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Mastriano v. Blyer9/14/2001
y risky involves not only an evaluation of the risks posed by the physical characteristics of the place of discharge, but also the foreseeable risks that may arise through the conduct of the passenger or a third party. See Restatement (Second) of Torts § 302A (1965) ("An act or omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the negligent or reckless conduct of the other or a third person."). If the carrier fails to exercise the reasonable care required by the circumstances, it may be liable for its passenger's injuries even though the passenger has stepped securely onto the street. Torres v. Salty Sea Days, Inc., 676 P.2d 512, 517 (Wash. Ct. App. 1984).
This rule does not in any way expand the carrier's duty to discharge its passengers at a reasonably safe location, nor does it impose a paternalistic obligation on the carrier to affirmatively protect a passenger after he or she has disembarked. Rather, it arises necessarily from the carrier's general duty in cases, such as the present one, involving passengers who are disabled due to intoxication.
I am not unmindful of the policy implications of this position, but, unlike the majority, I do not find them overwhelming. A carrier, pursuant to a reasonably implemented rule of operation, could simply refuse service to an apparently intoxicated individual who requested to be transported to an unsafe location such as his or her car. Carriers would continue to provide a socially beneficial service by transporting intoxicated individuals to safe locations such as the individual's home, a hospital, a bus or airline terminal, or even a bar without the threat of liability. In this way, the deterrent effect of the rule on a carrier's willingness to transport intoxicated individuals would be minimal and would only arise when the individual requested to be transported to an unsafe location.
I am satisfied that a jury could, if it heard nothing more than the evidence presented in the parties' statements of material fact, find that Groder knew that Dionne was disabled due to his intoxication and that discharging Dionne at his car exposed him to an unreasonable risk of harm that resulted in his death. I would vacate the summary judgment and allow the case to proceed to trial.
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