New York, NY
Liability Flashpoints in Transit and Paratransit Operations
TECHNOLOGY, EXPENDITURES AND RESULTS
This past decade has witnessed an explosion of technology designed to improve public transportation safety and insulate its providers from liability. What hasn’t changed is the nature and working environment of drivers. In particular, the public transportation landscape is devoid of any breakthroughs in monitoring or supervision. So despite all the technology – and in some cases as a result of it – the same old accidents continue to occur for the same old reasons. From both a safety and liability perspective, these accidents are growing far more costly: The frequency of law suits is increasing, and the size of damage awards appears to be growing exponentially. As a consequence, the need to identify accident causes is becoming more and more critical.
With its emphasis on detail, the tort litigation process provides an unusual perspective from which to examine patterns of accident causation. Without this process and environment, many of the common elements underlying accident causation which are not at first noticeable can be identified. Because these common elements may lead, directly or indirectly, to considerable damage awards, they may be termed liability flashpoints. Because their detection is possible, minimizing or eliminating them can have a dramatic effect on both the reduction of injuries and fatalities and the assessment of monetary damages.
ACCIDENT CHAINS AND THE LIMITS OF TECHNOLOGY
Eight combinations of fundamental accident types and causes – or accident chains – are overviewed below. Among other things, these accident chains illustrate why technology is almost irrelevant to so many transit and paratransit accidents, and so futile in preventing them:
- Slips and Falls. When drivers don’t pull into and away from stops smoothly and gradually, passengers can be thrown about the passenger compartment from the centrifugal forces exerted on their bodies by the vehicle’s movement. Standees are obviously the most vulnerable to these forces.
- Overloading and Priority Treatment Violations. When vehicles are overloaded beyond their GVWR, the ability of their suspension systems to counteract centrifugal forces of even normal and appropriate driving is compromised. Exposing elderly or disabled standees to these forces is a formula for accidents.
- Stop Selection and Intersection Placement. When stops are poorly designed or selected, or when drivers don’t pull into designated stop areas, passengers may become disoriented when alighting and crossing.
- Vehicle Placement and Mirror Usage. When buses are improperly positioned at stops, drivers are often unable to see pedestrians, bicyclists and other vehicles. Even obstacles generic to transit service – like advertising placards on bus shelters – can obscure a driver’s vision through the mirrors.
- Equipment Availability and Radio Procedures. Two-way radio communication is critical to safe and secure bus operation. Where such equipment is available and operable, drivers may jeopardize the well-being of passengers and non-passengers if they fail to use it.
- Wheelchair Securement Devices and Seatbelts. Failing to store securement devices after unloading wheelchair occupants, drivers cannot determine whether or not straps are secured to floor mounts, much less adjust or tighten them. When drivers do not properly secure these straps to the floor or wheelchairs, and/or fail to secure the passengers into them, centrifugal forces generated by tiny deviations from normal driving may fling wheelchairs about and jettison their occupants.
- Loading, Unloading and Passenger Assistance. Given their need for physical assistance, disabled and elderly passengers are vulnerable to errors and omissions in passenger assistance, and vulnerable to lapses in the continuity of its provision.
- ADA Compliance and Micromanagement. A lead agency’s preoccupation with liquidated damages and other administrivia can overwhelm a paratransit operating agency, detracting from its ability to provide safe, personalized transportation.
- Ineffective Monitoring, Enforcement, Rape and Mayhem. Vulnerable paratransit passengers can easily be molested by drivers or fellow passengers when management fails to monitor schedule adherence and other aspects of service.
ERRORS, OMISSIONS AND THE MANAGEMENT HIERARCHY
The accident chains cited above almost always involve driver error. But they can also reflect ambiguous policies and procedures (e.g., letting drivers select the stops), poor planning (e.g., running times exceeding cycle times), poor system design (e.g., stops placed at dangerous intersections opposite schools), poor management (e.g., assigning drivers to parts of the service area with which they are unfamiliar), poor purchasing and specification (e.g., no radios), deficiencies in training (e.g., radio procedures), poor or non-existent monitoring (e.g., no review of drivers’ logs or pre-trip inspection check-outs) or poor maintenance (e.g., defective securement device floor mounts). Many rudimentary procedures performed negligently are described clearly in policy documents and training materials. These errors and omissions, and their contrast to properly-described procedures, are easily identified by personal injury attorneys. Their significance increases as technical experts link them to errors and omissions made further up the management hierarchy – negligence about which jurors are far less forgiving.
