Filed 10/19/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

JING HUANG,

Plaintiff and Appellant,

v.

THE BICYCLE CASINO, INC.,

Defendant and 

Respondent.

 B266350

 (Los Angeles County

 Super. Ct. No. BC511867)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Howard L. Halm, Judge. Reversed.

Steinbrecher and Associates and Edward Steinbrecher for 

Plaintiff and Appellant.

Manning & Kass, Ellrod, Ramirez, Trester LLP, Jeffrey M. 

Lenkov, Zubin Farinpour, and Mae G. Alberto, for Defendant and 

Respondent.
2

Jing Huang was injured boarding a shuttle bus provided by 

Bicycle Casino, Inc. (Bicycle Casino or the casino), which 

transported passengers from Monterey Park to Bicycle Casino in 

Bell Gardens. Huang sued Bicycle Casino for negligence. The 

trial court granted Bicycle Casino’s motion for summary 

judgment. We reverse.

FACTS AND PROCEDURE

Huang alleged Bicycle Casino was a common carrier and 

had a duty and responsibility to ensure the safety and security of 

its patrons who took the shuttle bus. Bicycle Casino allegedly 

knew or should have known of the dangers associated with 

patrons boarding the shuttle bus and was negligent in failing to 

provide a safe passageway for its patrons to enter the shuttle.

The relevant facts reflected in the parties’ separate 

statements of undisputed material facts are as follows. According 

to the Asian Games Manager at Bicycle Casino, the casino

operated a free shuttle service for a select group of people to 

whom it disbursed advertisements. The shuttle picked up 

passengers at certain restaurants and other landmarks on public 

streets and took them to Bicycle Casino to gamble.

The shuttle picked up passengers in Monterey Park on 

Garvey Street. It had been picking up passengers at that location 

since March 2012. The shuttle held 45 people, including the 

driver. There were no shuttle stop signs. The shuttle driver 

typically stood at the top of the steps of the bus, and the waiting 

passengers would “crowd” onto the shuttle. The driver collected

players cards that Bicycle Casino issued. Huang filled out 

paperwork to receive the card, but she did not pay any money for 

it. The shuttle passengers had access to special promotions like 

gambling chips and free lunches when they arrived at Bicycle 
3

Casino, where a casino host would return their players cards as 

they disembarked the shuttle. This was the purpose of checking 

their players cards when they boarded the shuttle. But 

individuals could board the shuttle if they did not have a players 

card. In this event, the shuttle driver would ask for their

identification.

On October 22, 2012, at around 1:00 p.m., Huang was 

waiting for the Bicycle Casino shuttle along with a crowd of 

others. One witness estimated approximately 40 to 50 people 

were waiting, while another estimated 60 to 70. The shuttle was 

supposed to pick up passengers at 1:15 p.m. The next pick up 

time was 2:15 p.m. When the shuttle arrived, it stopped 

approximately 20 to 30 meters from where the group was 

standing. The waiting crowd ran toward the shuttle, and Huang 

rushed to the shuttle with everyone else. Approximately 20 

people had already boarded the shuttle at the time Huang tried 

to board. Another person in the waiting crowed described the 

scene as “complete disorder” and “chaos.” Huang was on the left 

side of the shuttle entrance, and with her left hand on the 

handrail, she put her right foot on the first step. The crowd on 

the right side surged, and she was pushed and fell. But 

according to the shuttle driver, “[e]verybody else lined up,” and 

Huang cut in line. Paramedics took Huang to the hospital, where 

she had an X-ray. She had a broken bone in her left hip that 

required surgery the next day.

This was not the first instance in which a waiting crowd 

rushed the shuttle and pushed or shoved to board—it happened 

“all the time.” The 1:15 p.m. pickup time was popular. It also 

was not the first time there were more people waiting than there 

were seats on the shuttle, and the scene became “chaotic.”
4

Bicycle Casino had not given the shuttle driver any written 

policies or procedures to follow in operating the shuttle, nor did it

give him any training in operating the shuttle. But the driver 

had more than 10 years’ experience in driving buses, including 

for other casinos, and he had driven larger casino shuttles before.

When the driver first started driving the shuttle, he had a 

casino host accompanying him on the shuttle. The host would 

exit the shuttle and help the passengers line up and board. The 

host had the driver tell the waiting passengers in Chinese that 

the shuttle would not leave until they formed a line. After 

approximately half a month, the casino host stopped 

accompanying the driver regularly, though the driver would 

occasionally ask the host to accompany him when he saw the 

passengers becoming disorderly. The host told the shuttle 

drivers to make sure the waiting passengers formed a line before 

they even opened the door because he had seen people shoving 

each other from “[t]he very first.” There was no Bicycle Casino 

host on the shuttle on the day in question, solely a driver.

