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Filed 8/28/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

ALICE B. CHURCHMAN,

Plaintiff and Appellant,

v.

BAY AREA RAPID TRANSIT 

DISTRICT,

Defendant and Respondent.

 A151698

 (Alameda County

 Super. Ct. No. RG16829239)

In a crowded, noisy train station, a passenger loses her balance, falls, and injures 

herself. The main issue we are asked to decide is whether the train operator owed the 

passenger a heighted duty of care under Civil Code section 2100, which imposes on 

common carriers a duty to “use the utmost care and diligence for [passengers’] safe 

carriage.” We hold that section 2100 does not apply to minor, commonplace hazards in a 

train station. Moreover, because the train operator here is a public agency, it is not liable 

for personal injuries in the absence of a statute providing for liability. (Gov. Code, § 

815.) We conclude there is no statutory basis for liability and affirm the trial court’s 

dismissal of the action.

BACKGROUND

In her third amended complaint, Alice Churchman alleged she bought a train ticket 

at a station operated by the Bay Area Rapid Transit District (District). She passed 

through turnstiles and went to the boarding platform. Several factors combined to create 

a confusing situation on the platform: the “opening and closing of doors on opposite side 

[sic] of the cars”; partially inaudible and confusing instructions broadcast over the public
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address system; and “abrupt turns and moves” by other passengers trying to board a train. 

These factors caused Churchman to lose her balance and fall.

Churchman sued the District for violating its duty of care as a common carrier. 

(Civ. Code, § 2100 et seq.) Relying on McGettigan v. Bay Area Rapid Transit Dist. 

(1997) 57 Cal.App.4th 1011, the District demurred on the ground it has no common law 

negligence liability and its liability as a common carrier applies only to passengers in 

transit, i.e., aboard the BART train. The trial court agreed with the District, sustained the 

demurrer without leave to amend, and dismissed the action.

DISCUSSION

A.

We review an order sustaining a demurrer de novo, exercising our independent 

judgment as to whether, as a matter of law, the complaint states a cause of action on any 

available legal theory. (See Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.) 

We assume the truth of all material factual allegations together with those matters subject 

to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Additionally, we review 

de novo the trial court’s determination on undisputed facts of whether the District owed 

Churchman a heightened duty of care due to its status as a common carrier. (Orr v. 

Pacific Southwest Airlines (1989) 208 Cal.App.3d 1467, 1473.)

B.

Because the District is a public agency, we briefly pause to explain the framework 

for government tort liability.

Prior to 1961, under the common law, the government was generally immune to 

tort liability. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 931.) In Muskopf v.

Corning Hospital Dist. (1961) 55 Cal.2d 211, 216, our Supreme Court abrogated the rule 

as unjust. Following Muskopf, the Legislature enacted Civil Code former section 22.3, 

which temporarily reinstated the law that existed prior to Muskopf. (Nestle, at pp. 931–

932.) The Legislature asked the California Law Revision Commission to study 

governmental tort liability during the moratorium period. After receiving the 
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Commission’s recommendations, the Legislature passed the California Tort Claims Act 

of 1963 (Gov. Code, § 810, et seq.). (Id., at p. 932.)

Government Code section 815 is the “policy cornerstone” of the act. (Nestle v.

City of Santa Monica, supra, 6 Cal.3d at p. 932.) It declares sovereign immunity to be 

the general rule, subject only to statutory exceptions: “Except as otherwise provided by 

statute[,] . . . [a] public entity is not liable for an injury, whether such injury arises out of 

an act or omission of a public entity or a public employee or any other person.” (Gov.

