One reason there are so many wheelchair tipovers is that those agencies and companies’ drivers who commit them are never held meaningfully accountable. Yet there is a way to do this – most easily on transit systems – although for reasons I’ll never understand, few attorneys like to do this, even when the results almost always produce astronomical results. An illustrative story helps explain how to do this and why it works.
About 20-some years ago, I was engaged in a case where the wheelchair actually did not tipover. The plaintiff – a quadriplegic who obviously could not drive but who had a low-paying job as a same-day courier – had to ride the community’s buses to reach the pickups and drop-offs. The system had 20 routes. But no driver ever secured his wheelchair, and he rode in fear of a tipover. And rightly so: I’ve served as an expert (many since that case) where tipovers have resulted in their occupant’s death, or fates far worse than the wheelchair user had been experiencing prior to the tipover.
Anyway, one day, on board one of the defendant’s transit buses, the driver was forced to slam on the brakes. And he should have, since a taxi cut right in front of his bus. The momentum of such an incident creates perhaps a single g-force – whereas wheelchairs (and seats and frankly anything on board that needs securement must be secured to withstand a 20 g-force collision. This is equal to a bus slamming into a steel wall at 30 mph. Our client’s motorized wheelchair (like all motorized wheelchairs) had passive brakes). So when the bus stopped short, the momentum did not cause the chair to roll forward. But the g-force or so caused it to slide forward, and it did so such that our client bumped his forehead on the back of the head of a passenger seated in a forward-facing seat, leaving a huge welt on his head as though one had sliced a seventh or eighth of a baseball off and pasted it onto his head. No concussion. And no bleeding. But a bad headache. Otherwise, the welt disappeared completely in about a week. And as I recall, the plaintiff had someone take a photo of it when it was at its worst (a few hours after the collision).
My counsel thought the damages were worth perhaps $10,000. (I felt they were worth perhaps $2500.) But the client was petrified about riding the system yet needed to in order to earn enough money to survive. So he wheeled himself into my counsel’s office and begged him to do something to make the defendant secure his wheelchair. Luckily my counsel knows something about the spirit of the ADA, and took the case. Then he hired me.
As luck would have it, three years earlier, in a class action suit in neighboring Los Angeles County, the judge ordered the defendant (in BRU v. LACMTA) to purchase THIRTY-TWO HUNDRED additional buses. And under the circumstances, it was highly unlikely that the Federal Transit Administration would have paid for 80 percent of them, as its pays for 80% of any capital acquisitions in this part of the Deep State. Not equipped with the machine for conducting an NBA lottery, or owning 20 ping pong balls, I took a schedule identifying the system’s 20 routes back to New York, wrote down the name of every route on a yellow post-it note, crumbled them up, and tossed them into a punch bowl. I then withdrew five. And then flew back to the venue in Southern California and rode and timed all five of these routes. As I expected, all of them were tight, and in order to merely arrive a few minutes late on each run, the drivers committed all type and manner of “safety compromises” (see safetycomrpromises.com). I advised my counsel to hire some local detective to ride a couple of routes and photograph the countless safety compromises that were committed on each run. (It is hard to do this simultaneously while riding-and-timing the routes, since many intersections are not marked with street signs, and the stops on almost every bus schedule I have ever seen contains only every 6th or 7th stop – known as “time points” by those in the fixed route bus business.)
After finding all five routes tight – while their drivers committed countless safety compromises, my counsel amended the Complaint to require the defendant to purchase 15 percent more buses – which would have meant 30, as the existing fleet deployed 200. With at least one more bus on each route, they could operate more slowly, the same intervals apart (these are known as “headways” in the business), and driver would have time to perform the most time-consuming safety compromise: Securing a wheelchair. Our Complaint also contained a page and a half of other “action items” on it.
The defendant suddenly inherited the risk that a judge might actually grant this request – especially a judge sensitive to regulations (like the ADA), and who would certainly have heard about the BRU case noted above, which was ruled on in the venue in a county next door to ours. Had a judge done this, the defendant would likely have spent about $10M on buses, and another $30M to $40M to operate and maintain them during the life of the consent decree. I was flown back to Southern California to attend what turned into a 17-hour non-binding mediation. At the end, the defendant agrees to every demand of the 50 or so we included as long as we took the 15 percent additional buses “off the table.”
Among the concessions we got:
- A small army of formal monitors (mostly wheelchair users) was formed to ensure that drivers always secured wheelchairs – and did so properly).
- Formal punishment for drivers caught not securing a wheelchair.
- The hiring of an ADA Coordinator
This last item came with conditions. From then on, whenever a wheelchair user was picked up, the driver was required to notify the dispatcher. The dispatcher was then required to notify the ADA Coordinator. Five minutes or so later, when the chair was secured, the driver had to contact the dispatcher once again, telling him that the chair was secured. Then the dispatcher had to again contact the ADA Coordinator to let him know this.
This baroque dance tied the transit system in knots. But perhaps as he was a “marked man,” our client’s wheelchair was always secured – irrespective of the route or the driver. (A complaint from him would have carried more weight – and could have re-opened the Consent Decree.) It wreaked havoc on those routes ridden by wheelchair users, since the routes were already too tight. And I suppose that on those routes more safety compromises of other types were committed.
I can’t begin to enumerate how many attorneys I’ve worked for since who were too timid to amend their complaints and ask that a single additional bus be placed on the plaintiff’s route. This would have been invaluable since, even in a settlement, word would have gotten around (unusual lawsuits always get leaked to the Press or the Media) and, at least in this system, every time someone was injured, his or her counsel would have filed for injunctive relief. And eventually there would have been enough buses on each route such that the commission of safety compromises would have been stopped in their tracks.
Injunctive relief is the magic weapon in civil lawsuits – not just in transportation lawsuits, although those are all I am involved in. This approach failed in only once case that I know of – but only because I wasn’t paid on time, and withdrew from the suit, forcing my counsel to argue the case without an expert. Needless to say, our legal system is not designed well to accommodate such situations.
#wheelchairexpert #wheelchairtipovers #wheelchairtransportation #transalt #injunctiverelief