IN THE CIRCUIT COURT OF
COUNTY DEPARTMENT, LAW
DIVISION
JOSEPHINE BUTZEN, deceased,
by EDWINA )
SKELTON, Special
Administrator, )
)
Plaintiff, )
v. )
)
DALE SMITH, as Sole
Proprietor of DALES )
CHARTER SERVICE, and
MAYFLOWER )
TOURS, INC., an Illinois
Corporation, )
)
Defendants. )
___________________________ ) No.:
97 L 08589
)
MAYFLOWER TOURS, INC., an
Corporation, )
)
Cross-Plaintiff, )
v. )
)
DALES CHARTER SERVICE, )
)
Cross-Defendant. )
MOTION OF DALE SMITH AND DONNA SMITH, INDIVIDUALLY,
D/B/A
DALE'S CHARTER SERVICE, FOR SUMMARY JUDGMENT
NOW COME the Defendants,
DALE SMITH and DONNA SMITH, individually, d/b/a DALES=S CHARTER SERVICE hereinafter DALE=S CHARTER), by and through their
attorney, LAW OFFICES OF LOWELL D. SNORF, III, and move this Honorable Court
pursuant to 735 ILCS 5/2-1005 for summary judgment as to the following issues
of Count I and Count II of Plaintiff=s Complaint at Law:
1.
DALE=S CHARTER WAS A PRIVATE CARRIER, NOT A COMMON CARRIER,
AND
IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF=S ALLEGATIONS
DALE=S OPERATED AS A COMMON CARRIER
2.
ON
D/B/A DALES=S CHARTER SERVICE, BREACHED NO DUTY TO
JOSEPHINE BUTZEN, DECEASED, AND ARE ENTITLED TO
SUMMARY JUDGMENT
3.
ON
CHARTER SERVICE, DID
COACH BUS, BREACHED NO DUTY TO JOSEPHINE BUTZEN,
DECEASED, AND IS ENTITLED TO SUMMARY JUDGMENT
I.
BACKGROUND AND PROCEEDINGS TO DATE
On July 20, 1995,
eighty-four year old JOSEPHINE BUTZEN (deceased on July 17, 1996) claims to
have fallen on DALE=S CHARTER coach bus number 005 while the coach was driven in
London, Ontario, Canada. As a result of her
On
As a result of JOSEPHINE
BUTZEN=S July 20, 1995 fall and July 17,
1996 death, EDW1NA SKELTON, Special Administrator, filed a four count wrongful
death and survival complaint, (see Exhibit 1). Counts I and II are directed against DALE
SMITH and DONNA SMITH. Paragraphs 5 of
both Count I and Count II allege:
5. At all times relevant, it was the duty of
Defendants, Dale Smith and Donna Smith, Individually and d/b/a Dale=s Charter Service and as Agents of Dale=s Charter Service, as a common carrier to exercise the
highest degree of care and caution in the ownership, operation, management,
maintenance and control of the bus to avoid injury to the plaintiff.
Counts III and IV are directed
against MAYFLOWER TOURS, INC. DALE=S CHARTER answered the Plaintiff=s complaint (see Exhibit A2@), as did MAYFLOWER TOURS, INC., (see
Exhibit 3). Plaintiff answered the affirmative defenses of MAYFLOWER TOURS,
INC., (see Exhibit 4). MAYFLOWER TOURS, INC. filed a contribution cross-claim
against DALE'S CHARTER, (see Exhibit 5). DALE'S CHARTER answered the
contribution cross-claim, (see Exhibit 6). MAYFLOWER TOURS, INC. answered the
affirmative defenses asserted in DALE=S CHARTER'S answer to the
contribution counter-claim, (see Exhibit 7).
II.
On
On or about June 10, 1995 JOSEPHINE
BUTZEN purchased a $585.00 bus vacation package entitled Toronto Theatre and
Niagara Falls tour from Mayflower Tours, Inc. and was issued a receipt, (see
Exhibit 9, Discovery Deposition of Ronald Smith, Deposition Exhibit
5). The package was a four day coach
bus vacation including three nights lodging, two plays and four meals, (see
Exhibit 10, Discovery Deposition of
Dale Smith, Deposition Exhibit 15 - Itinerary.) The tour left on
Bus passengers booked their trip
through MAYFLOWER TOURS, INC., and MAYFLOWER TOURS, INC. Areserved the right to accept, decline, or
retain any person as a member of the tour, see Exhibit 9,Discovery Deposition of Ronald Smith, ps. 72-79). The
trip was arranged based on a special agreement between DALE=S CHARTER and MAYFLOWER TOURS, INC.,
(see Exhibit 9, Discovery Deposition of Ronald Smith, p. 93).
