Carmen LOPEZ, et al., Plaintiffs and Appellants, v. SOUTHERN CALIFORNIA RAPID TRANSIT DISTRICT, Defendant and Respondent.
This case presents a difficult and important issue. Because the Southern California Rapid Transit District is a public corporation, must the victims of criminal violence on board its buses be denied recovery for the RTD's breach of duty to “use the utmost care and diligence for their safe carriage”? (Civ.Code, § 2100.) We hold RTD is not immunized from fulfilling the same duty which would be imposed on a private company operating those same buses.
FACTS AND PROCEEDINGS BELOW
Plaintiffs appeal from a judgment dismissing their complaint following the sustaining of defendant's demurrer without leave to amend.
For purposes of appeal we accept as true the properly pleaded factual allegations of the complaint. (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 746, 167 Cal.Rptr. 70, 614 P.2d 728.) Furthermore, the allegations of the complaint must be liberally construed with a view to attaining substantial justice among the parties. (Code Civ.Proc., § 452; King v. Central Bank (1977) 18 Cal.3d 840, 843, 135 Cal.Rptr. 771, 558 P.2d 857.)
Plaintiffs allege the following facts. Defendant, Southern California Rapid Transit District, (hereafter “RTD”) is a public corporation engaged in business as a common carrier for hire transporting members of the general public in Los Angeles County.
Carmen and Carla Lopez, Yolanda and Jose De Dios and Zenaida Arce were riding as paying passengers on one of defendant's buses at about 6:40 in the evening near LaBrea Avenue and Venice Boulevard in Los Angeles. At that time a fight broke out among some of the passengers on the bus. The driver of the bus knew that the fight was taking place but “failed to take any precautionary measures.” The five plaintiffs sustained injuries as a result of the fight.
Plaintiffs further allege the RTD knew violent incidents occurred daily or weekly on board its buses and that there had been previous assaults on passengers and operators of buses on this particular route. Before this particular altercation broke out, the operator was aware that a group of juveniles had boarded the bus and were harassing other passengers.1
Defendant demurred to plaintiffs' first amended complaint on the ground, inter alia, that it failed to state a cause of action; specifically that the RTD owed no duty of care to plaintiffs and that it is immune from liability by reason of Government Code section 845.2 The trial court sustained the demurrer without leave to amend on the ground the RTD is immune from liability under the facts of this case by reason of section 845.
I. RTD OWED A DUTY OF CARE TO PLAINTIFFS.
We first consider defendant's claim that it had no duty to protect plaintiffs from an assault and battery on board its bus. No question of statutory immunity arises until it is determined that the defendant otherwise owes a duty of care to the plaintiffs and thus would be liable in the absence of immunity. (Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298, 307, 191 Cal.Rptr. 704.)
The duty owed by a common carrier to its passengers is set forth in Civil Code section 2100:
“A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.”
Section 2100 has been held to impose a duty on a common carrier to protect its passengers from assault by fellow passengers. (Terrell v. Key System (1945) 69 Cal.App.2d 682, 159 P.2d 704.) There the court stated:
“The duty of a carrier of persons for reward is codified in Civil Code, section 2100. In general, such carriers must exercise the utmost care and diligence for the safety of their passengers consistent with the character and mode of conveyance adopted and the practical operation of the carrier's business. (4 Cal.Jur. § 87, pp. 931–934.) While there is some diversity among the authorities in other jurisdictions as to the degree of care required of carriers for hire to protect their passengers from the assaults of fellow passengers, in a large majority of American states whose courts have passed on the question, it is held that the carrier is required to exercise the same high degree of care for that purpose as it is bound to generally. (Citations omitted.) ․ We can see no reason not to apply the rule of Civil Code, section 2100 that ‘A carrier of persons for reward must use the utmost care and diligence for their safe carriage’ to the recognized duty of a carrier to protect a passenger from assaults by fellow passengers.” (Id. at pp. 684–686, 159 P.2d 704.)
The Terrell opinion makes it clear that section 2100 did not enact a rule of strict liability.
