                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              OCT 10 2017
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CARLA MEJIA, individually; et al.,               No.   16-55585

              Plaintiffs-Appellants,             D.C. No. 2:14-cv-08604-PJW

 v.
                                                 MEMORANDUM*
GREYHOUND LINES, INC.,

              Defendant-Appellee.


                   Appeal from the United States District Court
                        for the Central District of California
                   Patrick J. Walsh, Magistrate Judge, Presiding

                      Argued and Submitted October 3, 2017
                              Pasadena, California

Before: FERNANDEZ, RAWLINSON, and N.R. SMITH, Circuit Judges.

      Carla Mejia, Henry Martinez, and Miguel Martinez appeal the district

court’s summary judgment in favor of Greyhound Lines, Inc. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      The district court did not err in concluding that Greyhound did not owe a

duty to warn passengers of the risk of developing deep-vein thrombosis (“DVT”).

Under California law, common carriers owe a heightened duty of care. See Cal.

Civ. Code § 2100. However, the existence and scope of this duty is, in part,

determined by the “foreseeability of harm.” See Randi W. v. Muroc Joint Unified

Sch. Dist., 929 P.2d 582, 588 (Cal. 1997). Although other Rowland factors play a

role in determining Greyhound’s duty, see id. (citing Rowland v. Christian, 443

P.2d 561, 564 (Cal. 1968)), “foreseeability plays a ‘very significant’ role in this

analysis,” Merrill v. Navegar, Inc., 28 P.3d 116, 140 (Cal. 2001). To determine the

scope of the duty based on foreseeability of harm, the California Supreme Court

has developed a “sliding-scale balancing formula,” which requires a court to (1)

“determine the specific measures the plaintiff asserts the defendant should have

taken to prevent the harm”; (2) “analyze how financially and socially burdensome

these proposed measures would be to [the defendant], which measures could range

from minimally burdensome to significantly burdensome under the facts of the

case”; (3) “identify the nature of the [harm] that the plaintiff claims could have

been prevented had the [defendant] taken the proposed measures, and assess how

foreseeable (on a continuum from a mere possibility to a reasonable probability) it

was that [the harm] would occur”; and (4) compare the burden and the


                                           2
foreseeability “in determining the scope of the duty.” Castaneda v. Olsher, 162

P.3d 610, 615-16 (Cal. 2007).

      Applying this balancing formula, Plaintiffs present no evidence

demonstrating how their claims would have been prevented by the issuance of a

warning, and they present no evidence that creates a clear causal link between

being sedentary and developing DVT. The submitted evidence reveals that the

immobility is a factor generally only when other risk factors (e.g., age, gender,

race, trauma, surgery, obesity, cancer, and pregnancy) exist. The mere fact that

Greyhound was aware that DVT existed and may have posed risks for some

passengers does not, by itself, make DVT a foreseeable risk to passengers creating

a duty to warn. As the district court correctly noted, “[t]he science of DVT has not

yet reached the point where common carriers like Greyhound can foresee that

passengers are in danger of developing DVT when they travel by bus.” Thus,




                                          3
Greyhound did not have a duty to warn passengers. See Castaneda, 162 P.3d at

615.1

        AFFIRMED.




        1
         Because Greyhound had no duty to warn passengers of the risks of
developing DVT, we need not reach the issue of negligent infliction of emotional
distress. See Eriksson v. Nunnink, 183 Cal. Rptr. 3d 234, 251 (Cal. Ct. App. 2015)
(holding that a defendant cannot be secondarily liable for the emotional distress
claims of a relative to the injury victim if the defendant is not primarily liable to
the injury victim). Even if we were to reach the issue, Plaintiffs failed to establish
that they had a contemporaneous understanding of the causal connection between
their mother’s injury and the “injury-producing event.” See Fortman v.
Förvaltningsbolaget Insulan AB, 151 Cal. Rptr. 3d 320, 329 n.4, 331 (Cal. Ct.
App. 2013).
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