Code § 815, subd. (a).) In a comment on the statute, a legislative committee explained, 

“This section abolishes all common law or judicially declared forms of liability for public 

entities . . . In the absence of a constitutional requirement, public entities may be found 

liable only if a statute . . . is found declaring them liable.” (Legis. Com. com., 32 West’s

Ann. Gov. Code (2012) foll. § 815, pp. 215–216; see Miklosy v. Regents of University of 

California (2008) 44 Cal.4th 876, 899.) Consequently, “ ‘all government tort liability 

must be based on statute.’ ” (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th

925, 932, quoting Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785,

fn. 2.) “[T]he intent of the act is not to expand the rights of plaintiffs in suits against 

governmental entities, but to confine potential governmental liability to rigidly delineated

circumstances; immunity is waived only if the various requirements of the act are 

satisfied.” (Williams v. Horvath (1976) 16 Cal.3d 834, 838.)

Churchman has identified Civil Code sections 2100 through 2103 as statutory 

bases for the District’s liability. These statutes establish duties for common carriers, and 

we now turn to them.

C.

Civil Code section 2100 applies to both public and private common carriers and 

therefore is a proper basis for public agency liability. (Lopez v. Southern Cal. Rapid

Transit Dist., supra, 40 Cal.3d at p. 785 & fn. 2.) The statute imposes a heightened 

standard of care that common carriers owe to their passengers: “A carrier of persons for 

reward must use the utmost care and diligence for their safe carriage, must provide 
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everything necessary for that purpose, and must exercise to that end a reasonable degree 

of skill.” (Civ. Code, § 2100.)

While this heightened standard applies to a passenger in transit, it generally does 

not apply to a passenger waiting in, or passing though, a station or terminal. (Orr v. 

Pacific Southwest Airlines, supra, 208 Cal.App.3d at pp. 1473–1474 [no heightened duty 

where plaintiff was injured in a security screening area of airport terminal]; Robson v. 

Union Pacific R. R. Co. (1945) 70 Cal.App.2d 759, 761 [“railroad is not an insurer of the 

safety of its station premises, but is required to exercise only ordinary care as to its 

invitees”]; see generally 6 Witkin, Summary of Cal. Law (11th ed. 2017) Torts § 1059, 

pp. 233–234.) Our Supreme Court has explained, “ ‘[t]he passenger while in actual 

progress upon his journey is exposed to countless hazards, gives himself wholly in charge 

of the carrier . . . . But a rule properly ceases with the reason for it; therefore, as a 

passenger’s entrance to the carrier’s station is characterized by none of the hazards 

incident to the journey itself, the rigor of the rule above announced is justly relaxed, in 

that at such a time and place the carrier is bound to exercise only a reasonable degree of 

care for the protection of his passengers.’ ” (Falls v. San Francisco etc. R. R. Co. (1893) 

97 Cal. 114, 119.)

But there are exceptions. The heightened standard may apply when a passenger, 

having purchased a ticket, is injured while being conducted to the boarding area by the 

carrier’s agent. (Sanchez v. Pacific Auto Stages (1931) 116 Cal.App. 392, 394, 396–397 

[plaintiff was hit by car while being escorted across highway by bus company employee]; 

Grier v. Ferrant (1944) 62 Cal.App.2d 306, 309–311 [disabled passenger slipped on wet 

surface while being escorted to taxi by cab company employee].) By assuming 

responsibility for escorting the passenger to the point of departure, the carrier establishes 

the carrier-passenger relationship and triggers the heightened duty of care (see Sanchez, 

supra, at p. 936), which continues until the passenger has been safely discharged. (See 

Riggins v. Pacific Greyhound Lines (1962) 203 Cal.App.2d 125, 128.) 

The heightened standard of care also may apply to mobile hazards peculiar to the 

transportation service, such as cable cars passing through a boarding area (Brandelius v. 
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City and County of S. F. (1957) 47 Cal.2d 729, 736), or jet blasts from an airplane (see 

Marshall v. United Airlines (1973) 35 Cal.App.3d 84, 87 [dicta].). Trains, cable cars, 

planes and similar vehicles present special risks, and common carriers are charged with a 

higher standard of care when operating them. (Sellars v. Southern Pacific Company 

(1917) 33 Cal.App. 701, 705-706.) Churchman relies heavily on this line of cases. (E.g., 

Ferran v. Southern Pac. Co. (1935) 3 Cal.2d 350, 352 [plaintiff struck by train in 

boarding area]; Sexton v. Key System Transit Lines (1956) 144 Cal.App.2d 719, 720 

[same]; Lagomarsino v. Market Street Ry. Co. (1945) 69 Cal.App.2d 388, 390–391 

[plaintiff struck by streetcar].)

