A superficial glimpse at recent coach purchases with respect to ADA compliance timetables might suggest that the motorcoach industry is trying to “slide under the bar.” But a more detailed look suggests that our industry is actually raising it.
To soften a cliché, necessity is at least a distant cousin of invention. In the transit industry, full accessibility begat wheelchair lifts, and the ADA begat low-floor buses and convertible seats. In the motorcoach industry, the ADA further begat quick-change track seating systems. With these changes, the notion that wheelchair accessibility would reduce passenger carrying capacity was thus reduced to those few occasions when a coach might actually transport wheelchair occupants. Of course, if transporting wheelchair occupants was so rare that lifts were a needless expense, one could hardly argue at the same time that carrying such individuals was a burden.
Opening the Spigot
In recent years, the USDOT has found ways to contribute funding to both the pupil transportation and motorcoach communities, even if these subsidies are token compared to the highway and transit bonanzas. In the motorcoach industry, these funds have been earmarked for both security and accessibility. Such accomplishments are big feathers in the UMA and ABA caps, and comprise considerable lobbying accomplishments that benefit both motorcoach operators and their passengers.
At least year’s UMA Conference, I attended an impressive presentation by a large New England motorcoach operator that had not only embraced wheelchair accessibility, but profited from it, handsomely. Such outcomes are increasingly likely in light of current specification and purchasing practices: Few motorcoach buyers order new coaches with wheelchair lifts. (This trend is so prevalent that many coach manufacturers have begun to display non-lift-equipped models at trade shows.) Instead, savvy purchasers are using Federal funds to retrofit them. It is hard to know whether USDOT foresaw this practice when the Administration crafted the legislation to facilitate it. But even a staunch conservative would be hard-pressed to criticize public expenditures on a vital industry teetering from recent events beyond its control. Lettering on our T-shirts should proclaim, “Why Not Us?”
This practice, of course, has its downsides as maintenance, safety and product liability issues. While there are many excellent conversion companies, one suspects that their engineering and craftsmanship are not as uniformly reliable as those of original equipment manufacturers. When they are not, the retrofit savings may be offset by years of otherwise unneeded maintenance. Lifts deteriorate through usage and poor maintenance structurally, mechanically and electrically. If one experiences such problems, an examination of the life cycle costs of USDOT-sponsored retrofits versus full-cost OEM installation may be revealing. Of course, no one will be able to perform such an evaluation until both the coaches and funding program have entered their twilight years.
As discussed in a previous NBT article (“The Death Raft,” February, 2003), the law suits resulting from operator errors and omissions may drag vehicle manufacturers into cases where the risks of enormous pay-outs often induce sizeable settlements. But it is also true that cases involving faulty design, engineering, testing, production and/or quality control can draw in vehicle operators – and usually do. The ugly cases which result often turn into elongated and costly debates about product defects versus maintenance – debates often too technical for many jurors’ comprehension. In such debates, the whims of the U.S. legal system, particularly as it is commonly practiced, often reward co-defendants as much for their defense strategies as they penalize them for their faults. One troubling example involves the benefits which often accrue to the first co-defendant to settle: The plaintiffs’ attorneys’ cut of the settlement awards often finance goose chases against successive co-defendants in which plaintiffs and their attorneys may forgo moderate and reasonable offers and, instead, “swing for the cheap seats.”
The gradual inclusion of wheelchair lifts in one’s fleet presents another liability quirk: Once one spends money on a wheelchair lift, it is difficult to plead ignorance or regulatory timetables as a defense to negligence at the operating level. This may be particularly true if the equipment was purchased with taxpayers’ money. After all, most jurors are likely to be taxpayers. The three hundred dollars an operator might have spent on another two days’ of driver training may not look good against a backdrop of $30,000 spent on accessibility equipment. This is especially true since only a small percentage of disabled individuals use wheelchairs, and 60 percent of motorcoach riders are elderly to begin with.
Risks of exposure also include an exotic relationship between civil rights law and personal injury claims. A large motorcoach operator and unnamed (albeit obvious) intercity passenger rail carrier were sued after a station attendant was injured when a wheelchair occupant whose chair had been stowed in a luggage compartment fell down a motorcoach stepwell while alighting. As an extension of the rail carrier’s service, the coach (deployed in feeder service to and from an unmanned rail station) should have been lift-equipped according to the ADA. It was not. Both co-defendants were exposed to punitive damages because regulatory violations triggered them in the state where the incident occurred.
Safety and Liability
As one famous automotive supplier once advertised, “You can pay us now or you can pay us later.” The issue in that instance was simply durability. As is the case in many accidents and incidents, the cost of compromised safety is increased liability. In simple terms, safety pays. The way motorcoach insurance premiums are headed, and given the insurance industry’s general disinterest in risk assessment apart from calibrating premiums from track records, safety pays big. When it comes to the ADA, safety pays still bigger. Frankly, motorcoach operators cannot afford to not buy all the safety they can.
The motorcoach industry has not slept through these haunting dynamics. The American Bus Association’s Bus Industry Safety Council is nearing the completion of a full-blown driver training manual. Recently, during an almost 12-hour, two-day session, the Council devoted several hours to the discussion of training to accommodate disabled passengers. References to another agency’s (Easter Seal’s Project ACTION) two-day training documents addressing this issue – a document whose development was funded by USDOT, and is available free-of-charge to anyone who wants it – will be made in the BISC document. Mirroring the benefits which ABA and UMA efforts have yielded at the equipment level, these tools will greatly streamline compliance costs at the operating level.
The considerable savings in both capital and operating costs which these efforts represent will translate into big risks for those failing to take advantage of them. Under these circumstances, one would be foolish to not embrace the ADA. A disabled incident victim’s attorney will be certain to point this out in the courtroom.
Context and Comparison
Perhaps competitively, different cultures define themselves in terms of different standards. The Japanese argue that one can gauge the decency of a culture by the way in which it treats its most disadvantaged citizens. The motorcoach community should not begrudge ADA compliance. Nor should we kick and scream. Instead, we should brag about it.
Defendants in civil actions already have trouble arguing the trade-offs between safety and cost – even when the costs of certain safety equipment and services are considerable. U.S. transit agencies cannot hide from the fact that it did not take a “Europeans with Disabilities Act” to flood the continent with low-floor buses. Motorcoach industry members may have a far more difficult time hiding behind the failure to provide equipment and services which are largely free. Woe is the defendant whose case boils down largely to not bothering.