“This duty can only arise if in the exercise of the required degree of care the carrier has or should have knowledge of conditions from which it may reasonably be apprehended that an assault on a passenger may occur ․ and has the ability in the exercise of that degree of care to prevent the injury.” (Id. at p. 686, 159 P.2d 704, citations omitted.)
The complaint in the case at bar meets the pleading requirement of Terrell. It alleges that the driver of the bus knew that a group of juveniles had boarded the bus and were harassing the passengers; the RTD knew violent incidents occurred on its buses with regularity; and knew there had been previous assaults on passengers on this particular route.
Furthermore, a special relationship existed between the plaintiffs and the RTD which, while not precluding the application of sovereign immunity principles, has an important impact on their application.
In Johnson v. County of Los Angeles, supra, 143 Cal.App.3d 298, 308, 191 Cal.Rptr. 704, we alluded to the common law duty to control the conduct of another when the defendant stands in a special relationship to the foreseeable victim of such conduct. The carrier-passenger relationship is such a special relationship. (Prosser, Law of Torts, supra, at pp. 174–175, fn. 68, Rest., Torts 2d §§ 314A, 315 and Comment at p. 123, and see Terrell v. Key, supra.)
The relationship between the RTD and its passengers is distinguishable from the relationship between the police and the public. A law enforcement officer's duty to protect the citizenry is a general duty owed to the public as a whole. (South v. Maryland (1856) 59 U.S. 396, 403, 15 L.Ed. 433.) The victim of a crime that the police might have prevented through reasonable diligence cannot recover because, absent a special relationship creating a special duty, the police do not owe the victim a duty of care. (See, e.g., Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 9–10, 120 Cal.Rptr. 5 and Note, Police Liability For Negligent Failure To Prevent Crime (1981) 94 Harv.L.Rev. 821, 824.) In contrast, the RTD's duty is to a specific group: its passengers. These passengers have accepted RTD's offer of transportation and have placed themselves in the care and custody of the RTD. (Cf. Riley v. Davis (1922) 57 Cal.App. 477, 481, 207 P. 699; Grier v. Ferrant (1944) 62 Cal.App.2d 306, 310–311, 144 P.2d 631.) And while the risk of crime is common to all citizens, the danger is enhanced for bus passengers who may be, in effect, sealed in a moving steel cocoon. They have no say as to who else may be admitted onto the bus and they may have no means of avoiding another passenger bent on attack. The means of summoning help and the means of escape may be in the exclusive control of the bus driver.
We conclude the plaintiffs' dependence on the RTD for their safety gives rise to a special relationship between the parties in the case at bar. (Cf. Mann v. State of California (1977) 70 Cal.App.3d 773, 779–780, 139 Cal.Rptr. 82; Rest. 2d Torts (1965) § 314A, com. b, c; Fleming, Law of Torts (4th ed. 1971) p. 143.) 3 We recognize that another division of this court has held no special relationship exists between a common carrier and its passengers. (Hernandez v. Southern California Rapid Transit District (1983) 142 Cal.App.3d 1063, 1067, 191 Cal.Rptr. 436.) In that case plaintiff brought an action for wrongful death against the RTD alleging that her son, a passenger on an RTD bus, was killed by another passenger on the bus. Without discussing or citing any authority on the issue, the court simply stated that plaintiff “did not and cannont [fn] allege the existence of a ‘special relationship’ that would take her cause of action outside the breadth of Government Code section 845.” (Ibid., footnote omitted.) For the reasons set forth above, we disagree with the holding in Hernandez. The authorities we have cited firmly establish the existence of a special relationship between a common carrier and its passengers which gives rise to a duty on the part of a carrier to protect a passenger from assaults by fellow passengers.
As noted in Terrell, this duty only arises if two conditions are met. First, in the exercise of reasonable skill and the utmost care and diligence the carrier knew or should have known of conditions from which it could reasonably conclude that an assault on a passenger may occur. Second, in exercising the degree of care imposed by section 2100 the carrier has the ability to prevent the injury. (69 Cal.App.2d at p. 686, 159 P.2d 704.)
