With innovation after innovation, buses and coaches have been increasingly equipped with a bounty of features to make passenger travel safer and more comfortable. So one would think their manufacturers could figure out a sensible way to get them on and off:
- When the rear door of an articulated transit bus closed on her daughter while she was alighting, the plaintiff lunged at the vertical door handles from atop of the stepwell, and successfully pushed the doors open, freeing her daughter before the bus could presumably drag her down the street. (Passengers are generally unaware of features like interlocks, which prevent this mishap.) But as the doors swung open, and the plaintiff fell forward, the outward rotation of the handles fixed to the doors practically ripped her arms out of their sockets. Not only did the door contain no sensitive edges, but the curb-side, exterior, side-view mirror was mounted to the front door: When it opened, the mirror rotated around so that the driver was unable to view the danger zone to the rear.
- When the rear door of another transit bus closed began closing before the plaintiff could alight, she pushed on the door panels – which opened with such little force that she not only tumbled out of the stepwell, but apparently reacted to the effortless opening force such that she flew out feet first. During my inspection of this vehicle, I discovered its rear door also contained no sensitive edges – as it closed neatly around my foot.
- A young, internationally-recognized brain surgeon chatting with a colleague alongside a motorcoach stepwell admittedly did not look where he was going after his colleague boarded the coach – and walked smack into the curb-side, exterior mirror, instantly fracturing two vertebrae, and ending a lucrative medical career. The exotic, European-manufactured swing-out mirror was not tucked in during the coach’s long dwell time – although, when deposed, the driver admitted tucking it in for bus-washing purposes. Both the operator and manufacturer settled out of this case so quickly that I did not have a chance to introduce into evidence the manufacturer’s European product brochure showing the very same model with a raised, curb-side exterior mirror.
- A schoolbus manufacturer designed an irregular stepwell to accommodate the interior penetration of a jackknife door (most schoolbuses employ bi-fold doors). All four steps were not only trapezoidal, and vastly dissimilar in tread dimensions and surface area, but both tread depths and riser heights were different from step to step. Helping an ambulatory disabled student descend the stepwell, an attendant apparently began her cha-cha on the wrong foot and, stepping onto the phantom portion of the smallest of the four steps, tumbled forward down the rest of the stepwell.
- In still another case (see “The Mysterious Force,” National Bus Trader, December, 2001), three transit passengers – including one seated on the street side of the aisle – were thrown through a closed rear door into the street before the bus completed its left turn from a traffic signal which had just turned green. Previously, drivers had been stopping their buses by shifting into neutral and pushing the rear door open button, effectively shuddering the bus to a stop by triggering the interlock. Instead of firing these drivers, the contractor’s mechanics “rewired” the interlock to bypass the neutral and brake switches. So while the former ploy no longer worked, one could now open the rear door so effortlessly that virtually every forensic investigator (other than myself) failed to realize that even the worst-designed or -maintained door could not suck passengers out of the bus. This tampering and its results were so extraordinary that they misled practically an entire accident investigation team – and cost a combination of co-defendants millions of dollars in settlements.
One of the important conclusions one should draw from these examples is that operating errors commonly compound design errors. At the liability level, this phenomenon does not so much permit manufacturers and operators to assign blame to one another as it gives plaintiffs’ attorneys multiple defendants who generally sink together.
Form Follows Fantasy
The fundamental principle employed in the serious design of practically anything is that “form follows function.” The application of this principle to stepwells and doors should be simple:
- With the exception of “passive lifts” (which convert stepwells to lift platforms), stepwells should not move while passengers are boarding and alighting. If configured according to the nearly-uniform riser height and tread depth relationships common to the architectural standards which passengers experience regularly throughout their lives, stepwells will vary little from other combinations of steps these individuals encounter – with the exception of the bus’ or coach’s bottom-step-to-ground distance. When this last increment is significantly greater than the normal riser height, as it almost always is, a fold-down step or portable footstool can be extended or planted by the driver, and he or she can assist passengers in using it.
- There are only four basic forms of bus or coach doors, ranging from least- to most-expensive: Plug, jackknife, bi-fold and pantographic. Only plug and pantographic doors are common to motorcoaches, although rare over-the-road coaches contain jackknives or bi-folds. Because every passenger is accustomed to sensitive edges on elevator doors and other entrances and exits through which they routinely pass – in facilities which do not possess the ability to drag them down the street – they reasonably expect similar features on bus and coach doors. And because they are also not accustomed to having doormen close doors on them, they naturally do not expect this treatment from bus drivers.