Once a plaintiff’s attorney “locks in” to the discovery of rudimentary negligence, his or her expert witness is likely to find the errors and omissions less apparent to the casual observer. These related errors and omissions often “set the stage” for the errors and omissions made by drivers. Or they provide the context or environment within which driver errors and omissions translate into injuries or deaths. But even where errors and omissions above the driver level are not the proximate cause of an accident, their identification helps to “color the defendant negligent.” When plaintiffs’ attorneys and their experts familiarize jurors with the layers of transportation planning, management and operating functions which lie “below the surface,” and explain their relationship to the more obvious errors and omissions which they naturally understand, defendant’s attorneys have a difficult time arguing that certain links in the chain of negligence did not matter. While there is often enough negligence below the surface to fill a bus (or a courtroom), rudimentary errors and omissions open the doors.
SAFETY AND LIABILITY
Safety and liability are clearly cousins. But they are not siblings, much less twins. And they are hardly synonymous. Greatly complicating their distinction is the fact that, on occasion, our legal system encourages one to undermine safety in order to reduce exposure to liability.
One common illustration of this dilemma can be found in crossing accidents. Safety considerations require one to cross in front of a school bus and in back of a transit bus. Because many schoolchildren use both types of buses, a significant number of crossing accidents understandably involve schoolchildren. In response to concerns for both safety and liability, transit agencies and school districts have increasingly begun to teach schoolchildren how to cross after alighting from a transit bus. But this practice presents a conflict, particularly to younger schoolchildren: K-2 students have enough trouble simply remembering to cross in front of a school bus. If also taught to cross in back of a transit bus, students alighting from a bus of any type would now have to ponder (a) “What kind of bus was I just on?” and (b) “What kind of crossing correlates with that kind of bus?”
This dilemma illustrates how complex safety measures often are, and why the design and implementation of many safety programs must be conducted with great caution. Crossing accidents, in particular, illustrate the costs – in both human and monetary terms – of the transit community’s long-standing isolation from other public transportation communities. The importance of including experts from these other communities in planning, system design and training activities is a critical element of responsible risk management – even though such interaction is rarely factored into it.
LIABILITY FLASHPOINTS AND ERROR CHAINS
In the examination of accident causation, the repetition of\C2 the same errors and omissions, from accident to accident, is striking. More striking is the almost simplistic nature of the frequent lowest common denominators of so many of these errors and omissions. The principal point argued in this analysis is that, because they (a) are so fundamental, (b) occur so often, and (c) occur in such frequent combination with one another, the root causes of a great many accidents can be identified and prevented. Because these causes often comprise the “linchpins” of tort actions, these errors and omissions, similarly, are the key determinants of liability and damage awards. So eliminating or minimizing them is also the key to avoiding lawsuits and limiting exposure.
Because so many accidents involve clusters or chains of specific errors and omissions operating in conjunction with one another, removing a link in the chain – sometimes any link – may render other errors and omissions harmless or moot. Similarly, reducing the number of errors and omissions – apart from the types of errors and omissions – will translate into disproportionately fewer accidents. No other conclusion can be drawn from the fact that literally dozens of errors and omissions are commonly identified in transit and paratransit accidents. It follows from all this that efforts to minimize the number of errors and omissions in general, certain types of errors and omissions, and certain combinations of errors and omissions – or “flashpoints” – is a sound and cost-effective approach toward risk management.
One curious theme running through many transit- and paratransit-related accidents is that the vehicle does not come in contact with either the victims – or anyone or anything else. (This topic itself is the subject of another paper included in this Conference’s Proceedings.) However, just because the bus or van is not physically involved does not mean that the driver was not involved. Moreover, transportation functions executed above the driver level – like planning, system design, route/schedule design, driver assignment, training, supervision, maintenance and monitoring – lie within the control of “the system” – and far beyond the realm of possible contributory negligence. As a consequence, transit and paratransit agencies and contractors have a difficult time defending themselves where errors and omissions in these functions are identified – much less when they mirror thematically similar driver errors and omissions. The consequences are worse yet when the defendants either don’t discover them or appear to be hiding them. Such findings not only appear as a breakdown in the entire system, but as a “cover-up.” Thus, less-than-diligent accident investigation efforts and over-zealous defense efforts designed to conceal negligence carry risks – and stiff penalties when the risks don’t pay off.
COMMON BUS ACCIDENT SCENARIOS AND ERROR CHAINS
Eight combinations of errors and omissions appear to be present in most transit- or paratransit-related accidents.