II. RTD IS NOT IMMUNE FROM LIABILITY BECAUSE OF GOVERNMENT CODE SECTION 845.
A. The Facts Alleged in the Complaint Do Not Give Rise to the Defense of Immunity From Failing to Provide Police Protection.
Where an affirmative defense appears on the face of the complaint that defense may be raised by a demurrer for failure to state a cause of action. (Code Civ.Proc., § 430.10(e) and see, generally, Grossman-Van Alstyne, 9 Cal. Procedure, Pleading—Civil Actions (2nd ed. 1981) §§ 1271–1272, pp. 6–9.)
In the case at bar, plaintiffs are not alleging expressly that defendant failed to provide “police protection services.” Plaintiffs' allegations, fairly construed, are that defendant failed in its duty to “provide everything necessary” for plaintiffs' “safe carriage.” (Civ.Code, § 2100.) This duty is not the functional equivalent of a duty to provide guards riding shotgun on defendant's buses. Something more, something less or something altogether different may be necessary depending on the circumstances. There are a number of steps defendant might take to help keep passengers safe from crime on board its buses. These steps include providing alarm lights (Veh.Code, § 25275.5), radio communication between the driver and local police or bus headquarters, reserving the seats near the driver for particularly vulnerable passengers, and refusing passage to persons the driver has reason to know have previously engaged in violent conduct on defendant's buses. The test, as stated in section 2100, is whether the carrier “exercise[d] ․ a reasonable degree of skill.”
Whether these or other steps were taken or could have feasibly been taken under the circumstances of this case goes to the question of breach of duty; a question to be decided in subsequent proceedings. We mention the foregoing examples merely to make the point that plaintiffs' complaint does not raise the affirmative defense of immunity under section 845 merely by alleging that plaintiffs were the victims of a crime on board defendant's bus.
B. RTD Is Not Immune From Liability by Reason of Section 845 for Failing to Adequately Protect Its Passengers From Assault by Fellow Passengers.
Every failure by a government entity to prevent harm is not automatically immunized by section 845. (See, e.g., Mann v. State of California, supra, 70 Cal.App.3d at p. 778, 139 Cal.Rptr. 82; Thompson v. County of Alameda (1980) 27 Cal.3d 741, 747, 167 Cal.Rptr. 70, 614 P.2d 728; Green v. City of Livermore (1981) 117 Cal.App.3d 82, 87–88, 172 Cal.Rptr. 461.)
We believe the issue of police protection immunity injected by the RTD and relied on by the trial court is a red herring. Plaintiffs do not urge nor did we hold in the preceding section (supra, pp. 7–9) that the RTD owed a duty to provide plaintiffs “police protection services.” The RTD's liability does not rest on the presence or absence of police protection on board its buses. It arises from a duty imposed by Civil Code section 2100 on every common carrier to anticipate that which is reasonably foreseeable and to prevent that which is reasonably preventable in the way of violent injury to its passengers. (Terrell v. Key System, supra, 69 Cal.App.2d at pp. 684–686, 159 P.2d 704.) The RTD therefore is liable when it fails to provide its passengers the protection to which they are entitled by virtue of this obligation. The extent of the protection owed plaintiffs and whether it was provided are fact questions. (Id. at p. 686, 159 P.2d 704; cf. Gomez v. Ticor (1983) 145 Cal.App.3d 622, 633, 193 Cal.Rptr. 600.) A jury might find that the measures required to discharge the duty imposed by section 2100 included stationing a security guard on buses traveling the route traveled by plaintiffs. If the jury made such a finding and the finding was supported by substantial evidence, defendant would be liable for breaching its duty to “exercise ․ a reasonable degree of skill,” to “use the utmost care and diligence for [its passengers] safe carriage” and to “provide everything necessary for that purpose.”
The fact this duty of care might require the RTD to provide police protection service does not trigger governmental immunity under section 845.
Defendant RTD is under a duty to “use the utmost care and diligence” for its passengers' safety and “must provide everything necessary for that purpose.” (Civ.Code, § 2100.) It is obvious from this statutory language the RTD owes more than an ordinary degree of care to its passengers. Rather, it is held to “the highest degree of care,” Wilson v. City & County of S.F. (1959) 174 Cal.App.2d 273, 277, 344 P.2d 828, and “required to do all that human care, vigilance, and foresight reasonably can do under all the circumstances.” (Acosta v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 19, 27, 84 Cal.Rptr. 184, 465 P.2d 72.)
