Contractual Agreement and Common Carriers

Although this will become clearer in contract law, nonfeasance, a defendant’s failure to perform on a promise he made does not usually give rise to tort liability even if the defendant knows that the plaintiff will be harmed if the promise is not kept.

However, where the defendant enters upon performance of a promise (where he actually begins to carry out the promise), he must do so with reasonable care. Failure to exercise reasonable care will give rise to liability just as any negligent act would. This is known as misfeasance. This is in contrast to nonfeasance, where the defendant does not do what he promised to do at all.

The same is basically true for contractual promises. Where the defendant fails to perform under the contract, there is no basis for tort liability. (Note that he may be liable under contract theory, but that will be covered in our Contracts course.)

However, again, if the defendant begins performance on the contract he must do so with reasonable care. An improper performance of the contract may give rise to an actionable tort.

In certain situations a defendant’s carelessness in carrying out his contractual obligations may involve a foreseeable risk of harm to a third person. In such cases, the defendant’s liability to any third person is determined strictly on negligence standards. The fact that the defendant acted to carry out a contract has no bearing on tort liability.

There is also a special element involved in the duty owed by common carriers to their passengers. Under the older authorities, the duty of a common carrier was considered a special duty. Modern authorities however consider the duty owned by common carriers simply as a duty of care.

Either way, it is clear that common carriers are expected to deliver a higher amount of care to their passengers. However, this higher degree of care has not been imposed on drivers of private cars with respect to their riders.

Further, some states have prohibited riders from suing drivers for liability altogether except for situations involving gross negligence or willful misconduct. However, these statutes only apply to guests in a private car. The problem is how to determine whether an injured rider is a guest who is subject to the statute and thus cannot sue except for gross negligence or willful misconduct, or whether the rider is a passenger to whom the common law duty of care is owed. The determining factor is usually money. If the rider has given some payment to the driver, the rider is considered a passenger and can sue for ordinary negligence. If no money has changed hands, the rider is a guest and can only sue under the statute's guidelines.