The
tour left from the
The tour started on
Bus passengers Audrey
Bischoff, Margaret Wright, Audrey Jasin, Leah Templin, and Candy Rogers provided evidence depositions.
According
to Audrey Bischoff, JOSEPHINE BUTZEN boarded the DALE=S CHARTER bus the morning of July 20,
1995, (see Exhibit l3, Evidence
Deposition of Audrey Bischoff, p. 13). The bus was new. The bus was proceeding
to
Margaret Wright testified there were
about 40 people on the bus and MAYFLOWER=S tour director was on board, (see
Exhibit 14, Evidence Deposition of Margaret Wright, ps.
6, 7). The first day, before they stopped for the night, Margaret Wright
witnessed [JOSEPHINE BUTZEN] fall down, (Exhibit 14, Evidence Deposition of
Margaret Wright, p. 9). Three minutes before the bus was pulling into the
Hotel, Pat Mason announced to all passengers they were near the hotel, (Exhibit
14, Evidence Deposition of Margaret Wright, p. 17). Just before arriving at
the hotel, she saw JOSEPHINE BUTZEN get up. Wright testified that JOSEPHINE
BUTZEN fell when the coach was stopping, (Exhibit 14, Evidence Deposition of
Margaret Wright, p. 10). She had no knowledge DALE SMITH knew he would need to
apply his brakes when JOSEPHINE BUTZEN fell, (Exhibit 14, Evidence Deposition
of Margaret Wright, p. 25). She further stated the bus was not speeding; did
not strike any cars, nor did the bus brakes squeal, (Exhibit 14, Evidence
Deposition of Margaret Wright, p. 38). The bus was slowing down as it was
coming to a comer, (Exhibit 14, Evidence Deposition of Margaret Wright, ps. 30-38). The bus did not slam its brakes, (Exhibit 14,
Evidence Deposition of Margaret Wright, p. 19). She had no criticism of DALE
SMITH=S driving, (Exhibit 14, Evidence
Deposition of Margaret Wright, p. 25).
Audrey Jasin
gave her evidence deposition, (see Exhibit 15, Evidence Deposition of Audrey Jasin). She testified JOSEPHINE BUTZEN fell while the bus
was stopping, (Exhibit 15, Evidence Deposition of Audrey Jasin,
p. 18). No other passengers were ejected from their chairs, nor was the bus
speeding, (Exhibit 15, Evidence
Deposition of Audrey Jasin, p. 22). She was not of the opinion the bus was
driving too fast at the time BUTZEN fell, (Exhibit 15, Evidence Deposition of
Audrey Jasin, ps. 23, 28,
29). While the bus was stopping, she did not hear the squeal of tires, nor did
the bus strike any other cars, (Exhibit
15, Evidence Deposition of Audrey Jasin, p.
23). She had no criticism of the way DALE SMITH drove the bus, (Exhibit 15,
Evidence Deposition of Audrey Jasin, p. 20).
Leah Templin
also gave her evidence deposition. She testified her fare was paid directly to
MAYFLOWER TOURS, INC., (see Exhibit 16, Evidence Deposition of Leah Templin, p. 17). She testified the tour director reminded
passengers to stay in their seats while the coach bus was moving because the
bus might have to make a sudden stop, (Exhibit 16, Evidence Deposition of
Leah Templin, p. 16).
At the time JOSEPHINE
BUTZEN fell, they were on their way to the Howard Johnson=s Motel in
Bus passenger Candy Rogers
also provided an evidence deposition. Candy Rogers boarded the bus on
Candy Rogers was seated a
little behind half-way of the bus, (Exhibit 17, Evidence Deposition of Candy
Rogers, p. 9). She saw JOSEPHINE BUTZEN Atooling down the aisle@ toward the rear of the bus, not
holding onto anything, (Exhibit 17, Evidence Deposition of Candy Rogers, ps. 10, 1, 16). JOSEPHONE BUTZEN came back up the aisle
from the restroom, (Exhibit 17, Evidence Deposition of Candy Rogers, p. 11).