In California all governmental tort liability must be based on statute. (Gov.Code, § 815; Duarte v. City of San Jose (1980) 100 Cal.App.3d 648, 653, 161 Cal.Rptr. 140.) 4 There is no requirement the statute imposing liability must provide on its face that it is applicable to public bodies. “Rather, a liability is deemed ‘provided by statute’ if a statute defines the tort in general terms.” (Levine v. City of Los Angeles (1977) 68 Cal.App.3d 481, 487, 137 Cal.Rptr. 512; and see Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 933, 101 Cal.Rptr. 568, 496 P.2d 480; Van Alstyne, California Government Tort Liability Practice Cont.Ed.Bar 1980, § 2.7, p. 38.) We find the language of section 2100 of the Civil Code sufficient to impose liability on the RTD for breach of the duty to protect its passengers from assault by fellow passengers.
We turn, then, to the question whether RTD's liability is subject to the police protection immunity of section 845.5
The fact plaintiffs' suit is based on a specific statutory duty distinguishes this case from other cases where liability depended, at least implicitly, on defendant's failure to provide adequate police protection. (See, e.g., Hayes v. State of California (1974) 11 Cal.3d 469, 113 Cal.Rptr. 599, 521 P.2d 855 [plaintiff beaten at night on a campus beach of the state university]; Stone v. State of California (1980) 106 Cal.App.3d 924, 165 Cal.Rptr. 339 [plaintiffs beaten by a gang of youths at state-owned fairgrounds]; Moncur v. City of Los Angeles (1977) 68 Cal.App.3d 118, 122, 137 Cal.Rptr. 239 [plaintiffs injured in bomb explosion at city airport].)
Moreover, the fact this statutory duty arises outside the Tort Claims Act precludes a knee-jerk application of the Act's immunities. While Government Code, section 815(b) provides that liabilities established by the Tort Claims Act are subject to any statutory immunity, “[n]o similarly explicit language declares that the liabilities imposed outside the Tort Claims Act are subject to any immunity established by the act.” (Duarte v. City of San Jose, supra, 100 Cal.App.3d at p. 656, 161 Cal.Rptr. 140; emphasis in original.) Faced with this circumstance we must determine the statutory objectives of the liability and immunity provisions and attempt to find a rational basis for harmonizing two potentially conflicting laws. (Consumers Union of U.S., Inc. v. California Milk Producers Advisory Bd. (1978) 82 Cal.App.3d 433, 446, 147 Cal.Rptr. 265 and cases cited therein.)
In Duarte v. City of San Jose, supra, the court was confronted with a statute holding a public entity liable for injuries caused by the negligent operation of a motor vehicle by its employee (Veh.Code, § 17001), and a statute immunizing a public entity from liability for any injury caused by a person escaping arrest. (Gov.Code, § 845.8(b)(2).) Edward Duarte was injured by a person escaping arrest in a stolen police car with other police cars in high speed pursuit. (100 Cal.App.2d at pp. 642, 656, 161 Cal.Rptr. 140.) The court's approach to reconciling the conflicting provisions of sections 17001 and 845.8 was “to consider whether the liabilities imposed by legislation outside the [Tort Claims Act] serve a purpose that is frustrated by an immunity under the act. If so, ․ it is reasonable to conclude that the statutory liabilities must prevail.” (Id., at p. 656, 161 Cal.Rptr. 140.) The court found the purpose of Vehicle Code section 17001, to hold a public entity financially accountable for its employees' torts committed with a motor vehicle during the scope of their employment, would be thwarted by the application of section 845.8. (Ibid.) The court then examined the objective underlying section 845.8: “the nature of the precautions necessary to prevent escape of prisoners ․ should be determined by the proper public officials unfettered by any fear that their decisions may result in liability.” (Ibid.) The court found this public policy would not be adversely affected by holding the city liable under the facts of the case. (Id. at p. 657, 161 Cal.Rptr. 140.)
