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, E llrod, 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

tra nsporte d 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

p atrons boarding the shuttle bus and was negligent in fa iling 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

opera ted 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

. T he shuttle picked up pas sengers in Monterey Park on Garvey Street

. It had been picking up passengers at that location
since March 2012. The sh uttle held 45 people, including the
driver

. There were no shuttle stop signs. The shuttle driver typically stood at the to p of the ste ps of the bus, and the waiting

passengers w ould “crowd” onto the shuttle

. The driver collected players cards that Bicycle Casino issued . Huang fil l ed out paperwork to receive the card, but she did not pay any money for
it. The shuttle passengers had acc ess to special promotions like gambling chips and free lunches when they arrived at Bicycle3

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 the y boarde d 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 a long 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, i t 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 bo ard. 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

. T he crowd on the righ t side surged, and she was pushed and fell. But

a ccording 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 surge ry the next day. This was not the first instance in which a waiting c rowd 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 th an 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 t he d river
had more than 10 years ’ experience in driving bus es, including for other casinos, and he had driven larger casino shuttl es before. When the driver first started driving the shuttle, he had a casino host accompany ing him on the shuttle

. The host woul d
exit the shuttle and help the passengers line up and board. The
h ost 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 drive r 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 questio n, solely a driver. Prior to Huang’s incident, Bicycle Casino had never received a report of an injury on or in con nection 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 of5

passengers and have established

, writte n safe

- boarding procedures. He also concluded that it was foreseeable a passenger trying to board t he shutt le 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 shou ld 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 shoul d 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 foundati on, 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 , i t 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 moti on 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 pro tect ing Huang from being bumped by other passengers as she boarded the shuttle. In light of the ruling on duty, the court declined to address Bicycle6

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. ( C ode 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 cause s of action cannot be
established or (2) a complete affirmative defense to the cause s of

a ction exists. ( Code Civ. Proc., § 437c, subds. ( o )(1), (2), (p)(2 ).)
To demonstrate the elements of a cause of action cannot be established, t he defendant may show the plaintiff does not

possess evidence needed to support a prima facie case and cannot

re asonably 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 whethe r triable
issues of material fact exist. ( Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 ; Guz v. Bechtel Nat ional, 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 n egligence 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. Haidinger

Hayes, Inc. (1970) 1 Cal.3d 586, 594.) In this case, Huang alleged Bicycle Ca sino was a common carrier, a type of entity that owe s a heightened duty of care to its passe n gers 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 suf

fered

. 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
mat ter of law , as there is a triable issue of material fact on the point . We further conclude that , even if the casino w ere 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 Carrie r A common carrier of persons includes “[e]very one 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 (200 5) 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 of8

care. ” ( Gom ez , 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 Gom ez, 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 .) Whe n 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 c arrier 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
advertise d 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 part y need not have a regular schedule or a fixed rou te to be a
common carrier , nor need the party have a transportation license. ( Gradus

, supra , at p. 1048 ; CACI No. 901

. )
N ot all these factors need be present for the party to be a common carrier subject to the heightened duty of care. (See9

CACI No. 901 ( 201 6 ed.) Sources and Authority

, p. 5 4 6 [“ Note that these factors may not be applicable in all cases

. ” ].) For instance, “ [i] t is now well established that commercial operat ors of elevators and escalators” may be common carriers for reward ( Gomez, supra , 3 5 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 fro m 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, t he “reward” contemplated b y 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
th ough the nature of the service rendered is sufficiently specialized as to be of possible use to only a fr action of the total population.’ [Citation.] To be a common carrier, the entity merely must be of the character that members of the general public ma y, if they choose, avail themselves of it .” ( Squaw Valle y,

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 pla ce 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 indif ferently to the public, Bicycle
Casino ’s Asian Games Manager declared that it sent the
advertisements for the shut tle 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

. E ven 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 shut tle. 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 th e 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 transporti ng

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 Valle y, supra , 2 Cal.App.4th at p. 1508 .) It is not dispositive t hat the casino’s primary business is something other than transportation. What11

ultimately matters is whether the casino indiscriminately offer ed 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 ut most care and diligence did not extend to preventing Huang’s harm. We

may reverse the summ ary 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 ha d 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 o f 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 actin g 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 decla ration, 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 o f 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 e xists in a given circumstance, ‘ is a question of law to be dete rmined on a case

