There is an old expression, “It is not what you know but who you know.” This may be true of job-hunting. But it is not true of liability. In the land of liability, the key is often “Where you were at.”
Red State, Blue State, Yellow Brick Road
In some states, a safe stop encompasses the area where the passenger steps off the bus, the area surrounding the bus, the intersection, and a reasonable distance along safe paths to or from the stop. In other states, the driver’s responsibility ends the moment the passenger’s feet leave the stepwell. In still others, responsibility is related to the specific characteristics of the mode. For example, greater passenger assistance is endemic to door-to-door or curb-to-curb paratransit services, where the passengers’ inability to reach the nearest fixed route bus stop is a primary justification for their eligibility to receive this special service. Without passenger assistance, the bus may as well not have wheels.
These differences can haunt carriers that operate across state lines, where the venue of a dispute may not even be clear. For example, if a charter passenger residing in Maryland (a “one-percent state”) is injured in Alabama (where immunity is expansive) while riding on a Virginia-owned motorcoach (accident reconstruction is prohibited in Virginia) on a trip to Texas (where punitive damages are unpredictable), what laws and principles apply? If a plane crashes on the border of a field, on which side do you bury the survivors? Do you walk to school or carry your lunch? Here, pick a finger – no, wait! Let me mix them up. To many, the principles governing liability are equally surreal, rootless, ambiguous and whimsical.
Liability and Responsibility
Liability is a legal proxy for responsibility and accountability, designed and intended to reflect and capture both notions. Yet liability varies more from state to state than do the decision-making and operating responsibilities to which it applies:
- In some states, finding the victim a single percent liable for an incident dismisses all claims against the remaining parties.
- In other states, the plaintiff must be responsible for 51% of the negligence in order for liability to be dismissed against the other co-defendants.
- In still others, “the pie” is simply split as jurors see fit.
Defendants similarly enjoy varying degrees of immunity from state to state. This provision often applies only to public agencies. When it does, the immunity is often limited to planning and system design activities. In such states, legal strategies may revolve around the classification of functions in which the negligence occurred:
- If a driver providing route deviation service selects a dangerous stop, is this a planning an operating error? This question is not so simply answered: One may argue that policies and procedures for services involving greater driver discretion should include better training for executing responsibilities ostensibly shifted from the planning to the driving level.
- Is a dispatcher part of planning and system design or part of operations? This too is not always so clear: Suppose the service is pre-scheduled? Suppose it is regularly-reoccurring? Such conundrums can obfuscate paratransit cases. But they may also reflect differences between charter and tour services. The line may become even blurrier when a charter driver provides an extra side-trip for a subset of the passengers, blurrier still if the driver did not receive permission from the dispatcher, and downright muddy if it violated the driver’s HOS requirements for the overall trip.
The outcome of cases, or their settlements, vary like day and night. But they may also hinge on wet versus dry:
- A transit driver discharged his disabled passenger into a coned-off construction area alongside a deep trench directly in front of a bus shelter dimly lit by the glow of retro streetlamps in the gentrified downtown area. In the victim’s own words, he alighted, and went “Step, step, drop.” At trial, the foil was provided by a juror: Passing through the lobby during a recess, she mimed someone tripping over his own feet. Because plaintiff’s counsel focused its case against the transit agency, the co-defendant public works department did not even engage an attorney. Perhaps for this reason, the same jury mocking the plaintiff awarded him $300,000, yet directed the public works department to pay all of it – effectively dismissing all claims against the transit agency. So much for evidence.
- Taking advantage of the time lost when caught in a red light before reaching his far-side stop, a transit driver expediently discharged his elderly passenger on the near-side of the intersection. While not appropriate, the landing area would at least have been stable had it not been poured only hours before. Instead, the passenger slid into a patch of wet cement, and emerged with a cement coating and a shattered ankle. The construction company argued that the area had been barricaded. While photographing hardened paw prints in the cement during my subsequent inspection of the scene, a passerby quipped, “Dinosaur tracks!” So much for barricades.
Many of these incidents would not likely have occurred if the drivers were held financially accountable for them independent of their employers (their employers’ liability is known as Respondeat superior). As a practical matter, of course, the average driver cannot afford to buy dust: One recent study found that the average bus driver runs out of money two weeks after receiving his or her final paycheck. Our legal system keeps them out of debtor’s prison. Of course, the fear of losing a driving position for someone barely treading water on the ocean of the working poor is not the deterrent it once was. Of course, these dynamics often sink his employer and his company.
Curve Ball in the Corner Pocket
Mirroring this mixed metaphor, the U.S. healthcare and legal systems combine to direct attorneys not only to deep pockets, but often to the only pockets. Forensic experts like myself are charged only with examining the evidence submitted to us. We are not allowed to speculate or guess. And we are certainly not allowed to soothsay. These habits emerge quickly in our society: When I recently accused my 8-year-old niece of eating some chocolate that had suddenly disappeared, she replied, “Can I speclify?” Experienced attorneys master such skills – often by limiting the evidence they ration to their experts. During one recent deposition where I opined that a school district and contractor were responsible for an incident where a motorist passing the bus ran over a pedestrian because the schoolbus driver did not engage the red flashers and stop arm as a policy matter, one attorney openly accused me of knowing that the motorist’s insurance carrier had already settled out of the case, and “spinning” my opinions accordingly.
An old saying goes, “In the land of the blind, the one-eyed man is king.” Similar rules also apply to the paupers. But in the land of liability, the combined landscape of deregulation, dismantling of the middle class and contingent fee have effectively painted targets on the buttocks of transportation carriers – particularly those in the private sector. Many high profile corporations have evaded taxes by relocating their headquarters offshore. But those providing physical services to individuals left on the mainland may be unable to escape liability when their negligence kills or maims them, depending of course on where it occurs.
Roar of the Greasepaint, Smell of the Crowd
Whether by virtue, fortune or folly, much of life resembles a board game. One may excel at rolling the dice. But such skill has its obvious limits. Rent on Boardwalk and Park Place is simply steeper than on Vermont and Baltic Avenue whether the dice flow from one’s hand or spill from a cup.
Such forces cannot help but influence investments in management and drivers. Correspondingly, they cannot help but undermine safety. A 1994 study by the Transportation Research Board found that almost five percent of a transit agency’s overall operating costs were allocated to “pay-outs.” Much has changed since 1994. One striking change, as noted, is that the risks have become increasingly dissimilar from state to state. In response, it mitigates more risk to employ top-notch staff – and enough of them – in Texas, California or Florida than it does in Maryland. Conversely, transportation is more affordable in the latter, if only because the exposure is significantly less. What impact all this has on safety should be obvious.
Pretty soon, motorcoach passengers may have to drive to Maryland just to find a bus. And their destinations may be limited to that state’s tourist attractions as their destinations. While I myself will take Manhattan, it is becoming increasingly difficult to find someone who can afford to take me there. For many motorcoach passengers, Broadway may soon be the Eastern Shore.