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FILED: March 16, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

BARBARA DEASON,

Plaintiff-Appellant,

v.

TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON,
an Oregon corporation,

Defendant-Respondent.

Multnomah County Circuit Court
080203064
A141873

Stephen K. Bushong, Judge.

Argued and submitted on August 18, 2010.

Mark Kramer argued the cause and filed the briefs for appellant.

Keith M. Garza argued the cause and filed the brief for respondent.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Rosenblum, Judge.

ROSENBLUM, J.

Affirmed.

ROSENBLUM, J.

Plaintiff, a passenger on a bus owned and operated by Tri-County Metropolitan Transportation District of Oregon (TriMet), brought this negligence action against TriMet after she fell and was injured when she stepped off the bus. She appeals from a general judgment in favor of TriMet following a jury trial and a jury verdict for TriMet. Plaintiff asserts that the trial court improperly instructed the jury that a common carrier is not ordinarily required to assist passengers in deboarding in the absence of special circumstances. According to plaintiff, the court's instruction "is contrary to Oregon law and impermissibly focused the jury on the issue of whether TriMet had a duty to assist deboarding passengers." We conclude that the instruction given by the court is consistent with the applicable standard of care for common carriers. Accordingly, we affirm.

On the morning of January 16, 2007, plaintiff, a 32-year-old woman in good health, was a passenger on a TriMet bus in downtown Portland. Although it was dry out when she started on her commute, by the time plaintiff boarded the bus it was snowing. In spite of the snow, plaintiff did not need assistance while getting on the bus, which was fairly full at the time she boarded.

During the drive, snow accumulated and began to cause traffic problems. As the bus was about to take a right turn, the operator observed another bus which was disabled in the snow at the intersection. At the instruction of a supervisor, the operator attempted to make the right turn anyway. However, the bus began to slide toward the disabled bus and was unable to make the turn. The bus continued to slide even when the driver put it in park and, for that reason, the bus was "ch[oc]ked"(1) to "hold [it] from sliding."

TriMet has an open door policy relating to disabled buses. That is, unless there are conditions that would make it dangerous to stay on the bus (i.e., a fire onboard), passengers are encouraged to remain on board. But so long as there are no conditions that would make it dangerous to exit (i.e., the bus is disabled on the freeway), passengers may nevertheless choose to get off of the bus. Absent extreme conditions, passengers are not forced to either get off or stay on the bus. Plaintiff contended that the passengers were instructed to get off of the bus in this case, an allegation that TriMet disputed. In any event, after the bus was stabilized many passengers began to exit, several of them telling the driver that they would "just walk it." Plaintiff was among those getting off of the bus.

The bus was a "low-floor" model, and could be "kneeled"--that is, the floor could be lowered below curb height. Before passengers alighted, the driver lowered the floor of the bus as far as it would go. There were several inches of ice and snow on the ground immediately outside, and plaintiff walked slowly, holding both handrails while getting off of the bus. She stepped off of the bus first with her right foot, then with her left, and then let go of the handrails. As plaintiff prepared to take another step, her left foot slipped out from under her and she fell on top of it, breaking her ankle in two places. The injury was serious; plaintiff's ankle had to be set with a metal plate and pins.

Plaintiff eventually filed an action against TriMet for damages, alleging that her injuries were the result of TriMet's negligence. Among other things, plaintiff contended that TriMet was negligent in failing to offer assistance to passengers after the bus became disabled and in failing to assist her in alighting from the bus. The case was tried to a jury and, prior to deliberations, the court instructed the jury as follows:

"TriMet is a common carrier. Under Oregon law a common carrier owes its passengers the highest degree of care and skill practicable for it to exercise. Ordinarily, in the absence of circumstances showing that a passenger about to deboard requires assistance in order to deboard safely, a common carrier is not required to assist passengers in deboarding."

Prior to the giving of the jury instruction, plaintiff objected to the second sentence and elaborated that that portion of the instruction was "not consistent with any Oregon law" and that it asked "the jury to look at a particular set of circumstances and * * * carve it out." However, the court determined that it would give the instruction and, after the jury was instructed, plaintiff excepted to the second sentence of the foregoing instruction. The jury ultimately returned a verdict finding that TriMet had not been negligent in any of the ways plaintiff claimed, and, accordingly, the court entered judgment for TriMet.

Plaintiff argues on appeal that the trial court erred in giving the second sentence of the instruction. That is, the trial court should not have instructed the jury that "[o]rdinarily, in the absence of circumstances showing that a passenger about to deboard requires assistance in order to deboard safely, a common carrier is not required to assist passengers in deboarding." According to plaintiff, that duty-to-assist instruction is not consistent with the standard of care applicable to common carriers in Oregon.(2) TriMet asserts that the instruction correctly stated the law and was proper to give to the jury.

As a common carrier, TriMet "owes its passengers the highest degree of care and skill practicable for it to exercise." Brant v. Tri-Met, 230 Or App 97, 103, 213 P3d 869 (2009) (internal quotations marks omitted); see also Simpson v. The Gray Line Co., 226 Or 71, 76, 358 P3d 516 (1961) ("The jury was correctly instructed in the case at bar that a common carrier owes its passengers the highest degree of care and skill practicable for it to exercise. Prosser, Torts 147,