Standees and Slips-and-Falls
While even seated or secured passengers can be injured when excessive centrifugal forces are exerted on their bodies, it takes far less force to dislodge or disorient a standee. However, seated bus passengers are rarely injured even in most collisions, since the bus’ mass is usually disproportionately greater than that of the objects with which it collides. Unlike seated passengers, standees don’t require a serious collision to incur injuries. They are vulnerable to excessive acceleration (“pull-outs” or rapid increases in speed), deceleration (e.g., “pull-ins” or rapid decreases in speed) and turning. When these maneuvers create excessive centrifugal forces for legitimate reasons (e.g., the driver is cut off and must stop short) or illegitimate reasons (e.g., the driver miscalculated stopping or following distance), their consequences are often compounded by other errors or omissions which, by themselves, would not likely create problems. For example:
- The driver pulls out before a passenger reaches a seat, strap or stanchion
- The driver fails to recognize the balance problems endemic to passengers carrying babies, bags or other objects (especially involving both hands)
- A driver fails to control passenger behavior
- A driver permits passengers to ride forward of the “yellow line”
- A driver permits passengers to ride in the stepwell
Overloading and Priority Treatment Violations
Every vehicle has a suspension system of some type, the goal of which is to offset the centrifugal forces exerted on the driver, passengers and freight by acceleration, deceleration and turning. In passenger vehicles, the load limits of these systems are expressed as the vehicle’s (or axle’s) gross vehicle weight ratio (GVWR) – effectively the maximum laden weight the vehicle (or axle) can carry before centrifugal forces pose a danger to vehicle occupants. Because most of a vehicle’s weight exists irrespective of its occupants (this is known as unladen weight), vehicles are designed so that their GVWRs are not exceeded when all the seats are occupied and, in the case of transit buses, when a finite number of additional, unseated passengers are included. The key term in this definition is finite. So it should come as no surprise that an overcrowded bus translates into excessive laden weight, compromising the vehicle’s suspension system and exaggerating already-considerable centrifugal forces.
As noted, serious accidents can occur merely when passengers are standing. When too many passengers are standing, the likelihood of their being injured or killed is far greater. And some types of accidents are possible only when the bus is overloaded. In one accident examined by this author, three passengers on an overloaded bus flew through the closed rear door into the street before the vehicle had completed a left turn after pulling out from a near-side stop: One of those passengers was seated on the opposite side of the door. Errors and omissions – particularly in policy-making, planning and system design – which contribute to such occurrences include:
- Policies vis-à-vis maximum loads which ignore vehicle GVWR
- Recovery time in insufficient (vehicles bunch up and the distribution of loads becomes increasingly uneven, and drivers “cut corners” to create or increase recovery time)
- Headways are not adjusted for peak versus off-peak conditions
- Headways do not factor in weather, traffic snarls or wheelchair loading/unloading
- Inadequate stop spacing results in excessive loads on selected route segments
- Training materials do not admonish drivers about overloading
- Additional vehicles are not deployed when needed (e.g., during the “Christmas Season” on routes serving shopping centers)
- Routes are duplicative (creating unnecessary stops, starts and turns)
- Monitoring and enforcement – particularly with respect to schedule adherence and bus spacing – is inadequate or non-existent
- Contractors “embezzle” runs from the system (easy to do when routes run behind constantly and monitoring is rare or non-existent)
- Contract reimbursement formulas exclude deadhead and idle time
- Vehicle specifications fail to match suspension systems with anticipated load characteristics (e.g., spring suspension systems on routes with standees)
- Priority treatment policies – particularly with respect to elderly individuals – are not enforced
- Passengers are permitted to board through the rear door
- Passengers are permitted to ride in the stepwell
- Mechanics fail to repair and maintain suspension system elements (which include tires and wheel bearings)
Stop Selection and Intersection Placement
The safety-related characteristics of stops, in general, bear a considerable relationship to boarding, alighting and crossing accidents. This is particularly true with school-age passengers for whom otherwise safe stops might not be comprehensible. Schoolchildren are particularly vulnerable because they are taught to cross in front of school buses, for which other vehicles are required to stop during loading and unloading. Related errors and omissions which make stop selection so precarious include:
- Drivers fail to stop at the proper side of the intersection
- Drivers fail to properly line up their buses with the stop
- Drivers fail to pull completely to the curb
- Drivers fail to align their buses parallel to the curb
- Drivers fail to “clear” both mirrors before pulling out
- Drivers improvise stops at non-designated stop locations
Particularly given the vulnerability of certain passengers to stops, their selection by drivers (compared to their selection by planners and/or traffic engineers), as a policy matter, is a glaring error:
- In one recent case where drivers were given the authority to not only select stops, but accommodate the requests of all types of passengers (with no distinctions made even for young or developmentally-disabled passengers), an elementary school student was discharged, in the pre-dawn hours, at a virtual obstacle course; as he (properly) crossed the street behind the bus, he was struck by a pickup truck traveling in the opposite direction.
