Brown v. New Orleans Public Service, Inc., 376 So. 2d 176

Brown v. New Orleans Public Service, Inc.

376 So. 2d 176 | La. Ct. App. | 1979

Concurrence Opinion

LEMMON, Judge,

concurring.

From the duty-risk approach to causation, plaintiffs arguably have proved that the carrier’s failure to have a conductor or second employee at the rear of the streetcar was a cause-in-fact of the accident — that is, by showing that, more probably than not, the high school student would not have pulled on and broken the copper air line, which precipitated the panic, if there were a conductor in the rear as there used to be under the two-man system of operation.

*178Nevertheless, establishing cause-in-fact does not impose liability. Hill v. Lundin & Assoc., Inc., 260 La. 542, 256 So.2d 620 (1972). Plaintiffs must further show that the omission (or the act), which was a cause-in-fact of the accident, was one which created such an unreasonable risk of harm to others under the particular circumstances that a reciprocal duty was imposed on the defendant to act (or not to act).

The evidence in this case merely showed that the carrier at one time used two employees to operate streetcars.1 While it might be inferred that an employee in the rear may have stopped the student’s smoking and throwing old transfers out the window, no evidence in this record raises an inference that the absence of such an employee created such an unreasonable risk of harm to passengers that a duty should be imposed on the carrier to place an employee in the rear or be liable for damages caused by horseplay of fellow passengers. Furthermore, there is no ease of association between a rule which would require an employee in the rear and the particular damages incurred in this case.

. Defendants argue that the advent of exact change boxes and automatic air controlled doors eliminated the need for the employee near the rear door.

Lead Opinion

REDMANN, Judge.

When a high school student on the rear of a crowded streetcar deliberately broke a copper air line causing a loud noise, plaintiffs were injured in the rush to leave the streetcar. The trial judge found the transit company negligent in not providing a conductor (guard) at the rear of the streetcar. The transit company appeals.

We have previously ruled that the transit company need not provide a guard (or the equivalent) on each bus to protect passengers against criminal activity; Higgins v. New Orleans Pub. Serv., La.App. 4 Cir. 1977, 347 So.2d 944. We surely do not disagree with the trial judge that it would be reasonable policy to require guards on public transit vehicles, like those who “rode shotgun” on the stagecoaches a century ago. But we deem such a policy a business or legislative policy. Perhaps patronage would increase and it would be a wise business move to incur the extra salaries. And surely it could be a reasonable rule for the legislature to impose; it appears to us preferable to spread the risk of loss from injury over all riders by a modest fare increase, rather than to let it all be borne by the hapless few individual victims. But we remain of the opinion that the present law does not require a public transit company to provide guards to protect passengers from their fellow-passengers.1

Reversed; suits dismissed.

LEMMON, J., concurs and assigns reasons.

. Our ruling that the transit company breached no duty owed to plaintiffs obviates decision of other serious questions. Did not plaintiffs’ granting a release to the deliberate vandal also inescapably release the transit company, whose only arguable fault was the failure to detect and prevent the vandalism? Would not the transit company’s liability be only secondary and vicarious, entitling it to indemnity (full reimbursement) against the vandal? Does not plaintiffs’ defeating of the transit company’s right of reimbursement against the vandal by releasing the vandal discharge the transit company? See Williams v. Marionneaux, 1960, 240 La. 713, 124 So.2d 919.