Prior to Huang’s incident, Bicycle Casino had never 

received a report of an injury on or in connection with its shuttle 

service. Huang never saw anyone fall, push, or shove others to 

get on the shuttle, prior to her incident.

Huang proffered the expert witness declaration of 

Augustine Zemba, who had testified in more than 600 depositions 

involving bus-related issues and testified in more than 80 court 

trials. He had more than 50 years’ experience managing and 

operating large bus fleets. Zemba opined that Bicycle Casino was 

operating the shuttle as a common carrier. He further opined 

that Bicycle Casino was negligent in that it failed to properly 

train its bus drivers on the safe and orderly boarding of 
5

passengers and have established, written safe-boarding 

procedures. He also concluded that it was foreseeable a 

passenger trying to board the shuttle under the circumstances of 

this case would be pushed, shoved, or bumped and fall. Bicycle 

Casino should have had a host or second person from the casino 

assisting the driver and passengers in safely boarding the bus. 

According to Zemba, this host should have made sure that the 

door to the shuttle remained closed until the passengers lined up 

several feet from the door to board one at a time. Bicycle Casino 

also should have provided a regular bus stop so that passengers 

knew where to wait, and it should have stopped the shuttle there 

instead of 30 meters away, causing a rush to the shuttle.

Bicycle Casino objected to Zemba’s entire declaration and to 

specific statements in it. It objected to the entire declaration on 

the grounds that it lacked foundation, Zemba lacked personal 

knowledge, he failed to state the basis for his opinion, and he had 

no experience or expertise in casino shuttle buses. Among other 

things, it also objected to the statements that Bicycle Casino was 

a common carrier; that it was foreseeable a passenger trying to 

board the shuttle under the circumstances of this case would be 

pushed, shoved, or bumped and fall; and that Bicycle Casino was 

negligent in failing to provide a host on the shuttle.

The court granted Bicycle Casino’s motion for summary 

judgment and sustained all objections to Zemba’s declaration. It 

held Bicycle Casino was not a common carrier and owed only a 

duty of ordinary care to the shuttle passengers. But the scope of 

the ordinary duty of care did not extend to protecting Huang from 

being bumped by other passengers as she boarded the shuttle. In 

light of the ruling on duty, the court declined to address Bicycle 
6

Casino’s additional argument that Huang could not prove 

causation.

The court entered judgment for Bicycle Casino, and Huang 

timely appealed.

STANDARD OF REVIEW

The trial court shall grant a motion for summary judgment 

if all the papers show there is no triable issue as to any material 

fact and the moving party is entitled to a judgment as a matter of 

law. (Code Civ. Proc., § 437c, subd. (c).) The defendant moving 

for summary judgment has the burden of establishing either (1) 

one or more elements of the plaintiff’s causes of action cannot be 

established or (2) a complete affirmative defense to the causes of 

action exists. (Code Civ. Proc., § 437c, subds. (o)(1), (2), (p)(2).) 

To demonstrate the elements of a cause of action cannot be 

established, the defendant may show the plaintiff does not 

possess evidence needed to support a prima facie case and cannot 

reasonably obtain the needed evidence. (Aguilar v. Atlantic 

Richfield Co. (2001) 25 Cal.4th 826, 854.) The defendant may 

also, but need not, present evidence conclusively negating an 

element of the cause of action. (Ibid.) Once the defendant has 

met its initial burden, the burden shifts to the plaintiff to produce 

evidence showing a triable issue of material fact. (Code Civ. 

Proc., § 437c, subd. (p)(2).)

On appeal from summary judgment, we review the record 

de novo and must independently determine whether triable 

issues of material fact exist. (Saelzler v. Advanced Group 400

(2001) 25 Cal.4th 763, 767; Guz v. Bechtel National, Inc. (2000) 

24 Cal.4th 317, 334.) We resolve any evidentiary doubts or 

ambiguities and view all inferences from the evidence in the light 

most favorable to the party opposing summary judgment. 
7

(Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843; 

Saelzler v. Advanced Group 400, supra, at p. 768.)

DISCUSSION

The elements of a negligence cause of action are a legal 

duty, a breach of the legal duty, proximate or legal cause, and a

resulting injury. (United States Liab. Ins. Co. v. HaidingerHayes, Inc. (1970) 1 Cal.3d 586, 594.) In this case, Huang alleged

Bicycle Casino was a common carrier, a type of entity that owes a 

heightened duty of care to its passengers under certain 

circumstances. Bicycle Casino argued it was not a common 

carrier and thus owed only a duty of ordinary care to its shuttle 

passengers. But even then, Bicycle Casino asserted the scope of 

the duty of ordinary care did not extend to preventing the harm 

Huang suffered.