- by

- case basis.’ ” ( Parsons v. Crown D isposal 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 cons iderations leading to the legal conclusion that a plain tiff 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,
“cou rts 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

( Ibi d .) 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

s uffered.’ ” ( Parsons

, supra , 15 Cal.4th at p. 47 3 ; 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 “ ‘t he moral blame attached
to the defendant’ s conduct, the policy of preventing future harm,
the extent of the burden to the d efendant 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. 47 3 .) L ike foreseeabil ity, 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 tha t 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 ou r 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 no14

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. ( I d . at p. 773.) When the court decides the defendant owed the plaintiff a duty of ordinary care, the jury then considers the c ase

- 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 case s. ’ [Citation.] ‘

. . . W hen no such categorical considerations apply and reasonable minds could differ about the competing risks and burdens or the foreseeability o f the risks in a specific

case,

. . . courts should not use duty and no

- duty determination s 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 ho st or security personnel on board. Bicycle Casino’s articulation of duty is based too closely on the case

specific 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 ve hicle’ s driver ”].) We consider foreseeability
first and then th e 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
suff ered 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

- 47 3 .) 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 s hoving each other. This is especially the case when the shuttle clearly is too small to hol d 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 b oth 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

c onnection between the defendant’ s conduct and the injury
suffered ’ [citation] is strongly related to the question of foreseeability itself

. ”].) It is also cert ain 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. T hese kind of case

specific 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 for17

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 negli gent conduct at issue here”].)
We must distinguish between the separate questions of whether a duty exists and whether the casin o breached that duty by the failure to use the care that a reasonable person would
under the circumstances. 3 “[T] he q uestion 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.Ap p.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 passenger s likewise foreseeable.
Even if we consider t he case

- specific facts here, the absence of any actual falls prior to t his incident s hould not be dispositive.

3 In the case of a common carrier, the question f or 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 pr ior similar
incidents when it consider ed the similar issue of a landowner’s duty to protect invitees against the criminal acts of third persons. First, i f the absence of any prior similar incidents is dispositive

,

“ the first victim alway s 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? ” ( I d. at p. 126.) “ Third, the rule erroneously equates foreseeability of a particular act with previ ous occurrences of similar acts,” and our Supreme Court

“ h as 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 ’ rul e improperly remov es 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) 13419

Cal.App.2d 158 ( Porter ) , in which the court affirmed a ju dgment
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 hab it 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 racetra ck 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. M oreover, 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 for e seeable because no similar incidents had
occurred before. Bicycle Casino also suggest s it had no duty here because Huang was injured as a result of the wro ngful conduct of third parties (the unidentified passengers who knocked Huang down). Although

, “as a general matter, there is no duty to act to protect
other s fr om the conduct of third parties ” ( De lgado 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 37 7, 402 ) . I n other words, a duty is imposed when such third party cond uct 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 unid entified20

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 catego rical no

- duty ru le 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

t his case.
b. Other Public Policy Considerations The remaining policy considerations are “ ‘t he 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. 47 3 .) Along with foreseeability, the extent of the burden to the defendant i s the crucial c onsideration. ( Castaneda v. Olshe r (2007) 41 Cal.4th 1205, 1213 .) Here, t he 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 argue s 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 ho st 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 waiting21

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, n otice 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 C asino contends suc h 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. T here 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

cr eating 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 m otor vehicle, should be created

. ”].)
The other public policy fac tors also do not support the
creation of a no

- duty rule here. A shuttle op erator who negligently board s a large group of passengers does not act in an especially blameworthy manner

, but such conduct is not particularly encouraged or authorized either. ( C abral, supra , 5122

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 o r 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. ( Pedeferr i, supra , 216 Cal.App.4th at p. 368.)
Overall

, we conclude an exception to the duty of ordinary
care is not “ ‘ cle arly supported by public policy ’ ” ( Cabral, supra

, 51 Cal.4th at p. 781 ) , nor do foreseeabili ty consideration s support

an exce ption. 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 causati on 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 iss ue consisted of bare
assertio ns 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 crow d. 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, t he
trial court susta ined 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 knocke d Huang over, Bicycle Casino is not necessarily resolved of liability. “ A defendant’s negligent conduct may
combine with another facto r 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 har m 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 un foreseeable and the injury it caused was un fo reseeable 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 H u ang’s24

injury as a matter of law. T here are genuine issues of mat erial fact regarding causation here.
DISPOSITION The judgment is r eversed. 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.