IN THE SUPREME COURT OF TEXAS

════════════

NO. 18-0458

════════════

VIA METROPOLITAN TRANSIT, PETITIONER,

v.

CURTIS MECK, RESPONDENT

════════════════════════════════════════════════════

ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS

════════════════════════════════════════════════════

CHIEF JUSTICE HECHT, joined by JUSTICE GUZMAN, JUSTICE DEVINE, and JUSTICE BLAND, 

concurring.

The common law rule that common carriers owe their passengers a high degree of care

“that would be exercised by a very cautious and prudent person under the same or similar 

circumstances”1is an anachronism that Texas should abandon, as other courts2and the 

 

1

Speed Boat Leasing, Inc. v. Elmer, 124 S.W.3d 210, 212 (Tex. 2003) (per curiam) (quoting Dallas Ry. & 

Terminal Co. v. Travis, 78 S.W.2d 941, 942 (Tex. 1935)).

2 Nunez v. Prof’l Transit Mgmt. of Tucson, Inc., 271 P.3d 1104, 1109 (Ariz. 2012); Bethel v. N.Y. City 

Transit Auth., 703 N.E.2d 1214, 1218 (N.Y. 1998); Sebastian v. D.C., 636 A.2d 958, 962 (D.C. 1994); Frederick v. 

City of Detroit, Dep’t of St. Rys., 121 N.W.2d 918, 922 (Mich. 1963); Union Traction Co. of Ind. v. Berry, 121 N.E. 

655, 658 (Ind. 1919).
2

Restatement have.3The rule was widely adopted in the United States in the 19th century during 

the early days of motorized public transportation, largely regarded as “ultrahazardous”.4The 

rule’s rationale reflects its historical context. In 1887, in a case involving a street railway that ran 

over a 19-month-old child on its tracks, this Court wrote that “a carrier of passengers is bound to 

exercise a high degree of care” and “the highest degree of diligence” because of “the hazardous 

character of the business, and the fact that human life is imperiled by it.”5 Much has changed. 

The U.S. Department of Transportation reports that in 2017, transit riders made 10.1 billion trips6

with 241 fatalities7—about one death every 42 million trips. 

But the rule’s analytical problems are the principal reason to abandon it. As a general 

rule, “[a] person acts negligently if the person does not exercise reasonable care under all the 

circumstances.”8 But also, “[a]n actor in a special relationship with another owes the other a duty 

 

3 RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 40(a) (2010); RESTATEMENT (SECOND) OF 

TORTS § 314A(1) (1965).

4

See Nunez, 271 P.3d at 1109; Bethel, 703 N.E.2d at 1216 (noting the “primitive safety features” of steam 

railroads).

5 Galveston City Ry. Co. v. Hewitt, 3 S.W. 705, 707–708 (Tex. 1887) (stating the duty of common carriers 

“springs” from the “hazardous character of the [transportation] business, and the fact that human life is imperiled by 

it”).

6 U.S. DEP’T. OF TRANSP. BUREAU OF TRANSP. STATISTICS, TRANSPORTATION STATISTICS ANNUAL REPORT

1-1 (2018), https://www.bts.dot.gov/sites/bts.dot.gov/files/docs/browse-statistical-products-and-data/transportationstatistics-annual-reports/Preliminary-TSAR-Full-2018-a.pdf.

7

Id. at 6–9.

8 RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 3; RESTATEMENT (SECOND) OF TORTS § 283 

(“Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a 

reasonable man under like circumstances.”); Union Pac. R.R. Co. v. Nami, 498 S.W.3d 890, 896 (Tex. 2016) 

(“[N]egligence means the failure to use ordinary care—failing to do what a reasonable person like the defendant 

would have done under the same or similar circumstances—to protect against unreasonable risk of harm.”). 
3

of reasonable care with regard to risks that arise within the scope of the relationship.”9 One such 

relationship is “a common carrier with its passengers”.10 Unquestionably, a common carrier’s 

duty of reasonable care to its passengers is not the same as that of a private driver taking a friend 

on an errand. The risks that arise in a common carrier’s operation inform its duty. A public 

transit operator must act with the reasonable care such operators observe. But to say that the 

reasonable care required of a common carrier is “higher” than the reasonable care required of 

others transporting passengers is a useless and potentially misleading abstraction. 