We address the common carrier issue first and then turn to 

the scope of the duty of ordinary care. We conclude the court 

erred in holding Bicycle Casino was not a common carrier as a 

matter of law, as there is a triable issue of material fact on the 

point. We further conclude that, even if the casino were a private 

carrier owing only a duty of ordinary care, there was no basis for 

establishing a “no duty” rule in this case.

1. Common Carrier

A common carrier of persons includes “[e]veryone who 

offers to the public to carry persons.” (Civ. Code, § 2168.) The 

Civil Code treats common carriers differently depending on 

whether they act gratuitously or for reward. (Gomez v. Superior 

Court (2005) 35 Cal.4th 1125, 1130 (Gomez).) “A carrier of 

persons without reward must use ordinary care and diligence for 

their safe carriage.” (Civ. Code, § 2096.) But “[c]arriers of 

persons for reward have long been subject to a heightened duty of 
8

care.” (Gomez, supra, at p. 1128.) Such carriers “must use the 

utmost care and diligence for [passengers’] safe carriage, must 

provide everything necessary for that purpose, and must exercise 

to that end a reasonable degree of skill.” (Civ. Code, § 2100; 

accord Gomez, supra, at p. 1130.) While these carriers are not 

insurers of their passengers’ safety, “[t]his standard of care 

requires common carriers ‘to do all that human care, vigilance, 

and foresight reasonably can do under the circumstances.’ ” 

(Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 

1499, 1507 (Squaw Valley).)

Whether a party is a common carrier for reward may be 

decided as a matter of law when the material facts are not in 

dispute. (Squaw Valley, supra, 2 Cal.App.4th at p. 1506.) When 

the material facts are disputed, it is a question of fact for the 

jury. (Gradus v. Hanson Aviation, Inc. (1984) 158 Cal.App.3d 

1038, 1048-1049 (Gradus); see CACI No. 901 [“Status of Common 

Carrier Disputed”].)

Factors bearing on a party’s common carrier status include: 

(1) whether the party maintained an established place of 

business for the purpose of transporting passengers; (2) whether 

the party engaged in transportation as a regular business and 

not as a casual or occasional undertaking; (3) whether the party 

advertised its transportation services to the general public; and 

(4) whether the party charged standard rates for its service. 

(Gradus, supra, 158 Cal.App.3d at p. 1048; CACI No. 901.) The 

party need not have a regular schedule or a fixed route to be a 

common carrier, nor need the party have a transportation license. 

(Gradus, supra, at p. 1048; CACI No. 901.)

Not all these factors need be present for the party to be a 

common carrier subject to the heightened duty of care. (See 
9

CACI No. 901 (2016 ed.) Sources and Authority, p. 546 [“Note 

that these factors may not be applicable in all cases.”].) For 

instance, “[i]t is now well established that commercial operators 

of elevators and escalators” may be common carriers for reward

(Gomez, supra, 35 Cal.4th at p. 1131), even though stores do not 

maintain an established place of business solely for purposes of 

transporting escalator or elevator passengers. And “[a]lthough a 

store does not charge for use of its elevators or escalators, it 

profits from the utilization of these devices to assist customers in 

shopping at the store.” (Squaw Valley, supra, 2 Cal.App.4th at

p. 1508.) In other words, the “reward” contemplated by the 

statutory scheme need not be a fee charged for the transportation 

service. (Champagne v. A. Hamburger & Sons, Inc. (1915) 169 

Cal. 683, 692 [“Reward does not necessarily import that there 

must be a fare paid for carriage . . . .”].) The reward may be the 

profit generated indirectly by easing customers’ way through the 

carriers’ premises. (Treadwell v. Whittier (1889) 80 Cal. 574, 

592.)

Also, “the ‘public’ does not mean everyone all of the time; 

naturally, passengers are restricted by the type of transportation 

the carrier affords. [Citations.] ‘One may be a common carrier 

though the nature of the service rendered is sufficiently 

specialized as to be of possible use to only a fraction of the total 

population.’ [Citation.] To be a common carrier, the entity 

merely must be of the character that members of the general 

public may, if they choose, avail themselves of it.” (Squaw Valley, 

supra, 2 Cal.App.4th at pp. 1509-1510.) “Hence, a common 

carrier [for reward] is any entity which holds itself out to the 

public generally and indifferently to transport goods or persons 

from place to place for profit.” (Id. at p. 1508.)
10

Applying these principles, we hold there is a triable issue of 

material fact on whether the Bicycle Casino shuttle was a 

common carrier. The shuttle was for reward in the same sense

that department stores offer escalators or elevators for reward. 