JOSEPHINE BUTZEN fell next to Candy Rogers when the bus was stopping, (Exhibit
17, Evidence Deposition of Candy Rogers, ps. 11,
12). There was nothing unusual about
the stop, (Exhibit 17, Evidence Deposition of Candy Rogers, p. 12). The bus
was not speeding or driving erratically; she had no criticism of the way DALE
SMITH drove the bus, (Exhibit 17, Evidence Deposition of Candy Rogers, p.
22). At the time the bus stopped, she did not hear the squealing of the tires,
(Exhibit 17, Evidence Deposition of Candy Rogers, p. 23). No other passengers
were thrown from their seats, (Exhibit 17, Evidence Deposition of Candy
Rogers, p. 23). The bus did not hit anything, (Exhibit 17, Evidence
Deposition of Candy Rogers, p. 23).
MAYFLOWER TOURS, INC.=S tour director, Pat Mason, provided
her discovery deposition, (see Exhibit 11, Discovery Deposition of Pat
Mason). Fares were paid by passengers to MAYFLOWER TOURS, INC., (Exhibit 11,
Deposition of Pat Mason, p. 118). The
trip started in
Pat
Mason told passengers they were coming to the hotel, (Exhibit 11, Discovery
Deposition of Pat Mason, ps. 55, 58). She did not see
JOSEPHINE BUTZEN get up, (Exhibit 11, Discovery Deposition of Pat Mason, p.
54). They were driving on an access road a couple of blocks from the hotel,
(Exhibit 11, Discovery Deposition of Pat Mason, p. 56). The route was
determined by MAYFLOWER TOURS, INC., (Exhibit 11, Discovery Deposition of Pat
Mason, p. 57).
JOSEPHINE BUTZEN fell after
the bus was stopping for a stoplight, (Exhibit 11, Discovery Deposition of
Pat Mason, ps. 65-66). The fall took place after Pat
Mason made the announcement they were near the hotel, (Exhibit 11, Discovery
Deposition of Pat Mason, p. 87).
She had no criticism of
DALE SMITH=S driving, (Exhibit 11, Discovery Deposition of Pat Mason, p. 16). At the time the bus was stopping for the
stoplight, DALE SMITH=S driving was not erratic or irregular, (Exhibit 11,
Discovery Deposition of Pat Mason, p. 117). At the time the bus stopped for the
light, she did not hear the squealing of brakes; no other passengers were
ejected from their seats, (Exhibit 11, Discovery Deposition of Pat Mason, p.
117). The bus did not hit anything, (Exhibit 11, Discovery Deposition of Pat
Mason, ps. 117, 119).
DALE SMITH testified in his
deposition that DALE'S CHARTER SERVICE was a sole proprietorship from 1979
through 1999, He was the sole proprietor, (Exhibit 10, Discovery Deposition
of Dale Smith, p. 5, 80). He was the only DALE=S CHARTER SERVICE employee on the
bus, (Exhibit 10, Discovery Deposition of Dale Smith, p. 9).
Immediately
before JOSEPHINE BUTZEN=S fall, DALE SMITH was traveling on Wellington Road in
London, Ontario, after having exited the highway, (Exhibit 10, Discovery
Deposition of Dale Smith, p. 14). They were on their way to the hotel, (Exhibit
10, Discovery Deposition of Dale Smith, p. 31). Traffic was moderate,
(Exhibit 10, Discovery Deposition of Dale Smith, p. 18). The intersection where he eventually
stopped was 100 yards away when he first saw it, (Exhibit 10, Discovery
Deposition of Dale Smith, p. 17). The light was green, (Exhibit 10, Discovery
Deposition of Dale Smith, p. 19). His speed was 25 to 30 miles per hour; no
vehicles did anything unusual in front of him, (Exhibit 10, Discovery
Deposition of Dale Smith, ps. 21-22, 77). He slowed
to 25 miles per hour, and 45 feet from the intersection, the traffic light
turned from green to yellow, (Exhibit 10, Discovery Deposition of Dale Smith,
ps. 26, 27). He applied his brakes, (Exhibit 10,
Discovery Deposition of Dale Smith, p. 26).
