Defining a “Common Carrier” in the Common Law

At common law, a common carrier is classically defined as a “one who, by virtue of his calling and as a regular business, undertakes for hire to transport persons or commodities from place to place, offering his services to all such as may choose to employ him and pay his charges.” Carlton v. Boudar, 118 Va. 521, 527 (1916); Riggsby v. Tritton, 143 Va. 903, 906, 129 S.E. 493, 494 (1925). Embedded in this somewhat esoteric definition are two key defining features: (1) a common carrier expressly holds itself out to the public as offering transportation services; and (2) the transportation services provided are not incidental to another more fundamental function, as a personal injury lawyer in Arlington, VA like those at The Law Offices of Ryan Quinn, PLLC, can attest. The Supreme Court of Virginia offered a clear example of this distinction in Bregel v. Busch Entertainment Corp., 248 Va. 175 (1994). In Bregel, the Court held that Busch Gardens’ beloved Skyline attraction, which offers patrons a scenic aerial overview of the park, was not a common carrier as it was offered for primarily “entertainment purposes, and the transportation function is incidental to the entertainment function.” Id. at 175. The Court further reasoned that “patrons do not pay admission to the park to obtain transportation services; rather, they pay to be entertained by amusement rides, shows, and other attractions.” Id. at 177.

Utilizing this two-part analysis, courts have determined that taxicabs, buses, limousines, railroads, and ferries are common carriers.[1] Each expressly markets itself as a transportation provider, and each offers fundamentally transportation services, services that are not incidental to another more significant function. However, under the logic of Bregel, a company offering scenic helicopter tours of the Potomac River, for example, would likely not be considered a common carrier, as the transportation element of their services might be considered incidental to the more fundamental entertainment purpose of the scenic transportation. A more interesting potential example is a dinner cruise travelling a regular route (think “Booze Cruise” in The Office). Such a ride has all the earmarks of a common carrier (offers what are generally considered transportation services, ticketed entry, regular routes, etc.) but it could be easily argued that the transportational element of the service provided is incidental to the more paramount entertainment function. Following the rationale of Bregel, one critical aspect of this analysis will be whether patrons, when paying admission to the cruise, do so for primarily for entertainment or transportation reasons. See Bregel at 177.

On their own merits, ridesharing companies like Uber and Lyft might appear to meet the standards of the “common carrier” designation, as they, at least on the surface, satisfy the Bregel twin criteria as expressly offering transportation services that are not incidental to another, more elemental function. However, some state laws expressly excluded Uber, Lyft, and other ride-sharing entities from the definition of “common carriers.” See Virginia Stat. § 46.2-2000. This legislative decision has potentially massive implications for the Plaintiff’s bar, implications that exceed the scope of this article.

[1] Terminal Cars, Inc. v. Wagner, 205 Va. 214 (1964) (taxis); Shamblee v. Virginia Transit Co., 204 Va. 591(1963) (buses); Norfolk-Southern Ry. Co. v. Tomlinson, 116 Va. 153, 156 (1914) (railroads); Chesapeake Ferry Co v. Cummings, 158 Va. 33, 164 S.E. 281 (1932) (ferries); Murphy’s Hotel v. Cuddy’s Adm’r, 124 Va. 207 (1919) (elevators).