Some folks like to talk about how smart their kids are. Others love to talk about their brainy pets. My old cat, Beep, displayed a special stunt whenever guests came to dinner: He would pounce onto the dining room table and taste the guests’ food as though it were not only acceptable, but routine. Animals can be terrific actors. I made sure both my guests and the furry thespian knew this was not the script: Beep missed his next meal of Dingles & Slibs, and spent the night outdoors. Meow, meow, meow, meow.

Eventually, of course, I gave in. I was not about to starve or freeze my swell cat to death. Unfortunately, the consequences are far worse for a defendant whose management failed to reprimand – much less discipline or terminate – a driver for a cluster of errors and omissions the operator is now being sued for. Keeping the Big Offender in the driver’s seat after he killed or maimed a passenger fools no one.

Pretense and Indifference

While it has never made sense to me, and no defendant I assisted ever explained it to me, I always get the feeling that defendants refuse to discipline, or even reprimand, their drivers to send a message, in the eventual lawsuit, that the driver did nothing wrong. Here is a short list of some things that various defendants have effectively condoned by continuing to employ the driver involved:

• Picking up a wheelchair occupant 90 minutes late, a paratransit driver fumbled for an hour before abandoning efforts to secure her chair, got completely lost, drove in the wrong direction up a freeway ramp (striking the guardrail), refused to stop to let the passenger out, disappeared from radio contact for 90 minutes, and finally reached the destination more than six hours after the pickup – during which time the badly-bruised passenger’s urine tube burst, its contents badly scalding her legs. Dependent on public transportation, the victim’s agoraphobia had almost subsided when, on her first attempt to re-use the service a year later, guess who came by to pick her up?
• Failing to secure the seatbelt of a mentally retarded paraplegic with no hand strength, a paratransit driver tailgating in stop-and-go freeway traffic stopped short when the vehicle in front of him came to a halt. The passenger flew head-first from the rear seat into the dashboard. The driver – whom a routine DMV check revealed had received three moving violations during the two years prior to the incident – claimed that, the instant he began braking, the passenger leaned forward to pickup a magazine he had just dropped onto the floor. The driver is still employed, and still driving.
• A motorcoach driver failed to monitor the return to his seat of a passenger who had just finished chatting alongside him. Tailgating one bus-length behind in stop-and-go freeway traffic, the driver slammed on his brakes and swerved to the left, propelling the passenger into the windshield and down the stepwell. The driver claimed that, seconds before, a motorist had skidded across three lanes in front of him, bounced off the guardrail, spun around, and came to a dead stop directly in front of his coach. The coach not only managed to avoid striking this phantom, but conveniently disappeared.
• On her tenth accident on record – most of which involved sideswiping parked cars and severing side-view mirrors – a transit driver entering a bus depot drove head-on into a pole, sending one standee into the windshield. When asked in his deposition what it took to get a driver fired, her supervisor began laughing. (In typical court reporting format, the transcript read, “Ha, ha, ha.”)

Containing the Negligence

Some defendants go to completely opposite extremes, pinning the blame for accidents caused by obscene management stupidity on driver error. On a pro bono basis, I recently helped a transit driver defend himself in a disciplinary hearing involving an accident where his near-miraculous alertness and reaction time saved a pedestrian’s life. While turning left at an intersection, the driver heard a thud against the sidewall behind him, glanced at his driver’s-side, exterior, rear-view mirror, noticed a pedestrian falling down – and managed to bring his bus to a complete stop before the rear tires reached her. As it turned out, the transit agency had mounted an automatic passenger-counting device in the left-hand corner of the windshield. The transit agency instructed the driver to admit driver fault and accept a 10-day suspension. In the disciplinary hearing he instead demanded, he produced photographs showing his view through the lower-left-hand-quadrant of the windshield effectively obscured by the Clever Device (the actual brand name whose manufacturer was startled to learn where the defendant’s management had mounted it). With the impunity typical of in-house kangaroo courts, the hearing officer ruled against the driver. For his defiance, he was suspended for 20 days.

