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Lowrey v. Montgomery Kone3/26/2002
carrier entail disparate elements of reasonable care. To hold that a 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. We believe that the time has come to discard the notion that a common carrier bears a higher duty toward its passengers than that of reasonable care under all of the circumstances. As the Bethel court observed, "there is no stratification of degrees of care as a matter of law. . . . Rather, 'there are only different amounts of care, as a matter of fact.'" 703 N.E.2d at 1215 (quoting Prosser and Keeton, Law of Torts ยง 34, at 210-11 (5th ed 1984)).
IV. CONCLUSION
For the foregoing reasons, we hold that the trial court erred in precluding Lowrey from relying upon the doctrine of res ipsa loquitur to advance her case against Montgomery Kone, but we uphold the trial court's determination that Montgomery Kone is not susceptible under the common carrier doctrine to a higher-than-ordinary standard of care. We remand for further proceedings consistent with this opinion.
CONCURRING:
WILLIAM F. GARBARINO, Judge
MARGARET H. DOWNIE, Judge Pro Tempore
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