Bus, Train, Plane & Common Carrier Accidents

In July 2018, a tragic accident occurred in Missouri when a Ride the Ducks tourist boat sank, leaving 17 people dead. In May 2019, two sightseeing planes carrying Royal Princess cruise passengers collided off the coast of Alaska, killing six. In November 2019, a massive bus and truck crash sent 19 people to Virginia hospitals.

Accidents like these that involve a “common carrier” are subject to laws and regulations that differ from auto and truck accidents. A common carrier is one that takes passengers typically for a fare. Examples include taxicabs, trains, ferries, buses, planes, and even elevators. Virginia common law treats these common carriers differently than ordinary drivers because “the passenger entrusts his safety to the carrier, who alone knows the condition of his vehicle and the dangers of the neighborhoods and environs through which the routes of travel may lie.” Taboada v. Daly Seven, Inc., 271 Va. 313, 325 (2006). This special relationship and resulting imbalance of knowledge warrants a higher duty.

Common carriers have the duty to use the highest degree of practical care for the safety of their passengers. They are held liable for the “slightest negligence” that causes injury that could have been foreseen and guarded against.

When the carrier fails in this duty of care, it may be liable for injuries suffered by passengers due to its negligence. A common carrier also has a duty to warn passengers of known dangers in their transportation, like standing in bus aisles, protect passengers from assault by employees, and to provide special protection for incapacitated passengers.

Common carriers are regulated by the state and are required to be licensed and insured. Since the duty required of common carriers is so high—and since they are sophisticated parties with frequently vast insurance coverage—the carriers act quickly after an accident. They have investigators that are on retainer and are ready to respond to a scene as soon as an accident happens. Their adjusters and risk managers immediately begin to collect information about the accident. Their agents capture images and videos, interview witnesses, meet with investigators and do all they can to minimize their client's exposure and to prepare for any possible claims. You need to move just as quickly to protect your rights.

While you are recovering from your injuries, you need someone on your side fighting to collect the same information. Your attorney can speak with emergency personnel and witnesses while the scene is fresh in their memories. They can ensure that important documentary and physical evidence is secured and preserved for potential litigation.

Your lawyer will also make sure that you do not unknowingly hurt your own case. As soon as an accident happens, the common carrier or its insurance company will want to get you on the record. They will ask questions that are intentionally designed to help them build their defenses. Above all, you need an attorney to ensure that your case isn’t over before it starts.

In our experience, common carriers often rely on a defense of “assumption of risk.” In Shamblee v. Virginia Transit Co., 204 Va. 591, 593–94 (1963), the Supreme Court of Virginia noted that “[p]assengers assume all risks which are necessarily incidental to their trip.” Common carriers seize unto this language to argue that a plaintiff’s injury was merely “incidental.” The battle in these cases, then, frequently falls to questions of whether the incident or occurrence that caused the injury was ordinary or unusual. Navigating these issues is difficult, which is why those injured by common carriers benefit from the help of an attorney.

Contributory negligence is a doctrine that can negate a plaintiff’s claim. Simply stated, if a plaintiff was negligent and that negligence at all contributed to the accident, the plaintiff recovers nothing for their injuries. If the jury believes that the defendant is 99 percent at fault and the plaintiff’s fault is merely 1 percent, the plaintiff loses and cannot recover.

Contributory negligence is an arcane doctrine. Only five states continue to have this rule and, unfortunately, Virginia is one of them. Other states have some form of what is called “comparative negligence,” where the jury weighs the respective “faults” of the plaintiff and the defendant. Like assumption of risk, contributory negligence is a difficult issue to navigate.

Frei, Mims and Perushek know how to navigate complicated common carrier cases and have helped hundreds of victims injured in serious transportation accidents. See our case history files.

• Train derailment/wrongful death suit wins $4.6 million and new safety regulations
• Case against international airline wins compensation for injured passenger
• $3.05 million for I-95 Crash Victim
• Jury awards $1.5 million for Brain Injury from collision. Defense claimed victim was faking