The same analytical process also resulted in denial of liability in State of California v. Superior Court (1974) 12 Cal.3d 237, 115 Cal.Rptr. 497, 524 P.2d 1281. There the statute imposing liability, Code of Civil Procedure section 1095, allowed damages against a government body in a mandamus action. Sections 818.4 and 821.2 immunize a public entity and public employee from liability for failure to issue a permit. The real party in interest sought review of the Coastal Commission's denial of a permit under Code of Civil Procedure section 1094.5 and damages in excess of fourteen million dollars under section 1095. (Id. at p. 244, 115 Cal.Rptr. 497, 524 P.2d 1281.) The court found that Code of Civil Procedure section 1095 “merely authorizes damages in a mandamus proceeding where such damages are otherwise appropriate” (id. at p. 246, 115 Cal.Rptr. 497, 524 P.2d 1281); that the purpose of administrative mandamus, to inquire into the validity of a final administrative order, would not be thwarted by application of sections 818.4 and 821.2 (id. at pp. 245–246, 115 Cal.Rptr. 497, 524 P.2d 1281); and, that imposing liability on the authority of section 1095 would be tantamount to a repeal of sections 818.4 and 821.2 “since a cause of action for damages would be appropriate each time a permit was denied if the demand for damages was combined with a petition for writ of mandate to compel the issuance of the permit.” (Id. at p. 246, 115 Cal.Rptr. 497, 524 P.2d 1281.)
In the case at bar, the extraordinary duty of care imposed on a common carrier by section 2100 reflects a legislative judgment that the risk of harm to passengers is great. (See Union Traction Co. v. Berry (1920) 188 Ind. 514, 121 N.E. 655, 658; Frederick v. City of Detroit, Department of Street Railways (1963) 370 Mich. 425, 121 N.W.2d 918, 921; Prosser, Law of Torts (4th ed. 1971) 180–181.) It has long been recognized that one of the risks of public transportation is assault on the passengers. (See, e.g., King v. Ohio & M. Ry. Co. (E.D.N.Y.1884) 22 F. 413, 414 and see generally Annot. 15 A.L.R. 868–869.) Indeed, the common expression “riding shotgun” arose from the practice of posting an armed guard on stagecoaches to protect passengers and their property from harm. (Urdang (ed.) Picturesque Expressions: A Thematic Dictionary (1980) p. 274.)
The apparent purpose of Civil Code section 2100 is to hold a common carrier accountable for its negligence or the negligence of its employees in maintaining the safety of the carrier's passengers. (Scarborough v. Urgo (1923) 191 Cal. 341, 346, 216 P. 584.) The statute makes no distinction between publicly owned and privately owned carriers. In this case, had the carrier been privately owned there is no question it could be held liable for plaintiffs' injuries. (Terrell v. Key System, supra, 69 Cal.2d at p. 685–686, 159 P.2d 704.) To immunize this alleged negligence because the defendant is a public corporation would thwart the purpose of section 2100. (Cf. Duarte v. City of San Jose, supra, 100 Cal.App.3d at p. 656, 161 Cal.Rptr. 140.)
A generally worded code section such as Civil Code section 2100 applies to governmental bodies if no impairment of sovereign powers would result. (Nestle v. City of Santa Monica, supra, 6 Cal.3d at p. 933, 101 Cal.Rptr. 568, 496 P.2d 480; Flournoy v. State of California (1962) 57 Cal.2d 497–499, 20 Cal.Rptr. 627, 370 P.2d 331.)
The sovereign power implicated by section 845 is the political decision-making which determines whether police protection should be provided at all, and, if so, the extent to which it should be provided. (4 Cal.Law Revision Com.Rep. (1963) 860.) “[T]he section was designed to prevent political decisions of policy-making officials of government from being second-guessed by judges and juries in personal injury litigation.” (Mann v. State of California, supra, 70 Cal.App.3d 733, 778, 139 Cal.Rptr. 82.) Undoubtedly the potentially disastrous fiscal consequences of liability for failure generally to prevent crime are also a consideration underlying section 845. (See, e.g., Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 808, 75 Cal.Rptr. 240; et passim, Comment, Rehabilitation Of The Victims Of Crime: An Overview (1973) 21 UCLA L.Rev. 317, 333–335; cf. Van Alstyen, Government Tort Liability: A Public Policy Prospectus (1963) 10 UCLA L.Rev. 463, 503 [discussing immunity from failure to provide fire protection].)