Physicians must exercise ordinary care in the circumstances.11 “The circumstances to be 

considered include, but are not limited to, the expertise of and means available to the physician-

-defendant, the health of the patient, and the state of medical knowledge.”12 “[T]he traditional 

reasonable-person standard [takes] into account both the knowledge and skills of an ordinary 

person and ‘such superior attention, perception, memory, knowledge, intelligence, and judgment 

as the actor himself has.’”13 The standard applies differently to a neurosurgeon performing brain 

surgery than to a clinician treating scrapes and bruises. But it is the same standard. It is not 

higher for one or lower for the other. For both, it is reasonable care under the circumstances.

 

9 RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 40(a); RESTATEMENT (SECOND) OF TORTS § 

314A; see also Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 504 (Tex. 2017) (“a special relationship may 

sometimes give rise to a duty to aid or protect others”).

10 RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 40(a); RESTATEMENT (SECOND) OF TORTS § 

314A(1).

11 Jackson v. Axelrad, 221 S.W.3d 650, 655 (Tex. 2007).

12 Hood v. Phillips, 554 S.W.2d 160, 165 (Tex. 1977).

13 Jackson, 221 S.W.2d at 655–656 (quoting RESTATEMENT (SECOND) OF TORTS § 289).
4

“The [reasonable-care] standard provides sufficient flexibility, and leeway, to permit due 

allowance to be made . . . for all of the particular circumstances of the case which may 

reasonably affect the conduct required.”14 In other words, the ordinary negligence standard 

“necessarily takes into account” all the circumstances, which include, in the case of common 

carriers, any dangers intrinsic to public transportation and the passenger’s “dependence upon the 

carrier”.15

Texas courts have uniformly rejected referring to reasonable care for special risks as a 

higher duty of care. In West Texas Utilities v. Renner, the Texas Commission of Appeals held 

that “ordinary care” accurately described a utility’s duty to maintain a safe workplace even when 

the risks to employees were great.16

In applying the term “ordinary care” to a given state of facts, Judge Sharp, of the 

Commission of Appeals, in Dallas Railway & Terminal Co. v. Bankston, 51 

S.W.(2d) 304, said the meaning of the common-law rule of ordinary care is elastic 

enough to meet all emergencies; the amount of care depends upon the exigency 

confronted. It may require one thing to be done at one place, and something else 

at another place; the degree of care must be such as a person of ordinary prudence 

would exercise under like circumstances.17

Citing Renner, the court in Wendell v. Central Power & Light Co. noted that while a utility 

company’s duty of care is “commensurate with the danger” presented by its operations, that 

 

14 RESTATEMENT (SECOND) OF TORTS § 283 cmt. c. 

15 Nunez v. Prof’l Transit Mgmt. of Tucson, Inc., 271 P.3d 1104, 1109 (Ariz. 2012).

16 53 S.W.2d 451, 453–454 (Tex. Comm’n App. 1932, holding approved).

17 Id. at 454–455.
5

“standard does not impose a higher duty of care, it merely more fully defines what is ordinary 

care under the facts presented.”

18

In Prather v. Brandt, the court rejected the argument that a person using a firearm should 

be held to a “high degree of care”.19 The court observed: “There are few cases in Texas 

concerning the application of a high degree of care to a negligence cause of action. The courts 

tend to hold the definition on ordinary care is sufficient for the vast majority of negligence 

cases.”20 The court cited Winborn v. Mayo, which explained at greater length:

It is often said that a very high degree of care is required from all persons using 

firearms in the immediate vicinity of others, regardless of how lawful or innocent 

such use may be, or that more than ordinary care to prevent injury to others is 

required. Some courts refer to the degree of care required as a high degree of care; 

others say that the utmost or highest degree of care must be used to the end that 

harm may not come to others. More often the requisite degree of care is defined as 

such care as is commensurate with the dangerous nature of the firearm. The 

modern tendency of the courts is to apply the general rules of negligence where 

injury or death has been inflicted by missiles from a firearm. It is sometimes said 

that the rules of law governing actions for injury caused by the discharge of 

firearms are not different from the rules governing actions for any injury claimed 

to have been inflicted by the defendant. Here, as in other cases, the test of liability 

of the defendant is whether in what he did he failed to exercise reasonable or 

ordinary care. As in other cases, the reasonable care which persons using firearms 

are bound to take in order to avoid injury to others is a care proportionate to the 

probability of injury.21

 

18 677 S.W.2d 610, 620 (Tex. App.—Corpus Christi–Edinburg 1984, writ ref’d n.r.e.); accord First 

Assembly of God, Inc. v. Tex. Utils. Elec. Co., 52 S.W.3d 482, 491–492 (Tex. App.—Dallas 2001, no pet.); Tex. 

