Shepherd v. Amtrak (Johnston)

COMMON CARRIER DUTY OF CARE: Amtrak liable for damages to passenger raped by sleeper car attendant under Montana duty of care to passengers. . . Amtrak’s reliance on general course & scope rule rejected. . . Johnston/Morris.

Magistrate Johnston’s findings & recommendations.

Patsy Shepherd of North Carolina, then 68, was a passenger on Amtrak’s Empire Builder as it passed through Montana. Charles Pinner of Michigan, then 59, a sleeper car attendant, raped her 4/19/15 as the train passed by Wolf Point. He was convicted in Roosevelt Co. of kidnap and rape and sentenced to 60 years in prison. Amtrak has terminated him. Shepherd filed a complaint 4/14/17 alleging that Pinner is liable for damages stemming from the intentional torts of assault, sexual assault, battery, and false imprisonment, and that Amtrak is liable for the damages that he caused her to suffer and also for the damages she suffered because it was negligent in his hiring, supervision, and retention. Both parties request summary judgment.

Shepherd argues that regardless of whether Pinner’s actions were foreseeable or within course & scope of his employment, Amtrak is strictly liable because it is a common carrier, which is an exception to the “course and scope” rule, citing Taillon (Mont. 1903) for the proposition that “courts will not allow the carrier to shield himself behind the objection that such act was beyond the scope of the servant’s employment.” See also Ellinghouse (Mont. 1915). Amtrak argues that she is relying on antiquated dicta and that it is not strictly liable under Montana statutory or common law. It argues that Montana has not explicitly adopted the common carrier exception to the general course & scope rule. It cites Maguire (Mont. 1992) for its argument that the Montana Supreme Court has declined to extend employer liability to an employee’s intentional criminal acts outside course & scope of employment.

Montana has long recognized that common carriers owe a higher duty of care to those who have entrusted their safety to them. Cash (Mont. 1984). However, this does not equate to strict liability for holding Amtrak liable for any harm regardless of fault. Strict liability — also called liability without fault — is “liability that does not depend on proof of negligence or intent to do harm but that is based instead on a duty to compensate the harms proximately caused by the activity or behavior subject to the liability rule.” Black’s. Montana law does not hold a common carrier “strictly liable” for the harm caused to its passengers regardless of negligence or fault. Rather, the issue is — based on the undisputed facts — whether Amtrak — as a common carrier — is liable for the torts of its employee that were committed outside the course & scope of employment.

Taillon rejected a common carrier’s argument that it was not liable for a passenger’s damages caused by a servant’s intentional and wrongful acts committed outside the course & scope of employment. It analyzed a statute identical to the current statutory duty of care — MCA 69-11-107(1) — and held that the common carrier was liable to its passenger for the damages its employee’s intentional torts outside the course & scope of the employee’s employment caused the passenger to suffer:

Our statute charges upon the carrier of passengers for hire certain duties, among which are the following (section 2790, Civ.Code): “A carrier of persons for reward must use the utmost care and diligence for their safe carriage, and must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” This statute is merely declaratory of the common law as it has existed for many years. From the nature of the business, the actual transportation of passengers is usually intrusted to servants. These servants, therefore, must be charged with the exercise of the same care toward the passenger as is charged upon the master under the statutes and the contract of carriage; and it necessarily follows that any negligence or wrong committed to the passenger by the servant is a violation of such statute and contract, and if injury results therefrom the master is liable. The carrier is bound to do certain acts, and cannot excuse himself from liability upon the ground that he has committed their performance to others. The proper doing of the acts by another, appointed by him alone, is just as obligatory and binding upon him as though he undertook to perform them himself. He is bound to discharge his statutory and contractual obligation to the letter, and, if he commits the performance of these obligations to another, he does so at his own peril. There is no way in which he can shirk or evade their performance. If the servant in such cases does what the master could not do without violating the duties resting upon him, then the master must be held responsible for the acts of the servant, no matter how wrongful, willful, or even malicious they may be. Therefore, whenever the misconduct of the servant causes a breach of the obligation or the violation of the duty of the master, the master is liable for such acts, if injury follow.(Emphasis added).

Thus, under Montana law, if a common carrier commits the performance of its statutory duty of care to its agent, it is responsible for the agent’s actions “no matter how wrongful, willful, or even malicious they may be.” As the Supreme Court stated, there is no way in which a common carrier can shirk or evade its performance of its statutory duty, which would necessarily include arguing that the employee was outside the course & scope of his employment.

It is undisputed that Amtrak confided the duty to “use the utmost care and diligence for [Shepherd’s] safe carriage” to Pinner and that he breached this duty. Because it is a common carrier under Montana law, Amtrak is liable for the damages he caused her to suffer when he breached this duty and she is entitled to partial summary judgment on this issue. Amtrak’s argument that it is not liable because he was outside the course & scope of his employment is contrary to Taillon and must be rejected.

Further, Montana adopted Restatement of Agency §214 in Paull (Mont. 2009), which defines a “non-delegable duty”:

A master or other principal who is under a duty to provide protection for or to have care used to protect others or their property and who confides the performance of such duty to a servant or other person is subject to liability to such others from harm caused to them by the failure of such agent to perform the duty.

Amtrak argues that Paull adopted §214 only with respect to “inherently dangerous activities” because it did not address Maguire or other cases where the non-delegable duty exception was interpreted beyond inherently dangerous activities. However, Paull did not limit §214 to situations involving inherently dangerous activities, but stated: “We adopt Restatement (Second) Agency, § 214, as an appropriate statement of the law in Montana.” Cmt (e) contains a pointed example: “P, a railroad, employs A, a qualified conductor, to take charge of a train. A assaults T, a passenger. P is subject to liability to T.” Given that §214 is an accurate statement of Montana law, Amtrak is not excused from discharging the duty to provide for Shepherd’s protection and safety because the agent it chose to discharge this duty acted outside course & scope of his employment. To the contrary, §214 imposes liability on Amtrak for Shepherd’s damages because the very agent to whom it delegated the performance of this duty breached it, causing her to suffer damage.

Recommended, summary judgment for Shepherd.

– – –Judge Morris’s order.

Judge Johnston’s findings & recommendations are adopted in full. Shepherd’s motion for summary judgment

is granted; Amtrak’s cross-motion is denied.

Shepherd v. Amtrak and Pinner, 44 MFR 192, 4/9/18, 44 MFR 193, 8/15/18.

Michael George (George Law Firm), Great Falls, for Shepherd; Michelle Friend & Jared Frickle (Hedger Friend), Billings, Mark Landman (Landman Corsi Ballaine & Ford), NYC, and John Bonventre (Landman Corsi Ballaine & Ford), Newark, for Amtrak.