But once a government decides to run a bus line it is required to make the same business judgments that a private bus company must make. The government bus line is also subject to the same operational expenses as the privately owned bus line including the cost of providing security for the passengers.6
Earlier in this opinion we held that a special relationship existed between the parties based on the plaintiffs' dependence on RTD for their safe transportation. (Supra, pp. 7–8.) Contrary to the suggestion of our colleagues in Hernandez v. Southern California Rapid Transit Dist., supra, 142 Cal.App.3d at 1067, 191 Cal.Rptr. 436, it is not correct that the finding of a special relationship allows liability to be imposed “irrespective of any grant of immunity set forth in Government Code section 845.” Our Supreme Court has branded this theory a “fallacy.” (Williams v. State of California (1983) 34 Cal.3d 18, 22, 192 Cal.Rptr. 233, 664 P.2d 137.) The correct reasoning, according to the court, is to consider the question of a special relationship in the context of the threshold question of duty, “ ‘beyond which remain the immunity barriers ․’ ” (Id. at p. 23, 192 Cal.Rptr. 233, 664 P.2d 137 citing Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698 at p. 706, 141 Cal.Rptr. 189.)
On the other hand, although the existence of a “special relationship” does not obviate the need to consider whether respondents are immune from liability, (Williams, supra, 34 Cal.3d at pp. 22–23, 192 Cal.Rptr. 233, 664 P.2d 137) it is highly relevant to the outcome of that consideration. Thus, in Johnson v. County of Los Angeles, supra, we found the special relationship between the county and the plaintiffs imposed a duty on the county which encompassed no “basic policy decisions” and, therefore, was not discretionary within the meaning of Government Code section 820.2. (143 Cal.App.3d at pp. 312–313, 191 Cal.Rptr. 704.)
As the legislative history of section 845 makes clear, it is in essence a discretionary immunity statute. (4 Cal.Law Revision Com.Rep. (1963) pp. 827, 860.) This immunity governs the basic policy determination regarding police protection service. (Van Alstyne, Cal. Government Tort Liability Practice, supra, at p. 659; Note, Stone v. State of California: The King Can Do No Wrong (1980) 8 Western St.U.L.Rev. 75, 84.) As such it should be given the same restricted scope as section 820.2; affording immunity only for “basic policy decisions.” (Johnson, supra, 143 Cal.App.3d at p. 312, 191 Cal.Rptr. 704; and see Mann v. State of California, supra, 70 Cal.App.3d 773, 778, 139 Cal.Rptr. 82 holding section 845 inapplicable where a peace officer had undertaken to protect the plaintiff from physical harm.)
By voluntarily undertaking the business of a common carrier, the RTD assumed the common law duty to protect the plaintiffs from harm at the hands of their fellow passengers. Moreover, the RTD became subject to the specific mandatory duty imposed by California statute on every common carrier to use the utmost care and diligence for its passengers' safe carriage and “provide everything necessary for that purpose.” (Civ.Code, § 2100.) As we have already noted, we do not construe section 2100 as imposing a mandatory duty to provide “police protection” or any particular type of protection on RTD buses. The RTD's duty is to provide the same degree of protection that a private bus company must provide under similar circumstances.
Thus, the basic policy decisions contemplated by section 845 have already been made for the RTD by common law precedent and statute. The decisions left to it are in the nature of operational/ministerial decisions, i.e., how to carry out that policy. These decisions are not immunized by section 845. In Mann v. State of California, supra, 77 Cal.App.3d at pp. 778–779, 139 Cal.Rptr. 82, a peace officer left the plaintiff in “a dangerous, unprotected position” with knowledge of a foreseeable risk of harm from third persons and resumed his routine patrol. The court found that the officer's action did not represent a carefully balanced policy decision but negligence in the performance of a ministerial task. Similarly, the plaintiffs in the case at bar allege that they were placed in a dangerous environment by defendant; that defendant knew of the danger to plaintiffs; and that defendant failed to use due care to protect plaintiffs.
