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Click here for the full text of this decision FACTS: Doris Elmer, a seventy-year-old woman, fractured her spine while riding on the “Gulf Screamer,” a boat operated by Speed Boat Leasing. Elmer was given a ride in exchange for allowing the operator’s brochures to be placed in the rental office of the condominiums she managed. The “Gulf Screamer” advertised itself as offering “exciting fun packed cruises for all,” in which customers would “THRILL to a refreshing, exhilarating ride in open waters SCREAMING past South Padre Island’s beautiful sand beaches.” The captain of the Gulf Screamer testified that he gave a safety lecture before the ride, although Elmer disputes having heard one. Passengers were allegedly told that the ride would be rougher in the front of the boat. Elmer chose to ride up front and failed to tell the boat captain her age or that she had suffered from lower back pain. During the ride, Elmer was bounced around in her seat, causing her spine to fracture. After the accident, she was bedridden for a number of months and wore a brace for several more. She brought suit against the Gulf Screamer’s owner, Speed Boat Leasing, and Paradise Gulf Cruises, operator of the boat, for negligence. The trial court instructed the jury as to simple negligence, refusing Elmer’s requested instruction that the jury be instructed to the high standard of care required of common carriers. When the jury found that sixty-five percent of the negligence was attributable to Elmer, the trial court rendered judgment that Elmer take nothing. Elmer appealed, claiming that the jury should have been instructed as to the higher standard of care associated with common carriers. The appellate court reversed the trial court’s judgment and remanded the case back to the trial court, holding that the higher standard of care owed by common carriers was applicable. The court of appeals denied rehearing, although one justice who was not on the original panel dissented from the failure to grant en banc rehearing. HOLDING: The court reverses the judgment of the court of appeals, and reinstates the trial court’s judgment that Elmer take nothing. When determining whether someone who provides transportation is a common carrier, the court looks to their primary function. It must be determined whether the business of the entity is public transportation or whether such transportation is “only incidental” to its primary business. Mount Pleasant Indep. Sch. Dist. v. Lindburg, 766 S.W.2d 208 (Tex. 1989). This court held in Lindburg that a school district is not in the business of transporting students, but rather of educating them. Therefore, school bus drivers are not held to the higher standard of care of a common carrier. Although Speed Boat Leasing transports its passengers across the waters of the Gulf of Mexico, its primary purpose is to entertain, not to transport from place to place. It picks up and returns passengers to the same location, not for any of the other necessary journeys for which public transportation is intended, but merely for pleasure. Passengers board common carriers to get from place to place; passengers board the Gulf Screamer for the ride itself. The Gulf Screamer’s purpose, as testified by its captain, “was to supply passengers with an exhilarating fun ride.” The fact that it transports people is only incidental to its primary purpose. Elmer testified that she boarded the Gulf Screamer because the ride was offered to her in the hopes that she would recommend it to spring break tourists who visited her condominium offices. She further testified that she considered it a “sight seeing trip” for her out-of-town friend. But the brochures left in her office to advertise the Gulf Screamer were not simply advertising a way to get around South Padre Island. They clearly indicated that the trip was one for fun and excitement – “an experience you’ll never forget!” Thus, the Gulf Screamer is more analogous to an amusement ride, which this court has held to an ordinary standard of care, than a common carrier. An amusement ride is defined by Texas statute as a “mechanical device that carries passengers along, around, or over a fixed or restricted course or within a defined area for the purpose of giving the passengers amusement, pleasure, or excitement.” Texas Occupations Code �2151.002(1). In Texas, amusement ride operators are held to a standard of ordinary care. In short, amusement ride operators are not common carriers. The respondent cites Markham v. Houston Direct Navigation Co. for the proposition that Texas has held amusement ride operators to a higher standard of care. 11 S.W. 131 (Tex. 1889). In that case the plaintiff, a passenger in an excursion tug boat, suffered injuries when the boat collided with a rope that defendant had stretched over the water. In remanding the case for trial against the defendant under an ordinary negligence standard, the court observed in passing that the tug boat owner owed a “higher degree of care to [its passenger] than did the defendant.” The court never stated, however, what that higher standard was, and this ambiguous reference formed no part of the Court’s holding nor a necessary part of its reasoning. As such, it provides little guidance more than a century later. Although the Gulf Screamer may not fit the statutory definition of an amusement ride, its purpose is the same �� to give its riders “amusement, pleasure, or excitement.” Because its purpose was for a ” THRILL[ING],” ” SCREAMING ” ride through the Gulf of Mexico for pleasure, it should be evaluated in the same manner as an amusement ride and held to a standard of ordinary care. The trial court did not err in instructing the jury that the standard of care to be applied was ordinary negligence. OPINION: Per curiam.

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