As the person in a law suit constantly required to provide the “technical perspective,” a number of things have always troubled me – irrespective of which side of the case I’m on. One pet peeve is the common inability of attorneys to let the case expand until they capture the complete array of evidence before forming conclusions and strategies to sell them. Another is the tendency of our legal system to deny most Motions to Dismiss because the liability cannot be determined without an examination of a string of facts unlikely to matter – a reasonable and prudent approach were it not so often abused. But one stinging dislike I have always had – even when working on behalf of the plaintiffs – is the practice of blaming defendants for circumstances over which they had no control. I just finished helping defend a non-emergency medical transportation provider in such a case. But it could have been a motorcoach company, a school bus provider, a transit agency or anything else. So its implications for motorcoach service are troubling.

Slip Sliding Away

As any seasoned transportation professional knows, a grossly disproportionate number of incidents and injuries are experienced by the weakest passengers, be it because of age, illness, disability, inflexibility, lack of strength, diminished vision or hearing, fatigue or even height and weight.

Three Springs ago, a non-emergency medical technician and her partner picked up a wheelchair user at the nursing home that selected and provided her wheelchair. Noting that the chair contained neither footplates nor lap belts, the driver (an Emergency Medical Technician) questioned these deficiencies immediately, but was told that these attachments were not available. Knowing that many wheelchairs are configured specifically for the needs of their occupants, often by physicians and orthopedic surgeons, the driver wheeled the chair out to the vehicle, fortunately without incident, as its 89-year-old occupant held her legs up in the air. She was similarly unloaded and wheeled into her doctor’s office without incident.

An hour or so later, a different team of driver and attendant picked the patient up. This time, the driver not only questioned the absence of footplates but, recognizing the wheelchair as a rather generic manual chair, offered to substitute the generic chair resting in his van because it had both footplates. Because the patient was practically sound asleep, her 60-something mother declined on her behalf – an individual who we later discovered had held a Power-of-Attorney over her mother’s medical decisions for more than a decade. The attendant, a mere trainee, noticed that the patient could hardly keep her eyes open, was slumped down in her seat, and her buttocks were not positioned at the seat cushion’s apex with the seatback.

In the pecking order within the medical and transportation communities, drivers fall layers below nurses, doctors, and orthopedic surgeons – much less members of a passenger’s immediate family with the Power-of-Attorney over her decisions. That the concern for this passenger’s safety varied in reverse proportion to the level of authority of each member within this hierarchy was an ironic but irrelevant footnote. Recognizing he could not override the decisions of a doctor or family member, the driver asked the wheelchair occupant to try to keep her feet up, and leaving the facility’s lobby, began the 20- or 30- foot journey from the doorway to his vehicle. Amidst a puff of wind, a loose coat and a few other occurrences that simply cluttered up the facts, the patient’s ability to sustain her leg-raisers lapsed, one foot struck the ground, and she and the chair tumbled over, injuring her foot. Not surprisingly, her attorney blamed a long list of completely unrelated injuries on this incident, including many that were fully developed years before the incident occurred.

With genuine injuries relatively minor, despite the plaintiff’s age and disabilities, the lawsuit lay in that unjust land where it costs almost as much to defend the suit as it does to pay the damages demanded by the plaintiff’s counsel. To the credit of my counsel and her client’s underwriters, they decided to defend the suit, even though they could have settled it for far less money.

Questions and Quandaries

In so many lawsuits, a central question is: “What could the defendant have done differently that would have mitigated the risks and avoided the incident?” In many cases, the answers can be long, embarrassing, indefensible and sometimes shameful. But that was not the case in this one. Recognizing the injustice of the situation, and the speciousness of any argument in favor of the plaintiff’s case, her counsel argued some twisted form of the doctrine of “control:” When the incident occurred, the driver had control of the plaintiff’s wheelchair. Therefore, when the plaintiff slid out of it, the driver must have lost control of her wheelchair. Such a position, of course, ignores the errors and omissions made by several layers of individuals and institutions who saddled the defendant’s driver with a heavily risk-laden task, and burdened him with a difficult if not unrealistic level of responsibility.

Bad Situations and Limited Options

A major inequity of the U.S. legal system is that, unlike that of any other nation on the planet, the loser of a civil suit is not required to pay the legal and related fees of the winner. As a consequence, all manner of frivolous lawsuits arise here:

• Recently, I helped defend a school district in a case where a two-year-old baby crawled beneath a school bus to reach her mother on the other side, while the police force, the decedent’s counsel and an unnamed defense shill invented evidence that the child had been in front of the bus, where she should have been spotted by the driver – basing their case on a statement the driver never made, and a single smear on the bumper – even while their own DNA analysis of the bus’ undercarriage found not a shred of tissue, hair or fiber anywhere but on the curb-side rear tire, fender well and mud flap. Unfortunately, the decedent was the daughter of the Deputy County Prosecutor, and no stones were left unturned to fabricate a preposterous case where law enforcement officers lied and their expert witnesses swore to them.
• In another recent lawsuit where I helped defend a transit agency, a squat, grossly-overweight passenger seated directly opposite the rear door chose to arise while the bus was pulling into the stop, and presumably from the inertial and centrifugal forces that would have barely affected her had she remained seated for two or three more seconds (i.e., until the bus stopped), she spilled into the aisle, tumbled down the stepwell, and blasted open the rear doors like the 250-lb. bowling ball she effectively became.

I wish I could say the defendants were victorious in each of these law suits. But that was not always the case, just as the whims of our legal system often deny justice and compensation to victims of genuine negligence whose lives are radically transformed forever by an incident that need not and should not have occurred, and which would not have but for a considerable range and diversity of errors and omissions. As an individual defendant – or more typically its insurance carrier – the tendency is to settle the case irrespective of the justice involved, and often for sums disproportionate to the relative merits of the case. But as an industry, settling out cases where one’s agency or employees are blamed for errors and omissions that lay completely beyond their control is a debilitating trend that encourages lawsuits in situations that warrant mere condolences or apologies, and sets fire to harbingers of greed unleashed by the contingent fee arrangement and other dynamics of our peculiar legal system and its tilted and wobbly game board.

Lots of Questions, Few Answers

Every transportation industry defendant cannot afford to fight every battle, particularly where key decisions are made by underwriters with significantly different agendas. But we would be far stronger as an industry if we routinely fought those lawsuits where we and our personnel were clearly not at fault, and where the forces leading to an incident lay clearly beyond out control.

Two hundred lawsuits ago, I was fully convinced that effort was the principal variable in winning a lawsuit, trumping not only an attorney’s skill and his or her expert’s knowledge, but even the facts. Two hundred lawsuits later, I am even more convinced this is the case. Whether our industry can devise a mechanism, formulate a goal, or even take a position to defend ourselves when unjustly accused remains a question rarely asked. Unfortunately, it is a big question begging for an answer. Do we have one? No we do not. Should we? You tell me.