We Know Delta and Greyhound are Common Carriers … But is a Zipline a Common Carrier in Illinois?

By Doyice Cotten

WAQApril Dodge was a paying customer of Grafton Zipline Adventures when the braking system failed causing April to collide with a tree and suffer injury. She sued alleging that Grafton was negligent. Grafton claimed protection from the liability waiver signed by April prior to participation to which the plaintiff asserted that the waiver was unenforceable because Grafton is a common carrier and cannot exempt itself from liability for its negligence (Dodge v. Grafton Zipline Adventures, LLC, 2015 Ill. App. Unpub. LEXIS 1584).

The court explained that waivers were enforceable contracts relieving one party from liability for its negligent acts; it also made clear that a waiver between a common carrier and a passenger is “unenforceable because of the special social relationship of a semipublic nature … between the parties.” It then stated “Thus, any contract by which a common carrier of goods or passengers undertakes to relieve itself from liability for loss or damage arising from its negligence or the negligence of its servants is void.”

The court stated that determination of whether Grafton Zipline can be protected by a waiver must be preceded by determination of whether or not the zipline is a common carrier.  The court listed a number of characteristics of both a common carrier and a private carrier gleaned from other cases.

Characteristics of a Common Carrier

  1. A carrier hired to carry any person who applies for passage as long as there is room available and there is no legal excuse for refusing.
  2. A common carrier must accept as a passenger [**12] any person offering himself or herself for passage at the proper time and in the proper manner and who is able and willing to pay the fare.
  3. A common carrier may be liable for an unexcused refusal to carry all who apply.
  4. A common carrier holds itself out as such by advertising or by actually engaging in the business and pursuing the occupation as an employment.
  5. A common carrier necessarily has control and regulation of the passengers’ conduct and of the operation of the carriage before they can be held to the extraordinary liability of common carriers to such passengers.

Characteristics of a Private Carrier

  1. Private carriers as ordinarily defined are those who, without being engaged in such business as a public employment, undertake to deliver goods or passengers in a particular case for hire or reward.
  2. A private carrier makes no public profession to carry all who apply for transport, transports only by special agreement, and is not bound to serve every person who may apply.
  3. The test to distinguish a common carrier from a private carrier is whether the carrier serves all of the public alike.

Other Interesting Illinois Rulings

The following have been ruled to be common carriers:

taxi cab *** elevator *** ferris wheel *** merry go round *** scenic railway at a resort

The following have been ruled to NOT be common carriers:

escalator *** segway *** Medical transport van *** privately contracted car

One might ask why is an elevator a common carrier, but an escalator is not. The answer is that on an elevator, the passenger is passive and cannot exercise control; whereas, on an escalator, the passenger can play an active role in his or her transportation and contribute to his or her own safety.


The court determined that the issue is a question of fact and remanded it to the trial court for determination of whether the zipline is a common carrier.


A ruling that the zipline is a common carrier can have a significant effect on certain recreational activities including ziplines, whitewater rafting, and ski lifts (already the case in some states). Such a ruling would eliminate protection by waivers and raise the standard of care to an obligation of reasonable care.

Photo Credit

Thanks to FtCarsonPAO on Flickr.