The ostensible goal of such tactics is to leapfrog management’s culpability in the inevitable lawsuit and/or insulate the operating agency from possible punitive damage claims by “containing the negligence” at the driver level, turning the case instead into a simple matter of respondeat superior (i.e., the employer is responsible as a technical matter since the incident occurred in the scope of the driver’s employment). Apart from the serious morale problems such strategies may unleash, they can send unsettling ripples through the work force: I recently helped defend a transit agency in a frivolous lawsuit where, without braking, a 79-year-old motorcyclist drove directly into the rear of a stopped bus with such force that it ruptured the bus’ cooling system and knocked it forward twenty feet. While not remotely his fault, and with his employer and its legal team fully in support, the driver felt so bad about the incident that he committed suicide.

One can only wonder what drivers feel after such incidents when their employers then railroad them. One can only imagine what they will admit if and when a future incident is their fault – or is not.

Preventability and Causation

One legal enigma behind many miscalculations in legal strategy is the blurry relationship between preventability and causation. Particularly in transit agencies and large operating companies, serious accidents (and often serious non-collision incidents) are followed by disciplinary hearings, panels of which often include fellow-drivers. While some agencies and companies try to hide the findings of such hearings (the transit agency that railroaded its driver in the example above actually considers these hearings confidential and not subject to the rules of “discovery”), such findings are generally admissible as evidence, and plaintiff’s counsel often solicits them. If the incident was deemed “preventable,” plaintiff’s counsel then argues that the finding constitutes de facto evidence that it was the defendant’s fault. Depending on the specific facts, this is not always the case – particularly where there are multiple causes, or where negligence on the part of the plaintiff and/or a third party (e.g., a motorist running over a passenger crossing to or from the bus stop) is partly or largely to blame. But the blur that this oversimplification creates triggers considerable exaggeration, abuse and bad faith.

Inference and Admissibility

Technically speaking, evidence that reveals acts or omissions a defendant made subsequent to an incident (compared to things done immediately or soon afterwards) is not usually admissible in court. So, technically speaking, the plaintiff’s attorney cannot ask management officials questions like, “You mean, after all this, the driver is still working for you?!”

Not speaking technically, of course, plaintiff’s counsel have the right to ask a driver about his current employment. When the driver responds by citing the defendant, most jurors can connect the dots. So while no basis for a finding of negligent disregard may exist for the incident itself, juries are perfectly free to invent one: While not common knowledge, juries are actually free to disregard a judge’s instructions altogether, a precedent set almost four hundred years ago in British common law (Penn v. Mead) – a body of law on which the U.S. legal system is founded.

Savvy and Street Smarts

One disagreement I have often had with attorneys involves their commonly low opinion of juries: As the joke goes, the definition of a juror is someone too stupid to get out of jury duty. As a U.S. citizen proud of many aspects of our justice system, I deeply resent such attitudes. I also think they are foolish and naïve. Many jurors may not understand the intricacies of proximate cause and intervening acts. But they know a ruse when they see one. And serving on a jury is often one’s most honest, responsible, significant and lucid moment. After the first dozen driver errors are uncovered, jurors’ sympathies tends to wane. After evidence reveals that many of these errors were mirrored by similar mistakes at the management and policy-making levels, these sympathies tend to fade. When they learn that the defendant did not care – and demonstrated his indifference by continuing to employ the offender – sympathy can become a distant memory.

Cows and Magic Beans

Some defendants also learn the hard way that all accident victims are not out to fleece them, even if the victims’ attorneys have a sizeable incentive (the contingent fee) to do so. Instead of sending a message through a monetary spanking, many plaintiffs are actually willing to settle for moderate damage awards if the defendants change their policies and procedures, and “clean up their act.” In one recent schoolbus crossing fatality, the decedent’s mother agreed to waive the damages altogether in exchange for the State’s agreement to retrofit every single bus in the State with a safety device already mandated by 30 others. In another case, the plaintiff settled for a modest sum in exchange for a handful of policy changes that bore little or no cost. Of course, these settlements followed both an admission of negligence and stern measures holding both the driver and management accountable.

These examples illustrate that, at least in some cases, integrity actually pays off as a defense strategy. But plaintiffs are far less willing to accept a handful of magic beans as compensation if the defendant still employs the driver whose negligence vegetized their child or grandmother, much less did not insert so much as a written criticism into the driver’s personnel file. Far more likely, such defendants will have to fork over the cow.