Bicycle Casino reaped reward from the shuttle by transporting 

passengers to its premises, where they disembarked, gambled, 

and lost money to the casino. As to whether the casino held the 

shuttle out generally and indifferently to the public, Bicycle 

Casino’s Asian Games Manager declared that it sent the 

advertisements for the shuttle to a select group of people. But

there was no further evidence about how the casino selected this 

group, or evidence showing that it was, in fact, a small group. 

Even if the advertisements targeted a particular sector of the 

public, evidence demonstrated the casino offered the shuttle 

indiscriminately to the public in the sense that anyone wishing to 

go to its premises could board the shuttle. The shuttle stopped on 

public streets. Passengers could show the driver a players card 

to board or any other form of identification, if they did not have a 

players card. At the very least, there was a triable issue on 

whether Bicycle Casino held the shuttle out to the public 

generally and indifferently, and the casino was not entitled to 

summary adjudication on the common carrier issue.

Bicycle Casino relies on the fact that it does not maintain 

an established place of business solely for transporting 

passengers, but neither do department stores and ski resorts, and 

yet courts have found their escalators, elevators, and ski lifts to 

be common carriers for reward. (Champagne v. A. Hamburger & 

Sons, Inc., supra, 169 Cal. at pp. 692-693; Squaw Valley, supra, 2 

Cal.App.4th at p. 1508.) It is not dispositive that the casino’s 

primary business is something other than transportation. What 
11

ultimately matters is whether the casino indiscriminately offered

the shuttle to the public and whether it offered the shuttle for 

reward.1

Bicycle Casino’s moving papers attempted to demonstrate 

that its duty of ordinary care did not extend to preventing the 

harm Huang suffered. But it never attempted to demonstrate 

that, assuming it was a common carrier, the duty of utmost care 

and diligence did not extend to preventing Huang’s harm. We 

may reverse the summary judgment for Bicycle Casino on this 

basis alone.

2. Scope of Duty of Ordinary Care

The trial court held Bicycle Casino was subject to a duty of 

ordinary care and had no such duty to prevent Huang’s injury in 

this case, as a matter of law. Even if we assume for the sake of 

argument that Bicycle Casino was not a common carrier, and 

therefore the duty of ordinary care applied here, we would decline 

 

1 Huang argues the court erred in sustaining Bicycle 

Casino’s objection to the entirety of her expert witness 

declaration. She does not address the specific objection that the 

court sustained to Zemba’s opinion that Bicycle Casino was 

acting as a common carrier (on the ground of “[i]mproper legal 

opinion by a non-lawyer”). We need not decide whether the court 

erred in sustaining the objections to Zemba’s declaration because 

there is no prejudice. Our analysis does not rely on Zemba’s 

declaration, but on the facts adduced from deposition transcripts, 

percipient witness declarations, and other documentary evidence 

the parties submitted with their briefing below. Thus, even 

without considering Zemba’s declaration, a triable issue of

material fact existed.
12

to find an exemption from the duty of ordinary care as a matter of 

law.

“California law establishes the general duty of each person 

to exercise, in his or her activities, reasonable care for the safety 

of others. (Civ. Code, § 1714, subd. (a).)” (Cabral v. Ralphs 

Grocery Co. (2011) 51 Cal.4th 764, 768 (Cabral).) “Whether a 

given case falls within an exception to this general rule, or 

whether a duty of care exists in a given circumstance, ‘is a 

question of law to be determined on a case-by-case basis.’ ” 

(Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472

(Parsons).) This is true whether we arrive at a no-duty holding or 

a holding merely limiting the scope of the duty. (Cabral, supra, 

at p. 773.)

“Duty is not an immutable fact, but rather an expression of 

policy considerations leading to the legal conclusion that a 

plaintiff is entitled to a defendant’s protection.” (Ludwig v. City 

of San Diego (1998) 65 Cal.App.4th 1105, 1110.) In the absence 

of a statute establishing an exception to the duty of ordinary care, 

“courts should create one only where ‘clearly supported by public 

policy.’ ” (Cabral, supra, 51 Cal.4th at p. 771.)

The primary factor in the duty analysis is foreseeability. 

(Pedeferri v. Seidner Enterprises (2013) 216 Cal.App.4th 359, 366

(Pedeferri).) We evaluate foreseeability “at a relatively broad 

level of factual generality.” (Cabral, supra, 51 Cal.4th at p. 772.) 

