Civil Rights and Common Sense: Safety-Related Deficiencies of the ADA

As Americans, we have a lot of things to be proud of. Among them is the serious effort we have made, as a society, to provide mobility to practically everyone, irrespective of their age, health, agility or strength.

Across the spectrum of transportation sectors, regulations have not only formalized the duties for providing this service, but also provide the details for considerable guidance. Unfortunately, these same regulations do not always provide much wisdom or reflect much common sense.

Cranes and Craniums

One provision of the ADA and another response to it illustrate how stupid and thoughtless we can be:

  • Focusing mostly on performance, as most regulations do, the ADA included a few design parameters. One set requires lift platforms to be at least 48 inches long, while a complementary regulation requires the same length of space for the on-board securement area in which each wheelchair should be positioned and secured. Of course, when a 48-inch-long wheelchair boards a bus or van, the 48-inch space for securing it is woefully short: Positioning the chair in this area effectively requires a crane. I have yet to see one inside a bus, coach or van conversion. But I have been involved, as an expert witness, in dozens of lawsuits where wheelchairs were either not properly secured or not secured at all. Quite often, this was because there was no place for the driver to kneel or crouch in order to secure the wall-side of the chair to the wall-side securement hardware. Finally – after 16 years of entrenched ignorance and very likely thousands of deaths and serious injuries – the Federal Transit Administration is “reconsidering” requirements for the length of the securement space. Most of the suggestions from industry experts lie around 60 inches. Particularly with the quick-change, track seating systems on many motorcoaches (which transit buses, schoolbuses and van conversions could just as easily install), I advocated for 66 inches: If I have to kneel behind or in front of a wheelchair, I want at least 18 inches to do so. Because the top of my knee is about 20 inches above ground, this is a squeeze. Otherwise, as a 50-percentile male adult in size, I would have to squiggle like a worm in a space unreasonably small for my body. The two-digit percentage of our drivers dining on cheeseburgers and Doritos are not squiggling anywhere. They are simply not securing wheelchairs to the wall-side tracks.
  • Motivated by some Cro-Magnon mastery of science and human rights, a handful of Denver’s wheelchair users got together, in the late 90’s, and filed a class action lawsuit (Taylor v. Denver RTD) for the right to ride around on a bus with their wheelchairs unsecured. A rolling chair on a moving floor. Some idea. Hypersensitive to criticism by some tiny, amorphous subset of wheelchair users, the Federal Transit Administration insulted their intelligence – and that of every professional in the public transportation community – by actually ruling to allow this approach. To ensure that the FTA’s decision was politically correct, the ruling permits transit and paratransit agencies to choose either approach – “system choice” or “passenger choice” – as long as it is codified in formal, written policy. So if a transit agency wishes, its drivers can push uncooperative wheelchair users back onto the lift platform and lower them down into the snow. Or they can let the wheelchair users roll around like pinballs at every stop, start, acceleration, deceleration, braking, merging, weaving and turn.

Lullabies and Lawn Chairs

Think about this: An able-bodied passenger boards a transit bus, carrying an aluminum lawn chair. The passenger says to the driver: “Hey. Listen. I want to sit in my own chair, in the middle of the aisle. By the way, could you give me about 15 seconds to plug the wheels in?” What sane bus or motorcoach driver would permit this? This is not much different than boarding a passenger holding a large wrench who requests a few minutes to unbolt the legs of his or her seat from the floor. A responsible bus driver would grab his mic and make his dispatcher’s ears bleed. But not if a far-more-vulnerable passenger boards in a seat with its wheels already attached. At least not under the doctrine of “passenger choice.”

One strategy of law suits is to not overwhelm the jury with needless complexities. Another is to make sure they do not fall asleep during your witnesses’ testimony. Most adults have at one time or another tipped over by leaning back in their desk chairs-on-coasters – or narrowly escaped doing so. When an expert witness describes the lunacy of letting a seat on wheels roll around on a moving floor, you can count on the jury being riveted.

Liability and Lunacy

As defenseless as “passenger choice” seems to be, transit agencies jumped at the liability ruse it provided them – especially where they could not make their drivers secure wheelchairs, and particularly where the vehicle’s hardware or spacing made it difficult or impossible. Under the ruse of “passenger choice,” if a driver fails to secure a wheelchair, he or she can simply claim (in other words, lie) that the passenger did not allow him or her to do so. In contrast, in a system employing “system choice,” such a claim would be moot, since it is the driver’s responsibility to push the uncooperative passenger’s wheelchair back onto the lift platform, and lower him or her back down into the snow. A bit more frosty. But a Helluva lot safer than letting him or her gyrate around at the whims of inertial and centrifugal force.

Having reviewed hundreds of depositions taken of bus, motorcoach and van drivers, I have been astonished by how rarely these drivers seem to understand that inertial and centrifugal forces even exist, much less how they operate.

Safety and Sanity

In theory, riding a bus in a wheelchair should be much safer than riding as an ambulatory passenger: A wheelchair user does not have to ascend or descend a stepwell (often with poorly-designed handrails). And he or she cannot ride as a standee. Given these constraints, one has to wonder why 20 percent of all the lawsuits in which I have participated have involved either failures to secure wheelchairs properly or failures to secure them at all.

I have also been astonished at the number of drivers who actually defend their failures to provide physical assistance to disabled passengers under the preposterous ruse of not wanting to violate their civil rights. While the ADA’s focus lay on mobility, it did not intend to do so at the expense of safety. The common denominator is equality. Frankly, if a disabled passenger’s ride is not as safe as that of a non-disabled rider, then he or she is not being provided with “equivalent service.”

Learning from Experience

I do not write so often about wheelchair securement because it is my hobby. Wheelchair users comprise a miniscule percentage of motorcoach passengers. I write so often about wheelchair securement because its failures hog a grossly disproportionate share of injuries and lawsuits – lawsuits often followed by enormous damage awards.

The motorcoach community has enjoyed a full decade to learn about the ADA from its transit and paratransit cousins’ mistakes. But we would be foolish to take their solutions at face value. Some common sense and critical thinking would go a long way. Beyond that, we might try asking some disabled passengers what kind of help they would actually like. I would just be a little careful about asking someone from Denver.

Publications: National Bus Trader.