Sometimes it’s hard to believe what transportation providers can get away with. And for so long. But eventually it catches up with them. This article describes what happens when it does. It is also a foreboding of things to come, particularly in the transit and paratransit sectors. To its credit, these same problems and symptoms are far less frequent in the motorcoach sector, where it is my hope we can learn from the woes and penalties imposed upon our transit and paratransit cousins.

Running and Cycle Time

As discussed in a 2005 NBT article of this very name (November 2005), the arrival/departure times depicted on a transit route’s schedule (known as “cycle” time) are often fantasies – just as modern airline departure times are typically “padded” by roughly an hour to accommodate their regularly-late departures while still arriving on time – a delusion that appears to placate most passengers who fail to realize that this practice wastes an hour of their time by forcing them to arrive at the airport an hour earlier than would be necessary were air traffic control and airlines marginally considerate of their time. For similar but not identical reasons, transit schedules are almost always too tight, while this deficiency goes unnoticed by most passengers in a hurry to get to their destinations. But it does not have the same effect on accident and incident victims if and when they and their attorneys learn about it from people like me.

Insufficient “running time” (i.e., the time it takes the bus to get from one end of its route to the other) has a deep historical basis. Forty-five years ago, at the height of union strength following the re-introduction of transit services that were now subsidized largely by then-UMTA funds (the predecessor or the Federal Transit Administration), drivers’ salaries were relatively high, and routes were highly “featherbedded.” The taxpayer’s “revolt” of the mid-Seventies combined with the election of former President Reagan began to quickly and severely reverse these trends, and along with the increasing privatization of transit services that began in the Eighties (and was perpetuated by the almost complete privatization of complementary paratransit services following the promulgation of the Americans with Disabilities Act in the early Nineties), this padding not only eroded, but drivers now found many of their routes to contain little or no running time whatsoever – often in perfect weather, with light loads and no traffic.

Uniqueness and Foolish Remedies

Unlike their counterparts in motorcoach, paratransit, non-emergency medical, school bus and special education service, transit drivers are unique in that they never know when they are about to come upon a wheelchair user – whose boarding, securement, detachment and alighting in even a garden-variety manual wheelchair is likely to consume a good 10 minutes of running time. This means that whatever sliver of “recovery” or layover time that might have existed would now be obliterated, and the driver might be forced to run behind schedule for the rest of his or her entire shift since, with recovery time already short, and other delays, there would be insufficient time to “catch up.” In anticipation of this scenario, drivers tend to steal seconds and nanoseconds through a number of tricks, including:

• Failing to allow passengers to reach a point of seating or securement before pulling away from the stop
• Failing to secure or properly secure a wheelchair
• Failing to secure a wheelchair user’s lap and/or shoulder belt
• Failing to pull the bus to the curb (since merging safely back into traffic can take time)
• Failing to kneel the bus (particularly dangerous when it has not been pulled to the curb)
• Stopping on the wrong side of the intersection (on the near side when “caught” in the light, and stopping on the far side when “making it”)

As a veteran of more than 400 lawsuits, I can say with absolute certainty that roughly half of all accidents and incidents are mere symptoms of insufficient running and recovery time. This relationship is easy enough for the victim’s (or plaintiff’s) expert to prove: All he or she must do is simply ride the route on a dry day during the off-peak period when the bus experiences no significant traffic – only to find that little or no recovery time exists. This means that with the slightest drizzle, spate of traffic or a single detour, what little recovery time that may exist will evaporate completely – without the transportation of a single wheelchair user. As a matter of damage awards, jurors are more forgiving of driver errors than they generally are of errors made by someone in upper management, such as a scheduler – especially when aspects of a route like its running and recovery time should be well known to, and approved by, the General Manager. Worse still, what initially appeared as simple driver error may now be revealed to be deliberate – wanton and willful in legal parlance – and in some cases where the routes are extraordinarily tight, malicious. In many states, these characterizations can translate into punitive damages. Worse still, the plaintiff’s complaint may include a request for “injunctive relief” – the demand that additional vehicles be added to either the route-in-question or the entire system – so that drivers enjoy enough recovery time to load, secure, detach and alight a wheelchair user. Keep in mind that because these safety violations are often made when no wheelchair users are even on board (but instead, safety is compromised simply in anticipation of their boarding), a claim for injunctive relief is often considered reasonable by the judge, and the extraordinary costs of complying with it (if awarded) compared to the direct damages of the lawsuit shown to be related to insufficient running time may be exponentially more costly than the direct damages themselves.

This dynamic can drive the damages up tenfold or twenty-fold. When it does not, it may instead increase the pressure for a settlement far in excess of what the actual damages are worth.