- In another case, a developmentally-disabled passenger with Cerebral Palsy who had been denied complementary paratransit service was discharged at an un-signalized, mid-block stop along a high-speed, four-lane highway; he was struck by an automobile as he neared the opposite curb.
Particularly troublesome is the rash of crossing accidents involving schoolchildren:
- A child dashed off his transit bus, ran in front, and was struck by a vehicle passing the bus.
- Another child dashed off his transit bus, ran in front, and was struck by a vehicle traveling in the opposite direction.
- A child properly crossed to the rear of his transit bus and was struck by a vehicle traveling in the opposite direction.
- A schoolchild walking home identified an unloading transit bus as a safe place to cross the street, stepped into the intersection in front of the bus, and was struck by an automobile passing the bus.
None of these victims was struck by the bus. Yet the transit agency was claimed to be at fault. In several cases it was, and diligent legal and technical efforts exposed enough errors and omissions throughout the management hierarchy to trigger handsome settlements.
Crossing accidents involving schoolchildren present a unique dilemma: While providing instruction to schoolchildren about using transit services may limit an agency’s exposure in transit-related cases, it may increase that exposure in school bus-related cases: Just as a schoolchild may be injured by crossing in front of a transit bus, he or she may be injured by crossing behind a school bus. If the transit agency is involved in that child’s instruction, it may be held liable. To their credit, APTA and a number of its members have begun to recognize the complexity of this issue, and have begun to “reach out” to pupil transportation professionals for guidance and assistance. Given the climate and results of recent litigation, a transit agency may soon be taking severe risks by conducting planning, system design, training and marketing activities without significant input from pupil transportation professionals.
Vehicle Placement and Mirror Usage
The difficulties with, and limitations of, mirror usage have been addressed, in recent years, by a spate of new technologies to improve mirrors (e.g., parabolic crossover mirrors) or supplement their usage (e.g., periscopes, sensing devices and video cameras). But given the size and shape of a bus, and the difficulty of maneuvering it, many problems remain:
- Following a repair, a bus pulled out while the driver’s view of the shelter was obscured by an advertising poster mounted on the shelter wall. A small child startled out of her stroller by the movement and noise of the bus and its engine was crushed by its curbside rear tires.
- A bus which had not pulled parallel to the curb pulled out into its lane, causing a bicyclist passing the bus (whom the driver had not seen) to swerve into an adjacent lane where she was struck by an automobile passing the bus. The bus’ oblique positioning placed the victim outside the sector of visibility required by mirror performance standards.
- After an alcoholic staggered off the bus, his driver failed to “clear” him in his side view mirror. The victim subsequently fell down, slipped beneath the bus, and his arm was crushed by its curbside rear tire.
While such accidents may appear to involve unusual circumstances and considerable coincidence, they also involve negligence in a range of areas supplementing the drivers’ errors and omissions. In the first of these cases, it was foreseeable that advertising placed on the “far” wall of the shelter would shield the driver’s view of passengers in the shelter unless the bus was properly lined up with the stop. In the second case, the bus was considerably behind schedule on a route whose running time problems had been formally identified and, shortly before the accident occurred, targeted for review. In the third case, the driver had a clear view of the victim; he simply didn’t use it.
Equipment Availability and Radio Procedures
Few transit professionals would argue that operable radios and open channels of communication between drivers and dispatchers are essential to system safety and security. Yet such buses not only operate, they operate where the absence of radios is a constant threat to passenger well-being:
- On one dangerous segment of a crime-ridden downtown route, a driver watched transfixed as an argument escalated into a multiple shooting. After the shooting, the driver abandoned his bus to use a pay phone to summon police – two units of which arrived before he even returned to the bus.
Still, the availability of operative radios does not guarantee their usage:
- One driver mesmerized by the incident unfolding outside his bus watched while three passengers who had just alighted pummeled a fourth former passenger to near death. Not only did the driver refuse to open the doors to help the fleeing passenger escape, but never thought to even radio for help. An elderly spectator broke up the melee.
It did not help either operating agency that radio procedures were omitted from their otherwise thorough training programs and documents.
COMMON PARATRANSIT ACCIDENT SCENARIOS AND ERROR CHAINS
Much of the difference between common fixed route and paratransit accident scenarios is explainable by differences in vehicle characteristics. Compared to their massive monocoque bus counterparts, paratransit vehicles are relatively flimsy, and their body-on-chassis construction and spring suspension systems less capable of absorbing and dissipating crash forces. As a result, collisions involving paratransit vehicles often result in passenger injuries despite the absence of standees and the fact that passengers – including wheelchair occupants – are generally seat-belted in place. And the frequency of gasoline fuel systems in smaller vehicles (a characteristic becoming less and less common) makes paratransit passengers vulnerable to fires and explosions.