Thus, our task “ ‘is not to decide whether a particular plaintiff’s 

injury was reasonably foreseeable in light of a particular

defendant’s conduct . . . . [Instead, we must] evaluate more 

generally whether the category of negligent conduct at issue is 

sufficiently likely to result in the kind of harm experienced that 

liability may appropriately be imposed [on the negligent party].’ ” 
13

(Ibid.) Foreseeability involves three considerations: “ ‘the 

[general] foreseeability of harm to the plaintiff, the degree of 

certainty that the plaintiff suffered injury, [and] the closeness of 

the connection between the defendant’s conduct and the injury 

suffered.’ ” (Parsons, supra, 15 Cal.4th at p. 473; see Pedeferri, 

supra, at p. 367.)

Foreseeability, while the primary factor, is not the end of 

the duty analysis. (Pedeferri, supra, 216 Cal.App.4th at p. 368.) 

“The next step is to assess whether other public policies militate 

against a duty notwithstanding the general foreseeability of the 

harm.” (Ibid.) These factors include “ ‘the moral blame attached 

to the defendant’s conduct, the policy of preventing future harm, 

the extent of the burden to the defendant and consequences to 

the community of imposing a duty to exercise care with resulting 

liability for breach, and the availability, cost, and prevalence of 

insurance for the risk involved.’ ” (Parsons, supra, 15 Cal.4th at

p. 473.) Like foreseeability, we evaluate these factors at a broad 

level of generality, and ask “not whether they support an 

exception to the general duty of reasonable care on the facts of 

the particular case before us, but whether carving out an entire 

category of cases from that general duty rule is justified by 

[these] clear considerations of policy.” (Cabral, supra, 51 Cal.4th

at p. 772.)

Our consideration of foreseeability and the other public 

policy factors at a general and categorical level is important, as 

explained by our Supreme Court in Cabral: “By making 

exceptions to Civil Code section 1714’s general duty of ordinary 

care only when foreseeability and policy considerations justify a 

categorical no-duty rule, we preserve the crucial distinction 

between a determination that the defendant owed the plaintiff no 
14

duty of ordinary care, which is for the court to make, and a 

determination that the defendant did not breach the duty of 

ordinary care, which in a jury trial is for the jury to make.” 

(Cabral, supra, 51 Cal.4th at p. 772.) This is why the court 

deciding duty assesses foreseeability from the general category of 

negligent conduct at issue. (Id. at p. 773.) When the court 

decides the defendant owed the plaintiff a duty of ordinary care, 

the jury then considers the case-specific foreseeability of the 

plaintiff’s injury in assessing whether the defendant breached the 

duty of ordinary care. (Ibid.) An approach in which the court 

focuses its duty inquiry on case-specific facts “would tend to 

‘eliminate the role of the jury in negligence cases, transforming 

the question of whether a defendant breached the duty of care 

under the facts of a particular case into a legal issue to be decided 

by the court . . . .’ ” (Ibid.) In short, the legal question of whether 

to make an exception to the general duty of ordinary care, “so 

that the defendant owed no duty to the plaintiff, or owed only a 

limited duty, is to be made on a more general basis suitable to the 

formulation of a legal rule, in most cases preserving for the jury 

the fact-specific question of whether or not the defendant acted 

reasonably under the circumstances.” (Ibid.)

2

 

2 Cabral noted that California is in accord with the 

Restatement, which explains: “ ‘No-duty rules are appropriate 

only when a court can promulgate relatively clear, categorical, 

bright-line rules of law applicable to a general class of cases.’ 

[Citation.] ‘. . . When no such categorical considerations apply 

and reasonable minds could differ about the competing risks and 

burdens or the foreseeability of the risks in a specific 

case, . . . courts should not use duty and no-duty determinations 

to substitute their evaluation for that of the factfinder.’ ” 
15

Here, our first step must be to articulate the duty at issue. 

(Pedeferri, supra, 216 Cal.App.4th at p. 365.) Bicycle Casino 

appears to acknowledge that it generally had a duty of ordinary 

care to its passengers. It asserts, however, that it did not have a 

duty to designate a bus stop (so as to avoid a stampede because 

the passengers waited far from where the shuttle stopped), or to 

have a casino host or security personnel on board. Bicycle 

Casino’s articulation of duty is based too closely on the casespecific facts. We will instead frame the issue as whether a 

shuttle operator owes its passengers a duty to exercise ordinary 

care in deciding where and how to board passengers. (See, e.g., 

Cabral, supra, 51 Cal.4th at p. 774 [framing the duty issue as 

“whether a freeway driver owes other drivers a duty of ordinary 

care in choosing whether, where and how to stop on the side of 

the road”]; Pedeferri, supra, at p. 366 [framing the duty issue as 

“whether a commercial vendor owes a duty of care to persons on 

or near the roadways who are injured as a result of the vendor’s 

negligence in loading and securing cargo in a vehicle in a way 

that distracts the vehicle’s driver”].) We consider foreseeability 

first and then the other public policy factors.