The Beginning of Change

Just as featherbedding eroded with the beginning of conservative extremism (30 years ago, a CEO of a major company earned perhaps 15 times that of the average worker; today, he or she earns several hundred times as much), recovery time quickly shrunk to virtually nothing – making service dangerous with each specific effort to “preserve” it (as noted) and, in general, more dangerous by virtue of the increased stress and fatigue experienced by drivers forced to operate under such conditions. Fortunately, even though the process involves a lot of kicking and screaming, the tide is beginning to turn once again in favor of safety and sanity in the operating environment. The most salient example of this occurred last year in a series of eight lawsuits in which I was involved where one state’s drivers’ unions filed against eight contractors for cheating their drivers out of state-required meal breaks for years (a 30-minute meal break was required for every five hours of driving – whereas most drivers received none), and similarly, depriving them of most of the 10-minute rest periods that same state required for each 3.5 hours of driving time. \C2 In truth, fixed route contractors are generally granted the “dogs” of a transit agency’s routes – those routes with the least running time, routes that typically appear on the “extra board,” and which the public sector agencies’ unions are not obsessively reluctant to “contract out.”

This movement has just begun to spread, and has not yet become a prominent dynamic in the union relationship with public or “lead” agencies. But its time is coming. The remedy, of course, is to either re-configure the routes (an elaborate and costly process often requiring public hearings and the political fall-out they inevitably generate), slow them down (alienating frantic commuters and others trying to get to their destinations as quickly as possible), causing multiple passengers to miss their connections (unless the entire system is redesigned, another unlikelihood), or necessitating the addition of another 10 to 15 percent more buses to both handle the capacity triggered by the slower movement of vehicles through the system and to provide adequate recovery time to the drivers. All these remedies are extremely costly – although these costs would be offset, to a considerable degree, by the occurrence of far fewer accidents and incidents stemming from the time-saving measures cited above, and as a result, fewer and smaller damage pay-outs.

Driving Forces, Sanity and Opportunity

Fragmented into roughly four sectors – charter, tour, intercity or scheduled service, and commuter/express service – only the latter type of motorcoach service experiences the phenomenon identified above: The driver never knows if or when a wheelchair user will be encountered, and as a result, will be “encouraged” to “cut corners” in anticipation of meeting up with one. In contrast, in the other three sectors of our industry, drivers almost always know when a wheelchair user will be on board, and the schedule can often be adjusted to compensate for the loading and securement time. Even when their schedules are not so adjusted, few tour, charter or intercity motorcoach schedules are so tight that a driver must “cheat” to preserve enough recovery time for the driver to catch his or her breath, and ward off the type of fatigue often experienced by transit drivers operating according to unreasonably tight schedules. And while the needs and demands of destinations (casinos are the most notorious examples) may place certain pressures on motorcoach companies and their management, these pressures more typically require the deployment of vehicles during times when drivers are likely to be fatigued because of circadian rhythm-related irregularities (i.e., driving shifts when their “body clocks” are demanding that they be asleep), rather than simply creating schedules a few minutes tighter than they should be.

Apart from commuter/express service (much of it provided by public agencies), the motorcoach community is fortunate to experience few pressures to squeeze minutes and seconds from their drivers’ recovery time – recovery time that is often generous enough to permit drivers to catch their breath on even tightly-configured round trips of “out-and-back” runs. But the trend of labor unions beginning to file lawsuits against transit agencies for statutory violations of meal and rest breaks should provide an added incentive for motorcoach schedulers to make sure they do not fall victim to the forces that have influenced their transit industry cousins, and which lead to a plethora of injuries and fatalities that, among other things, translate into higher insurance premiums, lower profits, and depressed wages.

Even more promising, the absence of such pressures in the tour, charter and intercity/scheduled service sectors translates into fewer incidents and accidents, and as a consequence, provides motorcoach service with the luxury of not only experiencing a better safety record, but the opportunity to market and advertise it. As a known proponent of “safety sells,” I believe strongly that the industry should flaunt its safety record – much the way the school bus community does (even though that industry’s boasting is disingenuous because its proponents count only those accident and incidents that occur when the passenger is on the bus, whereas the lion’s share of its mayhem occurs when its passengers are off the bus – mostly while crossing, a responsibility motorcoach services to not have).

With an estimated two million automobile-related accidents a year in the United States, compared to a smattering of unfortunately highly-publicized catastrophic accidents involving motorcoach services (largely fatigue-related), our community enjoys a tremendous marketing advantage that we have greatly undersold, while instead emphasizing comfort, convenience and cost-savings. Nothing would make me happier than to see us place more emphasis on what we do best – deliver our customers to their destinations not only on time, but far more importantly, alive and well.

Frankly, I think that, “Leave the driving to us” is passé. A better slogan might be, “Relax. We got your back.”