Part of the difference between transit and paratransit services is also explainable by the fact that the latter is provided on a door-to-door or curb-to-curb basis. As a consequence, passengers obviously do not have to cross streets, access or wait at stops. As a result, they do not experience crossing or other pedestrian-related accidents.
Differences in vehicle mass, construction and passenger access, however, do not completely explain why paratransit accident scenarios are so radically different from those of fixed route services. An examination of common paratransit accident scenarios and error chains provides considerable insight into these differences.
Wheelchair Securement Devices and Seatbelts
As noted, all passengers are supposed to be restrained in vehicles of less than 10,000 lbs. GVWR – a break-point which encompasses most paratransit vehicles. Not only should wheelchairs be securely fastened to the vehicle but, further, passengers should be securely fastened to their chairs. The primary reasons for these requirements are that these smaller vehicles are far more likely to experience rollovers, passengers are far more likely to be ejected, and the “rebounding” passengers are likely to experience in collisions of even moderate force is likely to be considerable.
While few paratransit accident victims are found to have not been properly seat-belted, the same is clearly not the case for wheelchair passengers. Not only are wheelchairs not properly secured, but their passengers are often not properly seat-belted into their chairs. It is a curious fact that accidents resulting from wheelchairs being improperly secured to fixed route buses are rare – despite their constant stops and starts. Some of this may be explainable by superior securement systems. At the same time, fixed route drivers transport only handfuls of wheelchair occupants, and receive only a fraction of the training for it that paratransit drivers do.
Wheelchair occupants are, obviously, subject to the same centrifugal forces as other passengers, whether seated or standing. For this reason, completely unsecured wheelchairs are unlikely to shift at all under normal driving conditions. Similarly, most chairs can be soundly locked into place if only three of the four wheel positions are properly secured, and the fourth omitted altogether. This means that when wheelchairs fly about within the passenger compartment and/or their occupants fly out of their chairs – in the absence of a collision – the negligence involved is generally considerable. Confronted with an injury or fatality from improper wheelchair securement, the eyes of personal injury attorneys become the size of saucers. The range and diversity of errors and omissions is considerable:
- Drivers fail to unlatch and store securement belts after wheelchair occupants have been unloaded. Ambulatory passengers trip over the belts. Wheelchairs and ambulatory passengers mash the buckles and floor mounts. Drivers often can’t tell which of those among a pile of belts is even attached to the floor – much less in the optimum position to adjust and tighten the chair. Belts stretch and tear from their intermingling with other belts. And because part of their illusory tightness stems from their overlapping other belts, the centrifugal forces of normal, much less abnormal, driving can create excessive slack.
- Drivers fail to adjust the straps, and the slack provides the leeway for chairs to shift. It sometimes provides the momentum for straps to break or break free from their buckles or clamps altogether.
- Drivers fail to tug on the belts to make sure they are fastened at all, much less fastened securely.
- Drivers secure the rear wheel posts first, out of sequence – thus losing the ability to torque the chair into place.
- Drivers fail to secure wheelchair occupants into their chairs, secure them improperly, or use the occupant’s often faulty equipment rather than those on the vehicle.
- Drivers secure the wheels rather than wheelchair posts (or frame members).
These errors and omissions are sometimes compounded by preposterous defects in the design of the wheelchair or seatbelts themselves.
- In one recent case, a wheelchair was secured by a single bolt, permitting the chair to pivot around the bolt’s axis; the flimsy chair – replete with the standard disclaimer warning its user that it was “not intended for transportation purposes” – was outfitted with a seatbelt fastened by a plastic buckle, which the driver used instead of the posey belt properly stored aboard the vehicle. When the van stopped short, the passenger flew into the dashboard, sustaining a fatal injury.
- In another case where the decedent and his chair flew from their moorings, the knob affixing a side-facing wheelchair to a horizontal cross member was not tightened; many of the twisted and torn straps were not even affixed to the floor because their clamps either did not fit into the inserts or the inserts had been crushed. When the van inadvertently stopped short, the chair slid forward, spun around and collapsed – propelling its occupant into the engine housing.
- In yet another case, the chair was tied so loosely that the victim sustained bruises, her urine tube burst (dowsing her legs with uric acid), and her feeding devise malfunctioned, depriving her of several intravenous medications.
Loading, Unloading and Passenger Assistance
Because of the nature of their passengers, all paratransit systems provide extensive passenger assistance in loading and unloading. On many systems, drivers physically escort every passenger to and from his or her doorstep (and sometimes beyond). What is often not possible is continuous, uninterrupted passenger assistance. Sometimes this difficulty leads to genuine accidents:
- A driver who had just assisted an elderly diabetic woman off the vehicle turned around to close the door before escorting her to her home; during the split second required for this maneuver, the passenger fell down, injuring her leg, which had to be amputated.