The bus came to a stop 5 feet from the intersection for the red
light, (Exhibit 10, Discovery
Deposition of Dale Smith, p. 28).
The bus they were on was
bus No. 005, a 1993 MCI coach he purchased new in 1993, (Exhibit 10,
Discovery Deposition of Dale Smith, p. 47).
ARGUMENT
1.
DALE'S CHARTER WAS A PRIVATE CARRIER, NOT A COMMON
CARRIER, AND IS ENTITLED TO SUMMARY
DALE'S OPERATED AS A COMMON CARRIER
On
A common carrier undertakes for hire to carry all
persons indifferently, who may apply for passage so long as there is room and
there is no legal excuse for refusal Hantel.,
323 Ill.App. 364, 55 N.E.2d 710. ...A private
carrier by contrast undertakes by special agreement, in a particular instance
only, to transport persons or property from one place to another either
gratuitously or for hire Long, 187 Ill.App.3d 614, 543 N.E.2d
525. A private carter makes no public profession to carry all who apply for
carriage, transports only by special agreement, and is not bound to serve every
person who may apply Meyer, 333 Ill. App. 301, 77 N.E.2d 454.
In Doe v. Rockdale School District
(see general,
...by specific agreement, Crawford transported only
special education students between home and school. Crawford, like the
defendant in Hantel, provided a specific service to a
specific group of people, namely the
Similar
to the facts and holding of Doe v. Rockdale School District 287
Ill. App.3d 791,679 N.E.2d 771 (3rd Dist., 1997), on July 20, 1995, DALE SMITH
undertook, by special agreement with MAYFLOWER TOURS, INC., to transport
MAYFLOWER TOURS, INC. passengers for the limited three day tour, (see Exhibit 9, Discovery Deposition of Ronald
Smith, p. 93). MAYFLOWER TOURS, INC., and not DALE=S CHARTER, retained the right to deny
passage to any or all who applied, (Exhibit 9, Discovery Deposition of Ronald
Smith, p. 94). DALE SMITH'S relationship
to MAYFLOWER TOURS, INC.'S passengers did not make DALE SMITH a common carrier. On this tour, DALE SMITH did not undertake to
carry all passengers indifferently who may apply, because MAYFLOWER TOURS, INC.
retained the right to decide who went on the trip, (Exhibit 9, Discovery
Deposition of Ronald Smith, Deposition Exhibit 1). DALE='S CHARTER SERVICE transported
MAYFLOWER TOURS, INC.=S passengers subject to the agreement MAYFLOWER TOURS, INC.
had with its passengers. This tour was arranged by MAYFLOWER TOURS, INC. Passengers paid MAYFLOWER TOURS, INC., and
MAYFLOWER TOURS, INC. paid DALE'S CHARTER, (see Exhibit 12, Discovery Deposition of Anthony George,
ps. 19-20).
Here, DALE=S CHARTER, in its special agreement
with MAYFLOWER TOURS, INC. was to transport MAYFLOWER TOURS, INC.=S passengers for $2,300.00 for three
days to and from
Where a carrier dedicates
the full capacity of his vessel to one shipper=s cargo, it is presumed in the
absence of other evidence that the ship is a private carder. See: J. Aron & Company v. Cargill Marine
Terminal 998 F.Supp. 700 (E.D. La., 1998).
Here, the passengers on-board DALE=S CHARTER SERVICE=S bus were exclusively MAYFLOWER
TOURS INC. passengers. These passengers were transported via the private
agreement between MAYFLOWER TOURS, INC. and DALE=S CHARTER, and the trip was of
limited duration, (see Exhibit 18, Affidavit of Dale Smith).
Accordingly,
Plaintiff has failed to sustain her burden of proof that during the Toronto
Theatre and
ARGUMENT
2.
DALE SMITH AND DONNA SMITH, INDIVIDUALLY, D/B/A
DALES'S CHARTER SERVICE, BREACHED NO DUTY TO JOSEPHINE BUTZEN AND ARE
ENTITLED TO SUMMARY JUDGMENT
Without any factual showing
of negligence, Plaintiff attempts to hold DALE=S CHARTER liable for JOSEPHINE BUTZEN=S fall when DALE SMITH was stopping
his bus for a stoplight. No Illinois precedent exists establishing DALE=S CHARTER can be liable for coming to
a sudden stop without factual testimony establishing the stop was unusually
violent or more than a usual and ordinary stop incident to operating a
bus. Malone v. Chicago Transit
Authority 76 Ill.App.2d 451 222 N.E.2d 93, 95 (lst
Dist., 1966) 1.
