Instinct and Indignation

A fundamental doctrine of U.S. civil law holds employers accountable for the conduct and performance of their employees when negligence occurs within the scope of their employment. This doctrine is known as respondeat superior.

The principle of respondeat superior has sweeping implications for the provision of goods and services: Among them, since the employer is responsible for its employees’ conduct and performance, it has an implied responsibility to monitor them. Unfortunately, monitoring is the Achilles Heel of public transportation. Insufficient or non-existent monitoring lie at the root of virtually every accident or incident. But even when monitoring is conducted, drivers may still deviate from established policies and procedures.

Plaintiffs’ attorneys generally have an easy time picking apart a defendant’s monitoring efforts because drivers who deviate from established policies and procedures generally do so regularly and consistently. Jurors may excuse an occasional deviation, since its detection can be difficult. They are less likely to excuse a regular pattern of deviation. Further, when a pattern of deviation occurs, the inference arises that the deviation was condoned. This determination not only tempts a finding of punitive damages but, as a practical matter (albeit not a legal one), shifts the burden of proof from the plaintiff to the defendant.

With so much at stake, I have always been puzzled by the failure of management to detect so many obvious deviations in a procedure as fundamental as helping passengers off the bus. Less puzzling are the reasons why these deviations occur in the first place.

Apathy and Aversion

Particularly when errors and omissions have been made in policies, training, vehicle selection and specification, drivers can get hurt assisting and even spotting passengers:

  • Committing an ADA violation, a national passenger rail system failed to contract for lift-equipped motorcoaches to provide feeder service to and from an outlying station. Before alighting passengers, one driver cleverly vanished, leaving the railroad station attendant with the task of spotting passengers at the bottom of the stepwell. An elderly stroke victim whose wheelchair had been stowed in the luggage bays began to fall down the stepwell. The attendant caught him, breaking his fall and preventing him from suffering any injuries. In the process, she severely injured her back.
  • Another driver caught a 300-pound passenger falling down the stepwell, completely preventing her injury, and incurring none himself. But the experience deterred him from helping any future passengers. So a month later, when a 105-pound elderly woman fell down the stepwell, he had long since abandoned the practice of spotting, did not catch her, and she almost died from the injuries. (From a liability perspective, “almost” dying is generally more costly than dying.)
  • A schoolbus attendant, assisting a physically disabled, special education student to alight, tripped in the irregularly-configured, trapezoidal stepwell and, while still holding the passenger, spilled out of the bus.

Presumably because of such close shaves, or at least a fear of them, many drivers not only fail to help passengers alight, but do not even spot them properly – as is the minimal custom-of-the-trade in motorcoach operations:

  • Returning to a church parking lot late at night from an out-of-state shopping spree, a motorcoach driver pulled adjacent to the lot, opened the front entrance door, engaged the emergency brake, and charged off the coach to find a bathroom, leaving his passengers to descend the stepwell by themselves. An elderly man carrying a stroller in one arm and a large shopping bag in the other stepped off onto a short section of curbing and slipped on its rounded corner. His ankle collapsed, and he roiled into the gutter.
  • Picking her up from treatment on her already-dysfunctional feet, a paratransit driver operating a lift-equipped minibus directed an elderly, diabetic, visually-impaired, walker-user carrying an oxygen tank to board via the stepwell, watched her shin clang into the edge of the top step, and stood transfixed as she reacted to the pain by tumbling backwards down the stepwell.
  • A motorcoach driver watched from his seat as an elderly passenger did not notice the out-of-square, deficiently-sized and poorly-designed automatic step extension reaching outward from beneath the bottom step. As she stepped to the ground, she clipped the outer edge of this contraption and somersaulted off the coach.

Most motorcoach drivers know they should stand poised at the bottom of the stepwell and either offer their arms to alighting passengers, or grab a hand and/or arm to physically help them off the bottom step. Of course, it would be far safer for both passengers and drivers if the stepwells were wider, if they were consistently rectangular, if all steps were of uniform tread depth and riser height, and if oblique handrails were installed on both sides of the stepwell parallel to, and roughly 30 inches above, the imaginary line running through the outer edge of the steps. It does not help defendants when plaintiffs’ attorneys point out that these characteristics are common to every stairwell the jurors have ever used in a building during their entire lives.

Similarly, it would help safeguard both passengers and drivers if the drivers physically ascended the stepwell and proactively assisted selected passengers to alight – or at least carried their bags or packages down and placed them on the ground before returning to the spotting position. Screening for such assistance might involve rigorous questioning like, “Will you let me help you?” Most jurors would recognize the ease and simplicity of such an inquiry instantly. What they would likely find puzzling is why the professional driver never thought of it. I they learn, instead, that the driver’s failures violated company policies, they can only wonder why such policies were not enforced.

Making Matters Worse

In many states, public agencies maintain immunity or limited liability in matters involving policy-making or system design. However, when sound policies are in place, the failure to monitor and enforce compliance with them is a management matter, and permits plaintiffs’ attorneys to circumvent this immunity – an immunity which rarely extends into “operations.” Of course, this immunity also applies only rarely to private companies.

The consequences of negligent monitoring are often compounded when the driver is not disciplined, much less terminated, as a result of the incident. While an after-the-fact observation generally inadmissible as a procedural matter, clever plaintiffs’ attorneys always manage to find ways to introduce such admissions into evidence: “So, Mr. driver, I understand you are still working for the defendant.”