This case settled out for a pittance – largely because the driver would have needed three hands to prevent it. Yet in a superficially similar case (on the same paratransit system):
- A driver escorting an elderly passenger let go of her while escorting her to the doorway just feet away so that he could fetch her cane.
Particularly with wheelchair loading and unloading – genuine accidents often lead to frivolous lawsuits:
- In one case, an electric wheelchair occupant claimed his chair rolled off the lift platform, which broke his neck. (The one thing electric wheelchairs are designed not to do is roll.)
- In another case, an amputee whose wheelchair had been modified by removing both foot-plates spun himself off the lift by pushing off with his one leg.
In examining such cases, it is important to note that the centrifugal forces exerted on the wheelchair by the lift are negligible, since the device does not move laterally and, obviously, the vehicle is stationary. More typical are cases where drivers forget to store the lift after unloading a passenger – and the lift strikes a pedestrian as the vehicle pulls out.
ADA Compliance and Micromanagement
One of the one important principles of paratransit operations is that improvements in performance (i.e., efficiency) are generally accompanied by improvements in reliability and safety. This is true simply because the more methodical, systematic and predictable trip patterns are, the easier they are to change, the fewer changes are needed (from week to week or day to day), the less complex are schedules, the narrower are the range of problems to address, and the easier service is to monitor. Despite the common knowledge of these relationships to seasoned paratransit professionals, the process of implementing ADA requirements has transformed many otherwise stable, cost-effective, predictable, usable and safe paratransit systems into inefficient pressure-cookers of chaos, inefficiency, widespread dissatisfaction, law suits and, more and more, Class Action suits. The number of accidents, and the steep damage awards or settlements which so often ensue, have caused some major underwriters to “stop writing paratransit policies.”
The micromanagement reflected in more and more paratransit operations is largely the result of a transportation sector where virtually all the service is provided under contract. Because of the ADA’s “stand in the shoes” doctrine, a contractor must perform to the same standards as its lead agencies – even though its drivers’ salaries are dramatically less than those of its lead agency counterparts, and the contractor’s management ranks are as thin (from the rigors of unenlightened competitive contracting) as are its lead agency’s ranks are bloated. This structure inexorably leads to obsessive micromanagement. And because lead agencies obviously don’t – and can’t – possess the hands-on operating experience of their contractors, many systems are designed and directed to meet ADA requirements – rather than designed and directed to simply provide safe, reliable and needed services, of which meeting ADA requirements would be a normal and natural bi-product.
Many lead agencies insulate themselves from liability by including patently unconscionable hold harmless agreements in their operating agreements. Apart from these agreements not “holding up in court,” these efforts to insulate the lead agency from liability have little impact on safety. Worse still, the environment of micromanagement often makes it impossible to operate a rational, much less safe, paratransit system. As an example, the obsession with “equivalent” service translates into a service structure dominated by immediate-response trips – a structure which not only makes monitoring difficult, but which practically defies it.
Ineffective Monitoring, Enforcement, Rape and Mayhem.
The single most fundamental omission running through most transit accidents – and which permeates almost all paratransit accidents – is the near-complete absence of the most rudimentary and effective form of monitoring: Log review. Some systems employ virtual armies of road supervisors. Huge “phone banks” are dedicated to the solicitation and resolution of complaints. And the pre-occupation with “liquidated damages” takes on the form of an administrative pogrom. Unfortunately, these obsessions pre-occupy operating personnel who might otherwise pay attention to the serious concerns in operations. Invariably, the element which suffers the most – since it is not essential to the physical provision of services – is monitoring. Ironically, monitoring is the only operating function which provides insight into the safety, reliability, quality and efficiency of all other functions.
Understandably, complementary paratransit’s micro-managed and mismanaged operating environment often translates into accidents peculiar to this form of transportation. Paramount among these are rape and assault, “joy rides,” and incidents where would-be passengers are exposed to dangers apart from the paratransit system because they are unreasonably delayed or stranded:
- A developmentally-disabled woman was discharged near an unlit ramp to a public library; when her driver abandoned her to find the building entrance (instead of having his dispatcher telephone for this information), she improvised her way down the ramp and tipped over her chair, breaking her hip.
- A passenger was taken on a six-hour jaunt, during which time her driver picked her up 90 minutes behind schedule, spent more than an hourly ineffectively trying to secure her wheelchair, and disappeared altogether – for 90 minutes – from radio contact with the dispatcher.
