Indirect Accidents – Data Vacuum and Liability Bonanza

BACKGROUND

Despite decades of data collection activity, no organization to date has been able to accurately tally the fatalities or injuries related to public transportation-related accidents. Understandably, this shortcoming has been a serious impediment to the efforts of a National Research Council Committee formed recently to compare accident rates among the various public transportation modes used by schoolchildren for home-to-school and school-related travel. Among the many reasons accounting for the difficulty is the fact that a great many accidents or incidents involving, or caused by, public transportation vehicles were not – and are not – recorded as public transportation-related accidents because the vehicle was not physically involved in the accident. These occurrences are generally known as “indirect accidents.”

Indirect accidents take a variety of basic forms, which serve to illustrate the unusual range of accidents they encompass:

• A pedestrian is struck after walking into the street in front of, or behind, a bus.
• A passenger discharged at a poorly-designed stop is injured while trying to reach his or her destination.
• Alighting from a bus which discharged him from the non-designated side of an intersection, or which has not pulled to the curb, a passenger trips reaching for the curb she had expected.
• Dangerous behavior on the bus is ignored by the driver and, soon thereafter, spills out onto the street – where the violence escalates into murder or mayhem.
• A pedestrian milling about a motor coach is paralyzed after walking into its side-view exterior mirror.
• A cyclist is forced into an adjacent lane as a bus pulls out from its stop is struck by a car passing the bus.

In a perfect World, the relationship of the bus or van to such accidents would, of course, be noted, the accident investigated, and its causation established since the bus or van driver’s actions generally caused the accident. If they did not, at least that driver had the opportunity to witness the factors that did. Unfortunately, the trappings of modern, western civilization corrupt this process: Not only might the driver be blamed for the accident, and possibly punished for it, his or her employer will be blamed and punished for it. Making this even worse:

• The number of law suits is increasing
• The complexity of law suits is growing dramatically
• The size of damage awards is spiraling exponentially
• The cost of defending against a law suit is daunting – even if one wins

Further, these factors are compounded by a characteristic of tort law unique to the United States: We are the only country in the World where the loser of a civil suit does not have to pay the winner’s legal fees. This anomaly combines with the other factors cited above to create a situation where the risks of failure are so enormous that parties with no legitimate liability “settle” because they simply cannot afford the risks. Further exacerbating these circumstances is the fact that a third party – an insurance underwriter – often makes the decisions. Because that party’s obligations and risks are purely financial, cases are often settled for reasons only tangentially related to liability. In this tangled World of artificial values, the odds of winning a case have far more to do with decisions to defend it than do considerations of the liability itself.

While they may not understand the intricacies of these forces, most public transportation drivers are clearly aware of them and their dynamics. As a consequence, drivers involved in indirect accidents commonly ignore them – and simply drive away as though nothing had happened. As a consequence, management is often unaware of these accidents, and consequently, cannot investigate them. This deprives management of an opportunity to address the problems which may have caused the accident, and instigate measures to reduce the likelihood of similar accidents in the future. From a liability standpoint, however, management’s ignorance of an accident prevents it from collecting evidence which might otherwise absolve it of liability. Worse, when the driver (and its management) are “caught,” their failure to acknowledge the accident has the appearance of being deliberate. Consequently, this appearance of deceit amplifies most jurors’ belief about the defendant’s liability – even though they are generally unrelated as a technical matter. All this has the ironic consequence of imbuing a civil case with motive. While the only genuine crime may have been “hiding the evidence,” this finding “taints” the defendant, undermines its credibility, and increases the odds of a court or jury penalizing it in the awarding of damages. Such a revelation can take on Kafkaesque proportions when the defendant’s bus or van shows up as a silhouette on the police accident report dredged up by the victim’s attorney or expert witness. And if that expert then explains how he identified the vehicle and driver involved from the defendant’s own documents, genuine issues – like negligence or proximate cause – are all but forgotten.

COMMON ACCIDENT THEMES AND CAUSES

While the number of indirect accidents of each type are impossible to determine, anecdotal evidence provides exemplary information about their causes. From this evidence, the underlying causes of many indirect accidents are clear. Three of the most common themes are:

• Negligent stop selection and driver adherence
• Negligent loading, unloading and pull-outs
• Assault and rape

The errors and omissions in these three themes encompass virtually every management and operating functions from policy-making, planning and system design to monitoring, supervision, training and driving. While it is beyond the scope of this document to identify, much less explore, the errors and omissions which can occur in every management and operating function in every type of accident scenario, the negligence common to these three accident themes illustrates the diversity of errors and omissions which lie at the root of many, if not most, indirect accidents.

STOP SELECTION AND DRIVER ADHERENCE

Crossing accidents are the Achilles heel of bus transportation. The large vehicles obscure sightlines between the pedestrians and motorists. Poor stop selections induce dangerous crossing maneuvers. And deviations from designed intersection placement and precise bus positioning at stops introduces ambiguity and confusion into the otherwise straightforward task of alighting. Particularly vulnerable are school-age passengers formally taught to cross in front of yellow school buses, who often don‘t know or fail to remember that they are riding transit buses from which they must cross to the rear.

