prior to the time she was injured. On 7 July 1983, appellee, along with several other people, waited at the bus stop. The Leatherwood bus stopped on the paved surface of the highway, near the shoulder. Six ³⁷⁵ people boarded the bus safely and without incident before appellee attempted to board.

As she grasped the handrail, she slipped on the gravel underfoot and fell, her face striking the step on the bus. Appellee, who weighed about 170 pounds at the time, was wearing shoes with high heels. Although she characterized the heels as “medium,” she also estimated their height at between two and one-half and three inches. She had previously experienced difficulty walking on the gravel surface while wearing those shoes.

I The scope of the duty owed by a common carrier to one of its passengers is well established. “A common carrier is not an insurer of the safety of its passengers, but is bound to employ the highest degree of care for their safety consistent with the nature of the undertaking.” Mass Transit Adm. v. Miller, 271 Md. 256, 259 , 315 A.2d 772 (1974). Appellee’s injuries were sustained before she had actually boarded the bus, and were attributable to the condition of the surface of the shoulder of the road at the place of boarding, rather than to any defect in the bus itself or any act by the driver after he stopped to permit passengers to board. The question, therefore, is: when did the relationship of carrier and passenger, with its attendant requirement of a heightened degree of care, arise? With respect to that issue, the court instructed the jury: A common carrier is someone who holds himself out to the public as offering to transport for hire persons which are brought to it as long as it has available space and there is no legal excuse for refusing to transport such persons.

A passenger is one who travels in a bus as a result of the contract with the carrier. A person becomes a passenger when, with the implied consent of the carrier, the person enters upon the bus, but actual entry upon the bus is not necessary to create a relationship of carrier and passenger in which one may ³⁷⁶ become a passenger. A common carrier of passengers, while not as an insurer of the safety of passengers, must employ the utmost care and diligence which human foresight can use. It is required to use the utmost degree of care, skill, and diligence in everything that concerns its passengers’ transportation but is extended further and requires the carrier to provide a safe means to enter and exit the bus.

This instruction, to which appellants duly excepted, appears to have been taken from the Maryland Pattern Jury Instructions, which emphasize that the duty of the carrier to the passenger extends beyond the carriage itself, to its station, platform, waiting room, or other areas provided by it for its passengers. The pattern instruction with respect to when the passenger status begins is based upon several Maryland cases which hold that the relationship between carrier and passenger is not confined to the duration of the trip. The heightened duty of care owed by the carrier was held to apply to a passenger who, after paying his fare, was injured by an unruly crowd while attempting to board a car at a prepayment station maintained by the carrier. Dilley v. Baltimore Transit Co., 183 Md. 557 , 39 A.2d 469 (1944).

In Philadelphia, Baltimore and Washington Railroad Co. v. Green, 110 Md. 32 , 71 A. 986 (1909), one who was waiting at the railroad station for a train he intended to board when he was assaulted by an agent of the carrier was held to be a passenger at the time of the tort. On the other hand, one who got to the station after his train had left and was injured while attempting to board a moving train not in passenger service was not a passenger. Damico v. Washington, Baltimore and Annapolis Electric Railroad Co., 158 Md. 470 , 148 A. 821 (1930). Once the status of passenger has begun, it continues until the journey is completed and the passenger is safely discharged.

Thus, .when a taxi cab door closed on the coat of an alighting passenger and the driver put the cab in motion, it was held that the ³⁷⁷ relationship of carrier and passenger was still in effect. Jacobson v. Julian, 246 Md. 549 , 229 A.2d 108 (1967). The cases cited above in which a carrier has been held to the degree of care due to a passenger or prospective passenger who has not yet boarded the conveyance have all involved injuries occurring on premises owned, controlled, or maintained by the carrier. It is not unreasonable to say that the relationship of carrier and passenger begins when one, having paid a fare to be transported from one place to another or, with the intention to do so, enters a station or upon a platform or other premises maintained by the carrier as a place for passengers to wait until they board the conveyance.

We are aware of no Maryland case, however, holding that a common carrier owes such a heightened degree of care to a prospective passenger on property not owned, controlled, or maintained by the carrier. Indeed, Maryland case law suggests to the contrary. In Adams v. Baltimore Transit Co., 203 Md. 295 , 100 A.2d 781 (1954), the plaintiff, a passenger of the Baltimore Transit Company, sustained injuries after he left the transit company streetcar at a waiting station jointly maintained by the transit company and the Baltimore and Ohio Railroad Company on a strip of land owned by the railroad company. Maintenance of the station was for the convenience of transit company passengers who worked at Maryland Dry-dock.

To get from the waiting station to his place of work, the plaintiff had to traverse Sun Street, a public way, across which the railroad tracks ran. The railroad company habitually parked its cars blocking Sun Street and Drydock’s employees used to crawl under or climb over the coupling between railroad cars in order to get to work. Plaintiff was in the process of performing such a maneuver when the train was suddenly, unexpectedly, and without warning started in motion. The plaintiff, having settled with the railroad company, attempted to recover from the Transit Company and the City of Baltimore.

The theory of the case against the Transit Company was that it violated the heightened standard of duty it owed to its passenger when it left ³⁷⁸ him off at an unsafe place. The court held that there was nothing unsafe about