Five
bus passengers have been deposed: Audrey Bischoff, Margaret Wright, Audrey Jasin, Leah Templin, and Candy
Rogers. Two party occurrence witnesses,
MAYFLOWER TOURS, INC.=S director, Pat Mason, and DALE SMITH provided their
depositions.
At about 6:00 p.m. on July
20, 1995, eight-four year old JOSEPHINE BUTZEN got up to use the bathroom while
the coach was moving, (Exhibit 13, Evidence Deposition of Audrey Bischoff, ps. 7, 67-70).
JOSEPHINE BUTZEN was 5'4", weighing 160 lbs., (Exhibit 13,
Evidence Deposition of Audrey Bischoff, p. 97). JOSEPHINE BUTZEN came back from
the bathroom, the bus lurched, and JOSEPHINE BUTZEN fell into a bus seat,
(Exhibit 13, Evidence Deposition of
Audrey Bischoff, p. 72). Establishing
the stop was not unusually violent, JOSEPHINE BUTZEN was not thrown either
forward or down on the floor, (Exhibit l 3, Evidence Deposition of Audrey
Bischoff, ps. 20, 72). Audrey Bischoff offered no
explanation why the bus stopped, nor did she establish DALE SMITH knew he was
going to stop, (Exhibit l3, Evidence Deposition of Audrey Bischoff, p. 82).
Other than testifying the bus Alurched forward@ or stopped suddenly, Audrey Bischoff
offered no facts showing the reason or circumstances of Dale Smith=s stop was as a result of negligent
operation.
The
testimony of Margaret Wright, Audrey Bischoff, and Leah Templin lend no factual support to Plaintiff's allegations
of negligence. Margaret Wright said Afor some reason, he [DALE SMITH] had to
apply his brakes and JOSEPHINE BUTZEN went down, (Exhibit 14, Evidence
Deposition of Margaret Wright, p. 11). She did not see why the bus stopped, nor
did she feel it was speeding or driving too fast for conditions, (Exhibit 14,
Evidence Deposition of Margaret Wright, ps. 21-28).
All Margaret Wright offered was that the bus was slowing down when JOSEPHINE
BUTZEN fell, (Exhibit 14, Evidence
Deposition of Margaret Wright, p. 30, 32).
Audrey Jasin did not see JOSEPHINE BUTZEN fall
down and was not familiar with traffic conditions, (Exhibit 15, Evidence
Deposition of Audrey Jasin, ps.
9, 22). Like all other witnesses, she
testified the bus was not speeding or driving too fast, (Exhibit 15, Evidence Deposition of Audrey Jasin, ps. 22, 23, 28). Leah Templin did not see JOSEPHINE BUTZEN fall down and
confirmed the bus was not driving too fast for traffic condition, (Exhibit
16, Evidence Deposition of Leah Templin, ps. 9, 20).
Candy Rogers testified DALE
SMITH was not driving erratically or speeding when JOSEPHINE BUTZEN fell. She
factually confirmed the bus was stopping for a stoplight and that JOSEPHINE
BUTZEN fell into her lap, (Exhibit 17, Evidence Deposition of Candy Rogers, p.
12).
MAYFLOWER TOURS, INC.=S tour director, Pat Mason, again
confirmed that DALE SMITH was not driving erratically and offered no criticism
of DALE SMITH'S driving, (Exhibit 10, Discovery Deposition of Dale Smith, p.
116).
The Plaintiff has made no showing
through DALE SMITH that DALE SMITH was negligent while operating his coach,
(Exhibit 10, Discovery Deposition of Dale Smith, ps.
21-26). DALE SMITH testified his coach was 45 feet back from the intersection
when the light turned from green to yellow, (Exhibit 10, Discovery Deposition
of Dale Smith, p. 27), and he was traveling 25 miles per hour, (Exhibit 10,
Discovery Deposition of Dale Smith, p. 28). When the light turned yellow, he
was 45 feet from the intersection. He applied his brakes, stopping his bus
before going through a red light, (Exhibit 10, Discovery Deposition of Dale
Smith, p. 28).