a. Foreseeability Considerations

To reiterate, we consider “ ‘the [general] foreseeability of 

harm to the plaintiff, the degree of certainty that the plaintiff 

suffered injury, [and] the closeness of the connection between the 

 

(Cabral, supra, 51 Cal.4th at p. 773, fn. 3, quoting Rest.3d Torts, 

Liability for Physical and Emotional Harm, § 7, coms. a, i., pp. 78, 

82.)
16

defendant’s conduct and the injury suffered.’ ” (Parsons, supra, 

15 Cal.4th at pp. 472-473.)

We may generally foresee that a shuttle operator’s failure 

to try to direct or control the boarding of a large group (the 

general category of negligent conduct at issue) could result in the 

passengers jockeying for positions, jostling each other, and 

pushing or shoving each other. This is especially the case when 

the shuttle clearly is too small to hold all members of the waiting 

group. It is further foreseeable that passengers pushing or 

shoving to board first might knock someone to the ground, either 

intentionally or negligently—the type of harm that occurred here. 

“This chain of foreseeability is both short and direct.” (Pedeferri, 

supra, 216 Cal.App.4th at p. 367.) Therefore, the connection 

between the shuttle operator’s failure to try to direct the boarding 

of a large group and the type of injury suffered by Huang is not 

too attenuated, remote, or unexpected. (Cabral, supra, 51 

Cal.4th at p. 779 [“[T]he question of ‘the closeness of the 

connection between the defendant’s conduct and the injury 

suffered’ [citation] is strongly related to the question of 

foreseeability itself.”].) It is also certain on this record that 

Huang suffered injury.

Bicycle Casino contends Huang’s injury was not foreseeable 

because the casino had no prior reports of an injury suffered in 

this manner, and Huang herself testified that she never saw 

anyone fall while trying to board the shuttle. These kind of casespecific facts might play into the trier of fact’s decision on breach 

of duty or causation, but they should not be the basis for a 

categorical no-duty rule here. (Cabral, supra, 51 Cal.4th at

p. 777 [rejecting the defendant’s contention that case-specific 

circumstances made the plaintiff’s injury unforeseeable for 
17

purposes of the duty analysis, and noting that the case-specific 

circumstances “probably played a role in the jury’s decision to 

assign” the defendant a minimal share of responsibility for the 

collision, “but they do not show lack of foreseeability for the 

entire category of negligent conduct at issue here”].)

We must distinguish between the separate questions of 

whether a duty exists and whether the casino breached that duty 

by the failure to use the care that a reasonable person would 

under the circumstances.3 “[T]he question of foreseeability in a 

‘duty’ context is a limited one for the court, and readily 

contrasted with the fact-specific foreseeability questions bearing 

on negligence (breach of duty) and proximate causation posed to 

the jury or trier of fact.” (Lopez v. McDonald’s Corp. (1987) 193 

Cal.App.3d 495, 507.) In the sense of foreseeability pertinent to 

duty, we focus on the general character of the event at issue and 

inquire whether it was “ ‘ “likely enough in the setting of modern 

life that a reasonably thoughtful [person] would take account of it 

in guiding practical conduct.” ’ ” (Laabs v. Southern California 

Edison Co. (2009) 175 Cal.App.4th 1260, 1273.) That a shuttle 

bus might not have enough seats for a large group of waiting 

passengers is likely enough in the setting of modern life that we 

can deem such an event generally foreseeable, and the 

scrambling for seats among the passengers likewise foreseeable.

Even if we consider the case-specific facts here, the absence 

of any actual falls prior to this incident should not be dispositive. 

 

3

In the case of a common carrier, the question for the trier of 

fact would be whether the casino breached the duty of utmost 

care and diligence, under the circumstances.
18

It was sufficient that there had been prior incidents of crowds too 

large for the shuttle. During these incidents, the scene had 

devolved into chaos, so much so that the driver had asked the 

casino host to accompany him when the passengers became 

disorderly.

Our Supreme Court has cited a number of good reasons for 

refusing to give dispositive effect to the absence of prior similar 

incidents when it considered the similar issue of a landowner’s 

duty to protect invitees against the criminal acts of third persons.