- One agency’s drivers’ logs were deliberately ignored by both the lead and operating agency because the operating agency was padding the hours to effectively embezzle unneeded reimbursement – a consequence of its having low-balled the bid (a common practice induced by poorly-thought-out RFPs). After discovering he could restructure his schedule with complete impunity, one driver began isolating the developmentally disabled passenger of his choice and molesting her regularly.
- After his vehicle jumped a freeway median strip, collided with five cars, and beheaded one of their drivers, the urine sample of the paratransit driver was found to contain alcohol, marijuana and cocaine. Several days earlier, management had ignored the dispatcher’s pleas to fire him for insubordination – in accordance with the company’s own clearly-defined disciplinary criteria.
Within the largely-unmonitored confines of paratransit operations:
- One driver regularly raped a mentally-retarded woman on the floor of his van in a fast foot parking lot.
- Another driver whose agenda was simplified immensely by the authority to fade in and out of immediate-response taxicab service as he pleased, raped a developmentally-disabled passenger at his apartment, after which he returned her to the service area and transported her on time to the clinic where she was being treated for depression.
- Another paratransit driver short of his own clients, seduced a middle school student into his van during gaps in the schedule which he cleverly created in his unmonitored schedule; after the victim fought off the driver’s attempt to sodomize him, the driver pummeled him to the brink of death and dropped him off in the gutter. (He lived.)
- In one bizarre case, a 200-lb. bully molested the only other passenger on board (an 80-lb. weakling) – and the driver claimed he never noticed. While the bully had a history of similar offenses, they were never communicated to the contract operator.
In most of these cases, the drivers relied on computer-generated schedules. Enamored with the theoretical reliability of the schedules, and relying on useless or superficial measures like “road supervisors” to monitor driver performance, no one in either the lead or operating agencies ever thought to examine whether or not the drivers actually followed the schedules, much less how or how closely.
INSURANCE PRACTICES AND APPROACHES
One of the obstacles to addressing the flashpoints identified in this analysis is the fundamental structure and approach of the insurance industry – regardless of whether or not various “tiers” of risk are underwritten by outside agencies or covered by in-house self-insurance policies. Typically, premiums are established by reviewing patterns and trends. Presumably, these trends reflect unsafe practices. And with information about thousands of cases at their disposal, the most astute insurance industry professionals can identify many of the causes of these accidents. Unfortunately, the remedy – at least for outside agencies – is to penalize the insurees with higher premiums. The assumption is, of course, that these penalties will motivate the agencies to redouble their safety efforts. Unfortunately, the specifics underlying the accidents in the first place are often lost in the translation.
The already-blurry linkage between accident causation and insurance premiums is further obscured by the fact that many accidents are “indirect,” and only translate into lawsuits and damage awards only when the victims’ attorneys and expert witnesses are insightful, resourceful and/or lucky. Further, many accidents of certain types (e.g., slips-and-falls) generally result in no injuries, and thus, remain largely unrecorded. As a result, their underlying causes are not addressed. And, of course, many transit agencies’ attorneys prevail. So with few penalties for poor performance, the need for improvement is not identified, and improvements are not made. The bubble bursts, of course, when a serious accident “catches up with an agency” and “dents its pocketbook.” Or similarly, a contractor’s premiums are “adjusted” upward, or coverage is cancelled altogether.
PUNATIVE DAMAGES AND CIVIL RIGHTS ACTIONS
The big payoffs in tort cases occur when the plaintiff can establish a pattern of negligence. These patterns trigger punitive damages. They can also form the basis for civil rights actions. Both eventualities escalate damage awards exponentially. In the World of personal injury attorneys, punitive damages and class action suits are the “home runs.”
Punitive damages and civil rights cases also threaten to change the transportation landscape: Reacting to the web of errors and omissions in a recent school bus fatality, the attorney filed the claim in Federal court. In other words, the suit claims that the pattern of errors and omissions was so pervasive that it violated the victim’s civil rights. Despite the filing of a Motion to Dismiss – which would simply “kick” the case to state court, where the same pattern of negligence would be used to seek punitive damages – this case remains in Federal court as this article is being written.
