Northern California Record

Tuesday, February 18, 2020

Appeals court rules in favor of BART in 2017 platform robbery case behind common carrier law

State Court

By Rich Peters | Jan 27, 2020

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SAN FRANCISCO – A state appeals court on Jan. 15 ruled that a woman who was robbed at a Bay Area Rapid Transit (BART) station cannot hold the public transit agency accountable because the crime took place while she was on the platform, not the train.

The lawsuit, filed by plaintiff Kathryn Cissney, stems from an April 2017 Coliseum Station robbery in which a large group of youths jumped the fences and gates and rushed her, as well as others waiting for their train, beating her and stealing her cellphone before jumping on a train and attacking others.

First District Court of Appeal Judge Alison Tucher said in a 3-0 ruling that Cissney could not hold BART accountable because “the relationship of carrier and passenger had not yet been established.”

Brian S. Kabateck | Kabateck LLP

Tucher cited previous state appellate court ruling, observing that a passenger “is exposed to countless hazards” while traveling, and is “wholly in (the) charge of the carrier,” but does not face those dangers while waiting in the station.

Tucher explained that under California case law, “standing on a BART platform waiting for a train to arrive does not establish that the carrier, before it has taken affirmative steps to accept a passenger onto a train, has a heightened duty to protect that prospective passenger from risks that are not incident to the journey itself.”

Los Angeles attorney Brian Kabateck said the ruling might not make much of an impact.

“First of all, it’s an unpublished, meaning it has no precedential value for other cases,” Kabateck, founder and managing partner of Kabateck LLP, said. “Secondly, it is very narrow because the only theory the plaintiffs were apparently pursuing in the case was the theory of common carrier and common carrier means that when you’re on a bus, or a train, or an airplane the operator has a heightened standard of care when it comes to taking care of its passengers.”

Kabateck explained that a common carrier is essentially given a “monopoly” to run a train or run a bus service, and in exchange for that it has a much higher standard of care for their passengers.

“For whatever reason in the case, and I don’t know why, the plaintiffs only pursued a common carrier theory and the court held that until you’re actually on BART, BART is not subject to a common carrier subject of care.”

It is unknown whether or not Cissney will ask the Supreme Court to review her case.

BART declined to comment.

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First District Court of Appeal CaliforniaSf Bay Area Rapid Transit District

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