First, if the absence of any prior similar incidents is dispositive, 

“the first victim always loses, while subsequent victims are 

permitted recovery. Such a result is not only unfair, but is 

inimical to the important policy of compensating injured 

parties . . . .” (Isaacs v. Huntington Memorial Hospital (1985) 38 

Cal.3d 112, 125.) Second, such a rule “leads to arbitrary results 

and distinctions. [Citation.] [T]here is uncertainty as to how 

‘similar’ the prior incidents must be to satisfy the rule. The rule 

[also] raises a number of other troubling questions. For example, 

how close in time do the prior incidents have to be? How near in 

location must they be?” (Id. at p. 126.) “Third, the rule 

erroneously equates foreseeability of a particular act with 

previous occurrences of similar acts,” and our Supreme Court 

“has already rejected that notion. ‘ “The mere fact that a 

particular kind of an accident has not happened before does 

not . . . show that such accident is one which might not 

reasonably have been anticipated.” ’ ” (Ibid.) Fourth, and 

“[f]inally, the ‘prior similar incidents’ rule improperly removes too 

many cases from the jury’s consideration.” (Ibid.)

For these reasons, we are not persuaded by Bicycle Casino’s 

reliance on Porter v. California Jockey Club, Inc. (1955) 134 
19

Cal.App.2d 158 (Porter), in which the court affirmed a judgment 

of nonsuit for the defendant racetrack owner. The plaintiff was 

injured when she went to place a bet between races, and a man 

rushing up the stairway to the betting windows ran into her. (Id.

at p. 159.) Evidence showed spectators were in the habit of 

crowding the stairways and running to the betting windows just 

before each race started. (Ibid.) But because there was “no 

evidence of any prior negligent conduct on the part of even one 

spectator,” the court refused to impose a duty on the racetrack 

owner “to take steps to guard against such contingency.” (Id. at 

p. 160.) The Porter court did not have the benefit of our Supreme 

Court’s reasoning as to why the lack of prior similar incidents 

should not dispose of the question of foreseeability. Moreover, 

Porter did not address the foreseeability and other public policy 

considerations that go into a duty analysis, other than to say the 

harm was not foreseeable because no similar incidents had 

occurred before.

Bicycle Casino also suggests it had no duty here because 

Huang was injured as a result of the wrongful conduct of third 

parties (the unidentified passengers who knocked Huang down). 

Although, “as a general matter, there is no duty to act to protect 

others from the conduct of third parties” (Delgado v. Trax Bar & 

Grill (2005) 36 Cal.4th 224, 235), we impose a duty to take 

affirmative action to control the wrongful acts of third parties

when such conduct may be reasonably anticipated (Juarez v. Boy 

Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 402). In other 

words, a duty is imposed when such third party conduct was 

reasonably foreseeable. As we have already discussed, that an 

overlarge group of passengers might push or shove each other to 

board was generally foreseeable here. Whether unidentified 
20

passengers might be primarily or partially responsible for 

Huang’s injury, or whether she bears some responsibility for it

herself, are questions for the trier of fact in considering 

causation. The argument does not convince us to create a 

categorical no-duty rule here. (Cabral, supra, 51 Cal.4th at

p. 777.)

In sum, the foreseeability considerations weigh against the 

creation of a categorical exception to the duty of ordinary care in

this case.

b. Other Public Policy Considerations

The remaining policy considerations are “ ‘the moral blame 

attached to the defendant’s conduct, the policy of preventing 

future harm, the extent of the burden to the defendant and 

consequences to the community of imposing a duty to exercise 

care with resulting liability for breach, and the availability, cost, 

and prevalence of insurance for the risk involved.’ ” (Parsons, 

supra, 15 Cal.4th at p. 473.) Along with foreseeability, the extent 

of the burden to the defendant is the crucial consideration. 

(Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213.)

Here, the extent of the burden on Bicycle Casino weighs 

against the creation of a no-duty rule; that is to say, our

recognition of a duty does not place a necessarily heavy burden 

on shuttle operators. Bicycle Casino argues imposing a duty to 

have safety personnel or a host on board is too costly and places 

too heavy a burden on society. We are not holding that shuttle 

operators must hire safety personnel to ride on shuttles in 

addition to the driver or provide a casino host for every ride. 