While acknowledging that “spotting” is the custom-of-the-trade in motorcoach operations, I have regularly argued that drivers would do well to exceed this standard. This is particularly true given the fact that roughly 60 percent of motorcoach passengers are elderly.

Safety and Ridership

Even apart from the safety and liability issues, it is hard to know how much business the limited provision of passenger assistance deters. This is largely because boarding and alighting are often the limiting factors in the use of public transportation for a significant share of potential customers. Were this not the case, coaches would not have kneeling features or wheelchair lifts, and drivers would not deploy footstools – including those literally built into many coaches (although these problematic options have disappeared from the specification landscape). In the transit world, were boarding and alighting not issues, we would also not have complementary paratransit service, or at least have far less of it.

As a marketing curiosity, I am continually puzzled by the industry’s reticence to even acknowledge, much less advertise, the significant safety benefits of bus and coach travel compared to that of other modes – benefits established dramatically by a recent National Academy of Science Committee on which I served. Particularly as most modern motorcoaches contain both kneeling features and wheelchair lifts, the failure to regularly employ and advertise these features represents a serious failure to tap more deeply into the industry’s primary market. These features also cannot be ignored as a liability matter: Having a wheelchair lift available for, but not used by, mobility-impaired passengers not only compounds the liability already associated with boarding and alighting incidents, but may smack of negligent indifference and reckless disregard – in many states, the magic words triggering an assessment of punitive damages.

Hazards and Hassles

In truth, solutions to this problem like widening the stepwell (obviously not as a retrofit) may bear considerable costs, such as eliminating two seating positions – although far more likely it would simply translate into a few curb-side seat rows being spaced a tad more closely together. In contrast, constructing a simple, rectangular stepwell with intelligent handrails is likely to cost less. Similarly, the extra time consumed by expanded passenger assistance procedures might create an unrealistic burden for certain sectors of motorcoach service – particularly sight-seeing and commuter/express services involving multiple stops. But even on these services, those passengers requiring higher levels of assistance could simply be alighted last. Here again, the PA system screening announcement would be relatively straightforward: “For those of you who need some help to alight, please let the other passengers off first, and I’ll step back on board and help you down.” Not exactly a tongue twister.

As a liability matter, announcing and offering higher levels of passenger assistance may reduce the defendant’s exposure even if the offer is not accepted: When not accepted, the responsibility for a mishap will likely shift from the driver to the passenger. Such an approach would not apply to areas, such as wheelchair securement, where the assistance is intrinsic to safety and should be provided irrespective of passenger preference. But as a general rule, where passenger assistance makes sense, the mere offer to provide it may reduce one’s exposure even if the passenger declines.

Closing Arguments and Sugarplums

The naivete and disinterest some coach manufacturers display with respect to liability continually surprises me. At one recent trade show, I questioned a coach manufacturer about its highly-irregular stepwell. With a euphoria bordering on glee, the salesman waxed that a study the company had recently conducted demonstrated that an entire coach full of elderly passengers could alight an entire minute faster from such a stepwell configuration. Closing arguments danced in my head like sugarplums, reminding me of an episode of “The Odd Couple:” Tiring of the turmoil in Manhattan, Felix went to work in his brother’s bubble gum factory in Buffalo. Needing to create a position to accommodate him, his brother appointed Felix the “Head of Marketing.” Three days later, trying out Felix’s first innovation, his brother exclaimed, “Uhhh. It tastes like broccoli!” With unrestrained passion, Felix exclaimed, “Yes!!” Experiencing the fallout of such decision-making at the litigation level, I am continually surprised by the quality of thought given to certain aspects of bus and coach design. But I am equally surprised by corresponding thought at the operating level.

Histrionics and Harbingers

Once upon a time (1975, actually), a few people thought that putting wheelchair lifts on buses was a good idea. As a transit industry consultant, I was initially opposed to this notion because I felt it would translate into a dilution of door-to-door paratransit service – the form of public transportation most disabled individuals genuinely need. I turned out to be correct: The transit landscape is now littered with inept, two-trip-per-hour paratransit operations with eligibility restrictions that often exclude many electric wheelchair users yet still manage to drain the operating budget. In the scheme of things, resistance to full accessibility mattered not: By 1991, with the advent of the ADA, the transit industry found itself saddled with both lift-equipped buses and complementary paratransit service. After a point, getting it right no longer counts.

If I had admonished the transit industry in 1976 to embrace the mandate for “full accessibility” instead of fighting it, most industry insiders would have considered me a fool. As a historical footnote, President Reagan actually repealed full accessibility in 1980. Of course, by that time, all 50 states had parroted the Federal regulations at the state level, and no state legislator had the guts to repeal its counterparts. So when the ADA was promulgated 11 years later, most transit buses already contained lifts, and the fixed route portions of the mandate were filigree. However, the transit industry’s constant whining and recalcitrance about accessible fixed route transit was an important factor in the mandating of complementary paratransit service.

Profits and Profiteering

If you think motorcoach industry profits are thin now, just wait until the Federal government mandates door-to-door service for those of our passengers who cannot board or alight from an accessible motorcoach.

If we do not wish for this to come about, we would do well to do a better job with the stuff we already have. If we do not, I myself will not be the one to suffer. Paratransit cases represent a thick slice of my forensic practice. And I can probably write some swell columns for National Van Trader.

Publications: National Bus Trader.