Under
the facts of this case, Plaintiffs proof that DALE SMITH=S stop was unusual or violent must
consist of more than a mere characterization that DALE SMITH=S stop was Asudden.@ No witnesses have provided any facts
showing DALE SMITH was driving erratically or too fast for conditions. This is
further confirmed because JOSEPHINE BUTZEN was not thrown forward down
the coach, but appeared to fall into a bus seat in front of her.
The only facts brought out
are that DALE SMITH stopped his bus to avoid going through a yellow light.
While the stop is described as sudden or quick, there is no evidence
suggesting DALE SMITH=S speed was excessive.
Again, no other passengers were
thrown from their seats, and it is undisputed that JOSEPHINE BUTZEN fell while
she was walking within a moving coach bus.
The stop, which occurred
here, was incidental to ordinary travel. Ruling out stops of extraordinary
violence, the stopping of DALE SMITH=S bus to avoid going through a red
light is not the basis for finding the bus was negligently operated. In the
absence of other evidence relating to DALE SMITH=S stop of some act or omission by
DALE SMITH, which together with the sudden stop is sufficient to show a
breach of DALE SMITH=S duty to MAYFLOWER TOURS, INC.=S passengers, there is no breach of
duty.
WHEREFORE,
as there is no triable issue of fact sustaining the
allegations of Count I and Count II of Plaintiff's complaint, the Defendants,
DALE SMITH and DONNA SMITH, individually, d/b/a DALES=S CHARTER SERVICE, respectfully
request this Honorable Court enter a summary judgment in their favor and
against the Plaintiff.
3.
ON
COACH BUS, BREACHED NO DUTY TO JOSEPHINE BUTZEN,
DECEASED,
AND IS ENTITLED TO SUMMARY JUDGMENT
In order to hold DONNA
SMITH responsible for JOSEPHINE BUTZEN=S fall, plaintiff must establish
DONNA SMITH owed a duty to JOSEPHINE BUTZEN and breached the duty owed to
JOSEPHINE BUTZEN. Similarly, it must be established DONNA SMITH'S actions or
inactions were a proximate cause of JOSEPHINE BUTZEN=S fall.
Plaintiff alleges in her
complaint DONNA SMITH was the owner, agent, or employee of DALE'S CHARTER
SERVICE, (Exhibit 1, Par. 1).
DALE=S CHARTER SERVICE is a sole
proprietorship owned by DALE SMITH, (Exhibit 10, Discovery Deposition of Dale
Smith, ps. 2-16; Exhibit l8, Affidavit of Dale
Smith; Exhibit 19, Affidavit of Donna Smith). DONNA SMITH does not own the
assets of DALE=S CHARTER SERVICE. DONNA SMITH did not drive the bus. DONNA SMITH was not
on the bus. DONNA SMITH did not control or supervise DALE SMITH while he drove
the bus in
It
is incumbent upon the Plaintiff to factually establish that DONNA SMITH was
responsible for JOSEPHINE BUTZEN=S falling on DALE SMITH=S bus when DALE SMITH was stopping
for a red light. The Plaintiff has not established DONNA SMITH knew or should
have known the bus would stop; that DONNA SMITH exercised control over DALE
SMITH, or that DONNA SMITH had any involvement with JOSEPHINE BUTZEN=S fall. Here, Plaintiff has not
established any causal connection between DONNA SMITH acting as an office
manager of DALE=S CHARTER SERVICE and JOSEPHINE BUTZEN=S fall.
WHEREFORE, as there is no triable issue of fact sustaining the allegations of Count I
and Count II of Plaintiff's complaint against DONNA SMITH, the Defendant, DONNA
SMITH, individually, d/b/a DALES'S CHARTER SERVICE, respectfully requests this
Honorable Court enter a summary judgment in favor of DONNA SMITH, individually,
d/b/a DALE=S CHARTER SERVICE.
Lowell D. Snorf, III Respectfully
Submitted,
LAW OFFICES OF
Telephone: (312) 984-0421 Lowell
D. Snorf, III
ATT #71148
1
In cases involving the negligent stopping of a bus, in order
to survive summary judgment, most states require the plaintiff to not only
establish there was a jerk or stop, but that jerk or stop was extraordinary and
beyond the passengers reasonable anticipation. Meussner
v. Port Authority of