In the last installment of this series (July 2007, STN), we began discussing a crossing accident whose central issue was the contractor’s decision to permit five children to cross the street to board their school bus 10 minutes before it would turn around and return to the same location on the same side of the street on which they lived, and from which point they would not have to cross.
One side of the main road at the "T" intersection contained small houses, space relatively far apart and set-back from the roadway for enough to provide excellent visibility of activities occurring in their front yards. These houses lay on the side that the bus first passed by, before turning around. The opposite side of the roadway, on which the students lived, was surrounded by deep patches of forest whose thick foliage extended virtually to the edge of the roadway.
In defense of the bus contractor, I cited two facts:
- Records of crossing fatalities suggested that only a handful of school bus students were killed in crossing accidents every year. Reality is really not quite as warm and fuzzy. Most of the school children killed and seriously injured in crossing accidents are struck by third party vehicles – most of them passing school buses loading or unloading, with their red flashers engaged. I even acknowledged this gross undercount in my trial testimony.
- However, even multiplying the recorded figure by a factor of five (a rough percentage mirroring the ratio whereby only nine of the victims among the 45 crossing accidents in which I have been involved forensically were struck by third-party vehicles), even the genuine number of crossing fatalities that occur each year is practically negligible compared to the enormity of rapes and molestations – numbers which I do not believe are even tabulated as they relate to school transportation, on or off the bus. In contrast, my research uncovered the fact that, each year in the United States, there are 52,800 "non-family abductions." Half of them involve physical violence. One third of them involve molestation. More interesting for this particular lawsuit, one fourth of these abductions occur in or near the woods.
Citing these figures as the context for my opinions, I argued that the plaintiff’s interpretation of "the deal" made between the school bus contractor and the parents was not simply a matter of letting children cross who did not need to. Such a characterization was a gross oversimplification of reality. Instead, "the deal" between the contractor’s management and the parents really involved a trade-off. In return for the contractor allowing the children to cross and board 10 minutes earlier, the parents agreed to:
- Drive the children to the waiting area
- Wait with them at the waiting area, until the bus arrived (on the opposite side of the roadway)
- Direct their crossing
In the earlier era, when the children merely waited for the bus to arrive on their side of the roadway, the parents often trusted them to wait by themselves. As the plaintiff’s expert pointed out, that seemed to work, since none of them had been involved in a crossing incident yet. I argued that the key word in that equation was the word "yet." Far more importantly, I argued that the ri_____ of the "pre-deal" era may have been low in terms of crossing statistics, even if they were genuinely inclusive of all school bus-related crossing accidents and incidents. In contrast, however, the children’s crossing practices during that era involved enormous risk in terms of security.
Slicing the Pie, Placing the Blame
Rules for establishing liability vary considerably from state to state. In fours states, if the victim is even one percent at fault, the defendants walk away. (Look for "Safety and Liability" in the September 2006 issue of STN.) In a few others, blame may be assessed according to any formula the jury pleases. In most states, however, if the victim is 51 percent or more at fault, the other defendants simply "walk away," paying not a dime in damages. The incident described above happened in one of these states.
This state’s formula for allocating liability, and the facts and issues of the case, presented a challenge to the defendant’s counsel and technical experts: Our strategy had to both deflect the assessment of liability away from us, but also deflect at least half of it toward the plaintiff. Two quirks of the case, and that state’s legal system, helped:
- During the six years following the incident where the plaintiff sailed into the air after having been struck by an automobile, he had skate-boarded, skied, driven off-road recreational vehicles on motor-cross courses, and even played high school football. And the poor school performance that his attorney attributed to the incident seemed specious given the fact that neither his father or older brother had graduated high school.
- The trial was not "bi-furcated" whereby the assessment of damages would occur independent of the assessment of liability. As a result, the plaintiff’s post-incident lifestyle and his family’s sub-par educational achievements bled over into the jury’s feelings about the integrity of his case, and the justification for awarding him damages.
Properly-instructed by the judge, and keenly aware of the consequences of their findings consistent with that state’s liability assessment formula, the jury assessed 28 percent of the blame to the "den mother-du-jour," 21 percent to the school bus contractor (my client), and 51 percent to the victim. As a consequence, we walked away from the lawsuit without paying a dime in damages. Unfortunately, limped away might be a more accurate characterization when factoring in the cost of properly defending the contractor, and the enormous effort it involved.
Far more importantly, the outcome of this case underscored one of the most dangerously oversimplified failures in the school bus community: The failure to differentiate between the bus stop and the waiting area across the street from it. To the defendant’s good fortune in this particular case, the waiting area was exponentially more dangerous than the bus stop from a security perspective, and the risks involved dwarfed those related in crossing — particularly as it was directed by a parent. The jury had the good sense to factor these considerations into their blame-placing, and clearly understood the significance of the trade-offs between safety and security that the selection of bus stops and waiting area often involves.
“Non!” Pardonnez moi, but the French word for safety is “sécurité.” In other words, the French language does not even contain a word to distinguish between these two concepts. Perhaps France does not experience the same degree of non-family abductions. Regardless, our language clearly recognizes the difference between safety and security. Reflecting this recognition, we must acknowledge the importance of distinguishing between these two notions when developing crossing policies and procedures – just as we must recognize the difference between a bus stop and its waiting area across the street.
As death after death and lawsuit after lawsuit so clearly demonstrate, if we oversimplify these two sets of notions, we are begging for carnage. Even where the recognition of a bus stop and waiting area, and recognition of the trade-offs between safety and security were not central issues, I have found these considerations ignored in the majority of crossing-related lawsuits cases in which I have served as an expert witness.
In the Land of Lawsuits, get-out-of-jail cards don’t fall out of the sky or land in y our lap. You earn them. You earn them by purging your policies, procedures and practices of mythology and oversimplification. You earn them by proactively designing your system to reflect the factors and trade-offs that genuinely matter. You earn them by paying attention to the details. And most importantly, you earn them by the application of considerable thought and painstaking analysis to your development of routes and your selection of stops. This series of installments will help identify many of the building blocks. But it is up to you to translate them into a safe transportation system.