The information needed to unmask patterns of evidence necessarily requires the establishment of a chain of errors and omissions – although there need not be negligence in every link. Regardless, the finding of a pattern means that errors and omissions related to the injury or demise must have occurred in policy-making, planning, system design and/or management. Much of the evidence needed to establish this is unknown by, or unavailable to, attorneys; some of it is not. More likely, attorneys don’t understand how to link the evidence to the accident. Such is not the case with expert witnesses well-versed in transit and paratransit planning and operations. Useful evidence can include:
- Policies and procedures
- Planning studies
- Inter-staff correspondence
- Bulletin books
- On-and-off profiles
- On-board profiles
- Schedules and time points
- Training documents
- Drivers’ Logs
- Dispatch logs
- Labor agreements
- Work rules
- Operating contracts
- Personnel files
- Marketing literature
- Ridership guidelines
- Driver assignments
- Service development criteria
- Purchase orders
- Vehicle specifications
- Product literature
- Seating configuration diagrams
- Maintenance records
- Parts inventories
- Dealership and licensing agreements
- Grant applications and boilerplates
- Compliance agreements and waivers
- Consent decrees
- Interagency agreements
- Cost allocation models
- Traffic flow counts
- Traffic signal green time allocations
- Traffic volume counts
- Eligibility criteria
- Certification requirements
- Fleet inventories
- Pre-trip inspection check-outs
- Lift-cycle check-outs
- Scheduling algorithms
- Disciplinary policies and procedures
- Performance and safety audits
- Ridership summaries
The “golden rule” in dealing with negligence is that effort is generally rewarded. In simple terms, the more you look the more you’ll find. Because consultants and expert witnesses are paid by the hour rather than “on contingency,” it is in their best interests to convince attorneys to “let them dig.” Defendants’ attorneys – who rarely seem to grasp the implications of this process – generally engage experts only in response to the designation of experts by the plaintiff’s attorneys. In this reactive mode, opportunities to get the case dismissed can pass by unnoticed.
The identification of error and omission flashpoints in this analysis is designed to provide guidance to transit and paratransit decision-makers in their expenditure of capital and operating resources earmarked to reduce the frequency and severity of accidents. In many cases, far less money than is currently being spent would address a far broader spectrum of problems – were it targeted to the flashpoints identified.
Excising the thematic elements which lead to accidents is not exactly a new concept. By definition, it comprises the basis of risk management activities. Unfortunately, the characteristics of common transit and paratransit accidents document the fact that the risk management measures currently undertaken are either largely ineffective or targeted toward the wrong system elements and functions.
While risk management efforts are presumably intended to be interdisciplinary, the common occurrence of so many chains of errors and omissions in related areas of policy-making, planning, system design, management and operations also documents the fact that they are not interdisciplinary enough. This phenomenon may be the result of the career progression ladder within the transit and paratransit industries, where those assigned to risk management are often mid- or junior-level staff who don’t have experience in all or most of the disciplines which combine to create and operate the system. Regardless, such individuals are “fodder” for the plaintiffs’ attorneys clever or lucky enough to depose or examine them. Confronted with layer upon layer of negligence, even the most knowledgeable and seasoned risk manager is at a disadvantage in such proceedings.
In contrast, the key to the improvement of risk management efforts is the inclusion of procedures to examine interrelated policy-making, planning, system design, management and operating functions. Recognizing error and omission chains, and the interrelationships of links in these chains, is fundamental to the effective exercise of such efforts.
The considerable latitude of contemporary litigation also places public transportation agencies at risk even when their vehicles and personnel had absolutely nothing to do with an accident:
- Several minutes after a school bus had dropped off the decedent, a neighborhood bully chased him into the street where he was struck by an automobile. Under the state’s policy for the determination of “comparative negligence,” the school district was assessed 15 percent of the $6M damage suit – costing it $900,000.
- After a schoolchild dashed off and ran in front of a transit bus, the transit agency settled for $1.2M. After spending tens of thousands of dollars defending itself, the school district settled for a paltry $2,500.
Both cases involved claims of negligent bus stop design. Obviously the separation of the public agency from the accident – in either time or space – had little bearing on the filing of the suit or the assessment of damages. Nor did it have a bearing on the damages. In this environment, agencies are penalized not only when they are not negligent, but sometimes when they are not even involved.
In some cases, a transit agency or contractor may not have the perspective to view its operations objectively. Ironically, this is often the case where senior management personnel have considerable expertise and, justifiably, think highly of their system:
- In one case where a schoolchild playing hooky ran in front off the transit bus and was struck by a passing motorist, the stop selection and design were impeccable. Yet in discussions with their attorney and her expert witness, planning and traffic engineering personnel had such extensive and sophisticated expertise in this area that they were unable to articulate any of the numerous and specific elements of the stop design process.
Like cinemascope, it is sometimes difficult to see the trees through the bark with even perfect vision. Transit agencies and their contractors would do well to contract out for independent safety audits. To be effective, such audits must, at minimum, examine the system characteristics related to common accident scenarios and error chains. Because of human nature, the choices for conducting such analyses – choices which would naturally threaten management personnel, and analyses which could easily embarrass them – must be exercised at, and the efforts directed by, the highest levels of system management.
ACKNOWLEDGEMENTS AND DISCLAIMERS
The views expressed in this paper are exclusively those of the author, and do not necessarily reflect those of the American Public Transportation Association or any of its other members.