In contrast, if a passenger injures herself when encountering minor commonplace 

hazards that one expects in a station or terminal, the heightened duty does not apply. 

Thus, courts have held common carriers to an ordinary standard of care when a passenger 

tripped over cargo while navigating crowds in a boarding area (Falls v. San Francisco 

etc. R. R. Co., supra, 97 Cal. at pp. 117–120), or fell when jostled by another person in a 

“ ‘disorderly, confused, and chaotic’ ” airport screening area (Orr v. Pacific Southwest 

Airlines, supra, 208 Cal.App.3d at p. 1470; id. at pp. 1471, 1473–1474), or tripped on a 

chipped floor tile in a train station (Robson v. Union Pacific R. R. Co., supra,

70 Cal.App.2d at pp. 761–763). Indeed, our Supreme Court has said a carrier is not 

required to “ ‘treat its passengers as children’ ” and passengers must familiarize 

themselves with commonplace conditions of railway traveling. (Falls, at p. 121; see 

McGettigan v. Bay Area Rapid Transit Dist., supra, 57 Cal.App.4th at p. 1021 [“the fact 

that [an intoxicated passenger ejected from a train] managed to injure himself on a [train] 

platform does not establish that [the carrier] exposed him to ‘mobile or animated’ hazards 

when it left him standing there”].)

Here, the trial court correctly ruled that Civil Code section 2100 does not extend to 

Churchman’s injuries, which were caused by ordinary risks of a busy train platform: 

crowds of people moving in multiple directions, noise, partially inaudible announcements 

on the public address system, and train doors abruptly opening and closing as passengers 

board and disembark. (See McGettigan v. Bay Area Rapid Transit Dist., supra, 
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57 Cal.App.4th at p. 1021; Falls v. San Francisco etc. R. R. Co., supra, 97 Cal. at 

pp. 120–121.) Civil Code section 2100 does not provide a basis for liability in this case.

D.

We reject Churchman’s arguments that the District may be liable for failure to 

provide safe vehicles (Civ. Code, § 2101); overcrowded or overloaded vehicles (id., 

§ 2102); or failure to give passengers reasonable accommodation, treat them civilly, or 

give them a reasonable amount of attention (id., § 2103). None of these things caused 

Churchman’s injuries. 

E.

Churchman does not identify any other statutory basis for liability. Although she 

suggested in the trial court the District may be liable for a dangerous condition of public 

property (see Gov. Code, § 835), she now concedes there was no physical defect in the 

boarding platform. (See Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1135 

[§ 835 requires “some defect in the property itself”].) She does not claim the District is 

vicariously liable for negligent acts of its employees. (See Gov. Code, § 815.2, 

subd. (a).) Finally, she does not request further leave to amend her complaint. (See 

Zelig, at p. 1126 [plaintiff has burden of showing amendment could cure complaint 

defect].) The trial court properly sustained the District’s demurrer and dismissed the 

action.

DISPOSITION

The judgment is affirmed. Churchman shall bear the District’s costs on appeal.
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_________________________

BURNS, J.

WE CONCUR:

_________________________

JONES, P. J.

_________________________

SIMONS, J.
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A151698

Superior Court of Alameda County, No. RG16829239, Robert D. McGuiness, Judge.

Sterns & Walker, Gerald Sterns, and Law Offices of Steven R. Jacobsen, Steven R. 

Jacobsen, for Plaintiff and Appellant.

Allen, Glaessner, Hazelwood & Werth, Kimberly Y. Chin and Lori A. Sebransky, for 

Defendant and Respondent.