What makes crossing accidents so frustrating – and renders transit agencies so vulnerable to exposure – is that subtle errors in a range of policy-making, planning, system design, management and operating activities can lead to accidents even when the passengers cross as they are supposed to. Often, minor deviations from procedures have serious consequences:

• A high school senior playing hooky dashed off a transit bus, ran in front, and was struck by a car passing the bus.
• A middle school student alighted from a transit bus at a mid-block stop and, with no intersection at his disposal, J-walked into the path of a car passing the bus.
• An ambulatory passenger with Cerebral Palsy who was denied eligibility for complementary paratransit service was struck by a motorist when he attempted to cross a high-speed arterial street at the un-signalized intersection from which he was discharged.
• Thinking the front of a bus was a safe place to cross the street, an elementary school student walking home stepped in front of an unloading transit bus and was struck by a car passing it.
• One transit agency, incredibly, permitted its drivers to select the stops, and to accommodate the wishes of its full range of passengers in selecting discharge locations, as a policy matter. In the pre-dawn hours, one of its drivers discharged a middle school student at a virtual obstacle course where he was struck by a car immediately after stepping into the oncoming lane from behind the bus.

In none of these cases did the bus as much as touch the victim. More noteworthy, in only one of them did the transit agency escape liability.

LOADING, UNLOADING AND PULL-OUTS

Even when a vehicle is equipped with the latest visibility-enhancing technologies, the task of maneuvering a full-size bus is a difficult one for which drivers are trained for weeks. Because of centrifugal forces created by acceleration and deceleration, slips and falls immediately after boarding and before alighting are common. But also common are accidents which occur just before or after the passengers board or alight:

• When “caught in the light,” a transit driver discharged his passengers at the wrong side of an intersection, three feet from the curb. Because other passengers alighted in front of her, the victim didn’t realize the splintered curb was four feet from the bus until she was in the process of stepping off – at which time, of course, it was too late for her to avoid breaking her ankle, leg and hip.
• Missing a stop in the pre-dawn hours, the driver improvised a drop-off before the next designated stop and failed to announce it. Exacerbating this, of course, was his failure to announce any stops. So after finding he had alighted in unfamiliar surroundings, the ADA-certified, visually-impaired passenger tumbled down an embankment, injuring his leg such that it required amputation.
• A transit driver did not pull his bus parallel to a curb – a maneuver made more difficult by insufficient red-lining. Because this positioning obscured the driver’s view of the left-rear corner of the bus, he did not see a bicyclist passing it and, pulling out too sharply, forced her into an adjacent lane where she was struck by a passing automobile.

In all of these cases, the drivers not only failed to radio in the accidents or notate them on their logs, but left the scene altogether. In the latter case, the transit agency’s defense was, foolishly, based on its inability to identify the bus involved – an identification easily made by the plaintiff’s expert. All three cases were settled handsomely after the plaintiff’s expert enumerated the litany of errors and omissions in management and operations – including management’s failure to identify, much less investigate, the accidents.

ASSAULT AND RAPE

What better opportunity can someone with a psychological agenda have than transporting vulnerable passengers in a “system” with no routes, where scheduled stops are provided within “windows” of error, and where lead or operating agency personnel rarely compare scheduled pickup and drop-off times to those actually made? Such opportunities have been expanded significantly in the ADA era of complementary paratransit service: The obsession with on-time performance, and preoccupation with the “freedom of choice” provided by immediate-response service, have translated into system efficiency so thin that a large percentage of trips or trip segments involve only a single passenger on board.

That rapes and assault occur in this environment should hardly be surprising. From the perspective of a driver in such a system, how credible could the uncorroborated testimony of a mentally-retarded or emotionally-disturbed passenger be? As a consequence, mentally-retarded women, girls and boys are molested – sometimes regularly – by drivers, both on and off the vehicle.

• In one recent case this author investigated, the driver took the victim to his apartment and, after raping her, transported her to her scheduled destination on time.
• In another, the driver raped the victim on the floor of his minivan in a fast-food parking lot.
• In another, the driver induced an elementary school pedestrian onto his van where, after failing to molest him, the driver beat him to a pulp and left him for dead in the gutter (he lived).
• In still another, a 200-lb. bully molested the only other passenger on board – and the driver claimed he did not notice.

None of these incidents appeared as a blip on a driver’s log, dispatch log or incident report. Needless to say, proving these transgressions – and identifying the considerable negligence involved – was child’s play for a transportation professional familiar with paratransit management, operations and system design.

Transit systems have their counterparts to these incidents.

• In one case, a high school student chased a bully off the bus and was beaten to near death by the bully and his fellow gang members. While the driver lingered to watch the drama unfold, he failed to open the door to permit the now-fleeing victim to reenter, and failed to radio his dispatcher for assistance.
• In another case, the driver could not radio in while a verbal argument escalated into a multiple shooting: The entire fleet’s radios – obtained under a separate capital grant – were inoperative.

