The Nevada Supreme Court recently clarified that Nevada case law imposes a heightened duty of care on a common carrier toward its passengers that applies only to transportation-related risks. For all other non-transportation related risks, the common carrier only owes a duty of reasonable care.
In First Transit v. Chernikoff, 135 Nev. Adv. Op. 32 (Aug. 1, 2019), the Nevada Supreme Court was faced with a matter that involved a 51-year old intellectually disabled man who choked to death on a sandwich while riding on a paratransit bus operated by First Transit, Inc. The decedent’s parents sued First Transit and the bus driver for negligence, and alleged that as a common carrier, defendants owed the highest degree of care to monitor and assist the decedent passenger while riding the bus. The parents further argued that the bus driver was negligent in not adequately checking on the decedent, preventing him from eating, and for how the bus driver rendered aid once he noticed decedent’s distress.
At trial, the district court instructed the jury that First Transit had a heightened duty of care as a common carrier. The jury then returned a verdict finding First Transit liable for the decedent’s death and awarded his parents $15 million–$7.5 million for decedent’s pain and suffering and $7.5 million for the parents’ grief, sorrow, and loss of companionship.
On review, the Nevada Supreme Court analyzed long standing case law holding that a common carrier owes a heightened duty of care to its passengers for transportation related risks, and explained that “[c]ases following this traditional rule reason that a common carrier must exercise extraordinary care because ‘the passenger places himself or herself in the care of that common carrier and is unable to use his or her own faculties to prevent or avoid accidents and so is forced to rely on the common carrier to ensure that accidents are avoided.’” The Supreme Court went on to agree with the traditional rule, and held that a common carrier is not a general guarantor of its passengers’ safety, and rather, passengers must still exercise ordinary care for their own safety.
In applying the rule to the facts of the case before it, the Supreme Court determined that the only connection between First Transit and decedent choking is that the decedent just happened to be riding a First Transit bus when he choked. The Court reasoned that to “extend First Transit’s extraordinary duty to this situation would ‘go beyond the reason for the [common carrier] rule and treat public carriers specially for all purposes rather than for those risks associated with the conducting of its business.’” The Court went onto explain that the special relationship between First Transit, as a common carrier, and the decedent as a passenger, created a duty for First Transit to aid decedent when he suffered a medical event on the bus, but such duty of care was not extraordinary or heightened.
The Nevada Supreme Court ultimately reversed the judgment and remanded the case for a new trial.
While a common carrier does owe a passenger suffering from a non-transportation related risk a duty of care, such duty is not heightened or extraordinary. In matters involving injuries sustained while a passenger is riding on a common carrier, insurance carriers and defense counsel should be ready to defend against plaintiff’s attempts to characterize their conduct as transportation-related in order to implicate the heightened duty of care.
 See Sherman v. S. Pac. Co., 33 Nev. 385, 405, 111 P. 416, 424 (1910); Murphy v. S. Pac. Co.¸ 31 Nev. 120, 125, 101 P. 322, 325 (1909); Forrester v. S. Pac. Co., 36 Nev. 247, 276, 134 P. 753, 761 (1913).