Utils. Elec. Co. Through Tex. Power & Light Div. v. Gold Kist, Inc., 817 S.W.2d 749, 753 (Tex. App.—Eastland 

1991), rev’d on other grounds, 830 S.W.2d 91 (Tex. 1992).

19 981 S.W.2d 801, 811 (Tex. App.—Houston [1st Dist.] 1998, pet. denied).

20 Id.

21 434 S.W.2d 207, 208 (Tex. Civ. App.—San Antonio 1968, no writ) (citations omitted).
6

In Anderson v. Market St. Developers, Ltd., the court recognized the peculiar dangers associated 

with elevators and escalators but refused to distinguish between ordinary care and a high degree 

of care.22 Rather, the court stated, “the common-law rule of ordinary care is elastic enough to 

meet all emergencies, and the amount of care depends upon the exigency confronted.”23

In Mount Pleasant Independent School District v. Estate of Lindburg, we refused to hold 

school bus operators to the heightened standard of care applicable to common carriers because 

schools are not in the business of transporting passengers.24 Student transportation, we said, was 

incidental to school operations. But we certainly did not suggest that operators were not required 

to take reasonable care to avoid the risks to child safety peculiar to school bus operations. It 

would make no sense to hold one passenger carrier to a higher standard of care than another, 

especially when the other’s passengers are children, merely because one is being paid.

The point is that the exceptional-care standard is unnecessary at best, and misleading at 

worst. It suggests that common carriers are to “exercise all the care, skill, and diligence of which 

the human mind can conceive”25 and invites the jury “to scrutinize the carrier’s conduct in an 

endeavor to find it defective”.26 Because a “very cautious, competent, and prudent person” 

exercising a high degree of care will rarely, if ever, cause an accident or injury, the exceptionalcare standard makes the carrier’s liability all but a foregone conclusion. We have said that 

 

22 944 S.W.2d 776, 779 n.1 (Tex. App.—Eastland 1997, writ denied).

23 Id.

24 766 S.W.2d 208, 213 (Tex. 1989).

25 Nunez v. Prof’l Transit Mgmt. of Tucson, Inc., 271 P.3d 1104, 1109 (Ariz. 2012).
7

“Texas public transportation companies are not insurers of the safety of their passengers.”27 Yet 

“by requiring that a carrier exercise more care than that reasonable under the circumstances . . . 

the [exceptional-care standard] approaches the insurance standard, as virtually every accident 

could be avoided if the carrier acted differently in some way.”28 Because the exceptional-care 

standard is likely to confuse jurors and improperly skew their decisions, it should be abandoned 

in favor of the reasonable care standard in traditional negligence law.29

As the Court recounts, in this case, Meck repeatedly stated throughout the trial that VIA 

owed a high duty of care. The evidence presented showed what a transit driver would do in the 

same circumstances. VIA objected to instructing the jury that negligence for VIA meant the 

failure to use a high duty of care. But assessing the entire record, the Court seems correct in 

concluding that an instruction that VIA owed reasonable care in the circumstances would not 

have changed the outcome.30

* * * * *

Common carriers should be held to the duty of reasonable care under the circumstances, 

the standard generally applicable. If a high duty of care was warranted in the 19th century, it is 

 

26 Bethel v. N.Y. City Transit Auth., 703 N.E.2d 1214, 1216 (N.Y. 1998).

27 City of Dallas v. Jackson, 450 S.W.2d 62, 63 (Tex. 1970).

28 Nunez, 271 P.3d at 1109.

29 See id. at 1107 (“[A]n attempt to explain the common carrier doctrine to a jury would be riddled with the 

prospect of confusion. . . . To hold that a common carrier must exert more than reasonable care under the 

circumstances not only serves no useful purpose; it is a hard concept to make sense of and one very likely to be 

misunderstood.” (cleaned up)).

30 Ante at 15.
8

no longer. The standard lacks meaning and is potentially prejudicial. Texas should join other 

states and the Restatement in abandoning it.

Nathan L. Hecht

Chief Justice

Opinion delivered: June 26, 2020