There are precautionary measures the shuttle operator could 

take short of these things that would pose little to no financial 

burden on it. The shuttle driver could simply inform the waiting 
21

crowd that no one may board unless they line up in an orderly 

fashion, as the casino host suggested to the driver in this case, 

and as the driver had apparently done on previous occasions at 

the host’s direction. Or, notice of such a rule could be posted on 

the schedule the casino disburses to the targeted group of 

potential passengers. In the alternative, or in addition, the 

driver could stop as close as safely possible to large waiting 

crowds, so there is little or no room for the passengers to run 

toward the shuttle. Bicycle Casino contends such a measure 

would not have mattered because Huang was not injured in the 

run to the shuttle—she was injured as she stepped onto the 

shuttle stairs. But the 20-30 meter dash to the shuttle door 

contributed to the excitement of the crowd and made the scene at 

the stairs more chaotic than it needed to be. There are several 

inexpensive measures shuttle operators in these situations may 

take, and we are not suggesting that shuttle operators must take 

any or all of the measures we have discussed. We are not 

creating a new duty to have safety personnel present on all 

shuttles. We are merely deciding whether to create an exception 

to the general duty of ordinary care that all individuals must 

exercise in their activities. (Cabral, supra, 51 Cal.4th at p. 783 

[“The question is not whether a new duty should be created, but 

whether an exception to Civil Code section 1714’s duty of 

exercising ordinary care in one’s activities, including operation of 

a motor vehicle, should be created.”].)

The other public policy factors also do not support the 

creation of a no-duty rule here. A shuttle operator who 

negligently boards a large group of passengers does not act in an 

especially blameworthy manner, but such conduct is not 

particularly encouraged or authorized either. (Cabral, supra, 51 
22

Cal.4th at p. 782 [noting that the defendant’s negligent conduct 

(stopping a truck alongside a freeway) was “hardly a heinous act, 

but neither does it receive any special legal protection” in sense 

that no state or federal law encouraged or authorized it].) 

Imposing a duty of ordinary care in deciding where and how to

board groups of passengers with resulting liability for negligent 

exercise of that duty would discourage negligence and serve the 

policy of preventing future harm. (Pedeferri, supra, 216 

Cal.App.4th at p. 368.)

Overall, we conclude an exception to the duty of ordinary 

care is not “ ‘clearly supported by public policy’ ” (Cabral, supra, 

51 Cal.4th at p. 781), nor do foreseeability considerations support 

an exception. We would decline to hold Bicycle Casino had no 

duty of ordinary care as a matter of law. Accordingly, it was not 

entitled to summary judgment on this ground.4

3. Causation

The only other ground on which Bicycle Casino moved for 

summary judgment was a lack of causation as a matter of law. 

The trial court did not reach this issue, in light of its holding on 

the lack of duty. We hold Bicycle Casino was not entitled to 

summary judgment on causation grounds.

 

4 Huang argues the trial court erred in sustaining Bicycle 

Casino’s objection to the entirety of Zemba’s expert witness 

declaration. As with the common carrier issue, we do not rely on 

Zemba’s declaration (see fn. 1, ante), and this is particularly true 

as to the existence of duty, which is a legal question for the court. 

Thus, we need not decide whether the court erred in sustaining 

the objection to his declaration.
23

The casino’s argument on this issue consisted of bare 

assertions that Huang could not prove her injury was caused by 

the failure to have a guard or other employee stationed on the 

shuttle, the failure to have a larger shuttle with more seats 

available, or the driver’s stopping the shuttle 30 meters away 

from the crowd. Similarly, Bicycle Casino’s separate statement of 

undisputed material facts simply stated that Huang lacked 

evidence each of these things caused a third party patron to 

bump into her. While it did not rule on the causation issue, the 

trial court sustained Huang’s objections to these statements of 

fact.

“Proximate cause . . . is generally a question of fact for the 

jury . . . .” (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 

Cal.3d 508, 520.) Even if another passenger’s pushing and 

shoving knocked Huang over, Bicycle Casino is not necessarily 

resolved of liability. “A defendant’s negligent conduct may 

combine with another factor to cause harm; if a defendant’s 

negligence was a substantial factor in causing the plaintiff’s 

harm, then the defendant is responsible for the harm; a 

defendant cannot avoid responsibility just because some other 

person, condition, or event was also a substantial factor in 

causing the plaintiff’s harm; but conduct is not a substantial 

factor in causing harm if the same harm would have occurred 

without that conduct.” (Yanez v. Plummer (2013) 221 

Cal.App.4th 180, 187.) Moreover, a third party’s conduct is a 

superseding force cutting off the defendant’s liability only if it 

was unforeseeable and the injury it caused was unforeseeable 

under the circumstances of the case. (Akins v. County of Sonoma

(1967) 67 Cal.2d 185, 199.) Under these principles, Bicycle 

Casino’s motion failed to show that it did not cause Huang’s 
24

injury as a matter of law. There are genuine issues of material 

fact regarding causation here.

DISPOSITION

The judgment is reversed. The trial court shall enter an 

order denying Bicycle Casino’s motion for summary judgment. 

Huang shall recover costs on appeal.

FLIER, J.

WE CONCUR:

RUBIN, Acting P. J.

GRIMES, J.