We reemphasize we do not hold in this opinion that RTD is necessarily required to provide police protection in order to satisfy the duty of care imposed by 2100. As noted earlier, different and lesser measures often will suffice. Nor do we hold the situation as alleged in the present complaint required RTD to have provided police protection to the passengers of this bus. That is a breach of duty question properly determined by the jury. Furthermore, we do not mean to imply by this decision that section 2100 overrides the Tort Claims Act in general or any statutory immunity other than Government Code section 845. Our holding is a limited one; that RTD is not immunized by section 845 if and when circumstances would require a private bus company to provide such protection to its passengers.
The judgment dismissing the complaint is reversed. The plaintiffs shall be given the opportunity to amend their complaint in conformity with the views expressed herein.
1. These allegations are contained in Carmen Lopez' claim but are not incorporated by reference in the claims of the other four plaintiffs. Since these allegations are essential to state a cause of action, see discussion infra, p. 782, we assume their absence is due to inadvertence on the part of plaintiffs' counsel. On remand, plaintiffs will have the opportunity to amend the complaint.
2. Government Code section 845 provides:“Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.”
3. The existence of a special relationship between the parties, the specific statutory duty imposed by Civil Code section 2100 and the liability of a private defendant under the same circumstances all distinguish this case from Rodriguez v. Inglewood Unified School District (1984) 152 Cal.App.3d 440, 199 Cal.Rptr. 524 (1984) which held, absent a special relationship, a school has no duty to protect a student from the criminal conduct of non-students. (at 786, 199 Cal.Rptr. at p. 532.)
4. It is not correct, however, that “all California governmental tort liability flows from the California Tort Claims Act ․” (Keyes v. Santa Clara Valley Water Dist. (1982) 128 Cal.App.3d 882, 885, 180 Cal.Rptr. 586, quoted in Hernandez v. Southern California Rapid Transit Dist., supra, 142 Cal.App.3d at p. 1067, 191 Cal.Rptr. 436.) The cases cited by Keyes clearly state that immunity applies except as provided in the Tort Claims Act “or other statute.” (Williams v. Horvath (1976) 16 Cal.3d 834, 838, 129 Cal.Rptr. 453, 548 P.2d 1125; Galli v. State of California (1979) 98 Cal.App.3d 662, 674, 159 Cal.Rptr. 721.) The duty of care imposed on common carriers by Civil Code section 2100 has been applied in negligence actions against public entities before and after the enactment of the Tort Claims Act. (See, e.g., Wilson v. City & County of S.F., supra, 174 Cal.App.2d at p. 276, 344 P.2d 828; Acosta v. Southern Cal. Rapid Transit Dist., supra, 2 Cal.3d at p. 27, 84 Cal.Rptr. 184, 465 P.2d 72.)
5. Section 845 is the only source of immunity argued by RTD and relied upon by the trial court and, insofar as we can determine, the only immunity plausibly applicable to this case. Thus, our discussion of the RTD's immunity is restricted to an analysis of section 845 in the context of an assault on an RTD passenger. This discussion is not necessarily applicable to RTD's immunity under other laws or other circumstances.
6. In Rodriguez, supra, the court pointed out that a duty to protect students from criminal violence by non-students “would impose a substantial financial burden on the School District which operates on a limited budget ․ The establishment of a costly police force on school grounds calls for a political—not a judicial—determination.” (152 Cal.App.3d at p. 450, 199 Cal.Rptr. at p. 529–530.) In the case at bar, the RTD is not providing a constitutionally-mandated free public education. (Cal. Const., art. IX, § 5.) It is running a transportation business which is neither constitutionally-mandated nor free. Thus, the budgetary considerations that the court found persuasive in Rodriguez are of far less concern here.
JOHNSON, Associate Justice.
SCHAUER, P.J., and THOMPSON, J., concur.