MONITORING

Negligent monitoring is the Achilles Heel of public transportation. No other aspect of operations is as poorly performed. Not only does negligent monitoring lead to accidents, it leads to liability. So it should come as no surprise that marginal or non-existent monitoring is a constant theme in most indirect accidents.

Because monitoring is the one operating function that illuminates the exercise of all other operating functions, negligent monitoring provides a “field day” for enlightened plaintiff’s attorneys: If countless errors and omissions occurred, and if policies, procedures and training programs were thorough, the only conclusion one can often draw is that no one bothered to notice whether or not they were properly executed. And because no supervision is possible without it, no monitoring equates with no supervision – an omission far more easily understood, and rarely tolerated, by judges and jurors. And, of course, with no monitoring or supervision, there can be no enforcement. It doesn’t help defendants when key system officials cannot even describe monitoring efforts, much less demonstrate that they were conducted (much less how). Surprisingly or not, few risk management “professionals” can describe monitoring in the abstract; fewer still can describe the forms it takes in their systems. As noted above, this deficiency is particularly acute with paratransit and special education services.

LIABILITY RISKS AND TORT BONANZAS

Pretending one doesn’t know about an indirect accident may seem like a reasonable way to avoid exposure. After all, how could a bus be the cause of the accident when its own driver didn’t know about it? The folly of this thinking is, of course, that every accident comes with a victim – not to mention other witnesses.

When the victim’s attorney and expert begin dredging up the evidence, the defendant’s ignorance or denial begins to exact a toll. To begin with, once the defendant is caught in “the lie,” its credibility in general is lost, often irretrievably: If the defendant lied about the accident even occurring, how believable can claims be that it was not negligent? Further, one’s ignorance of the accident altogether provides proof, de facto (or res ipsa loquitur, in legal parlance), that the monitoring effort was less than perfect. More serious, of course, are the implications that the defendant is “covering up.” Woe be the transit agency whose vehicle is depicted in a diagram on the police report. Even less fortunate is the agency whose vehicle is identified by simply matching up the police report or witness statements with documents the agency turned over to the plaintiff’s attorney as part of the Discovery process.

Clearly, denial may turn out to be a lucky defense – especially given the haphazard pairing of victims with skillful or unskillful attorneys, and their general reluctance to expend resources on technical experts. The danger offsetting this is, of course, that when the agency is “caught,” its negligence is shrouded in deceit and indifference. While these revelations have no technical value in a civil case (after all, the accidents were hardly intended, much less premeditated), few jurors understand this. Far more likely, jurors will exaggerate the damage awards substantially – if for no other reason, to punish the defendant for trying fool them.

CONCLUSIONS

In transit and paratransit accidents, “indirect” does not equate with “invisible.” When a transit agency or contractor fails to identify an accident, the potential liability increases. While this failure is after-the-fact, it can “color” a judge or jurors perceptions about the importance of errors and omissions that actually related to the accident.

In the artificial World of civil court, the risks of feigning ignorance can translate into damage awards or settlements considerably higher than would otherwise accrue:

• In one case, a pedestrian “hanging around” a parked motor coach didn’t look where he was going and walked into the mounting bracket of an exterior side-view mirror. The mirror bracket contained a swivel feature permitting it to fold up against the coach body. After the manufacturer claimed that the mirror and door combination were the only ones available on that model, its option list identified not only other mirrors available for that door, but other doors available. The purchase order then revealed that neither the door nor mirror were the ones ordered by the operator. Worse yet, quality assurance documents revealed that inspectors found and noted the discrepancies, but that the manufacturer didn’t replace them. Rather than have its “person most knowledgeable” play Pinocchio in civil court, the manufacturer settled for $350,000. Rather than admit it used the “tuck-in” feature whenever the coach was washed, the operator settled for $950,000.
• In another case where a transit driver drove away from the scene after his improper pull-out forced a bicyclist into an adjacent lane of traffic, the agency claimed it could not tell which bus it could have been. The plaintiff was so inept that she admitted not even noticing the bus until she practically ran into the back of it. Unfortunately, the transit agency had to explain how it was that the plaintiff’s expert could identify the bus “in minutes” from the defendant’s own operating documents. Rather than do this, it doled out a handsome settlement.
• A middle school student was struck by an automobile traveling in the opposite direction of his school bus when he crossed the street from behind it. (Remember: Children are supposed to cross in front of school buses.) The driver claimed he didn’t know about the accident until, minutes later, his route looped around and passed the accident location – a point on the route where the driver could have discharged the passenger on the same side of the street as he lived. Because this victim was not maimed like most crossing accident victims, he was able to explain how, two days earlier, the same bus driver nearly ran him over when he, properly, began to cross in front of it.

The lesson from all this is that if you don’t find out about your own accidents, someone else very likely will. In the surreal environment of U.S. civil court, it can cost far less to find them yourself.