Jing Huang v. Bicycle Casino, Inc.

Filed 10/19/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

JING HUANG, B266350

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No. BC511867)

v.

THE BICYCLE CASINO, INC.,

Defendant and

Respondent.

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.

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

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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.”

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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

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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

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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.

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(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. Haidinger-

Hayes, 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

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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

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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.)

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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

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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.

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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].’ ”

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(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

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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.’ ”

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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 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 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.)

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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 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 for

16

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.

17

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

18

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

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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

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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

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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.

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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

23

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.

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