One wonders what makes these principles so hard to follow in bus and coach design.
Latent and Patent
From a liability perspective, design defects are problem enough when latent. The same principles do not apply to patently dangerous objects – i.e., with objects whose dangers are readily apparent. Of course, no reasonable defendant would argue that the defects cited above were so obviously dangerous that the average person should reasonably have noticed them. After all, the items at issue are not knives or lathes: They are doors and steps.
Signs of the Times
As if the door-and-stepwell cake is not decontaminated enough, it is further poisoned by its toxic frosting: Nincompoop signage. Bus and coach passengers have enough trouble stumbling down negligently-designed stepwells and avoiding the crunch of poorly-designed doors. But their travails are compounded considerably by confusing and often ambiguous signage that practically lures them into danger. One of the transit buses alluded to above had “Beware of Danger” signs mounted to the inside of the rear doors – suggesting that they would open inwardly – although the signage was probably intended to mean, “Do not ride in stepwell.”(I doubt this agency’s defense counsel would argue that this sign meant it was dangerous to step off the bus during the alighting sequence.) Above it were signs which described door opening sequences not only incorrectly, but incorrectly in two different, contradictory ways. Passengers are thus required to not only view these descriptions in seconds, while alighting (during which time they can generally not see all of the signs at a single moment), but decypher often insolvable puzzles in the process.
Not to focus undue attention on generally excellent coach manufacturers, one must still wonder how the same manufacturers whose clever engineers recently solved the capacity problems otherwise associated the ADA requirement for lifts (through the use of quick-release-and-re-space track-seating systems) continue to offer spiral staircases. Should it arise in the courtroom, such manufacturers may be hard-pressed to justify their obvious trade-off between safety and style.
Partners in Tort
Bus and coach manufacturers cannot always argue that drivers render their products unsafe. After all, their products are designed for drivers. Knowing that drivers tend to make certain types of mistakes is a cardinal principle of bus and coach design. In the courtroom, this notion translates into the principle of “reasonably foreseeable.” Conversely, bus and coach service management cannot argue that standards for their employees need not reflect the dangerous products at their disposal. In deploying these products, these managers “assume certain risks.” The remedy to these faux notions is to not make the vehicles dangerous in the first place, and to use them carefully irrespective of whether or not they are. These principles are embodied in law by the designation of motorcoach service providers as “common carriers” – bound to the highest standard or duty of care.
Among my countless discussions with wheelchair lift and securement manufacturers, I have often suggested – somewhat facetiously, somewhat wistfully – that the best way to mitigate many securement-related accidents I continuously examine is for a light and buzzer to engage, on the dashboard, the moment the lift platform reaches the floor level, so that the only way to shut them off would be to secure the wheelchair properly at all four securement positions. Recently, one manufacturer I spoke with told me, “We make that.” When I asked him, incredulously, why I had never seen one, he replied, “We only sell these in Europe. There’s no interest in them here.”
Blaming it on the Cue
As a commercial reality, manufacturers can argue vigorously that bus and coach purchasers specify and order vehicles, and that manufacturers cannot be competitive if they do not offer what the customers want. Similarly, bus and coach purchasers may argue that they rely – often “to their detriment” – on the manufacturers to offer them safe products. Neither of these arguments is terribly convincing in a courtroom.
When I work on the plaintiff’s side of cases, I generally advise (and usually persuade) my counsel to not blame operating failures on bus and coach manufacturers. Sometimes, however, like those in cheap poolrooms, the cue really is bent. As any pool shark or juror knows, all one has to do to tell is to roll it over. Like the song goes, you can blame it on the bossa nova. But do not dare blame it on the cue.
Occasionally I advise the reverse: Do not blame the vehicle’s operator for a product defect. However, as noted, handling dangerous objects does not alleviate one’s responsibility for being careful with them. Kindergartners are taught how to hand over a pair of scissors, and how to safely carry a chair. In a society where such individuals are generally transported to school on vehicles which stop traffic, woe is the defendant exercising much less caution or care in the provision of their, or anyone else’s, public transportation service. Special penalties – known as “punitive damages” – lie in store for those failing to exercise concern.