Safety and Liability

COVID-19, Shenanigans and Liability
Part 1: Wheelchair Securement
A ancient cliché declares that a chain is
only as strong as its weakest link. Such things
matter most when things are their worst. In
the best of times, the public transportation
industry’s weakest link is wheelchair securement.
In the worst of times, this link is crumbling.
The Best of Times
Before COVID-19 arrived, a study found
that 71 percent of wheelchairs transported
on fixed route transit vehicles are not secured.
Back then, securing a wheelchair simply
made the vehicles run further behind. Without
committing other safety compromises to
offset the time squandered, drivers risked
reprimands by performing this task. Now,
with COVID-19, securing a wheelchair compromises
social distancing from our mostvulnerable
passengers (those most likely to
get really sick or die from COVID-19). Affixing
a lap belt and shoulder harness brings
drivers and wheelchair users practically faceto-
face with them.
Presumably for such reasons, when
COVID-19 struck, it did not take the transit
industry long to invent new shenanigans to
avoid securing wheelchairs. First, transit officials
began “mode splitting” wheelchair users
to paratransit – a flagrant violation of the
Americans with Disabilities Act (ADA), even
while a sensible deviation from it given the
circumstances. Paratransit members of
APTA’s Access Committee suggested that,
on paratransit services, wheelchairs should
not be secured at all (and along with it, obviously,
these passengers secured into their
wheelchairs – a similarly-disregarded practice
in the best of times). Regrettably, there
are no studies comparing the risks of ignoring
inertial and centrifugal forces to the risks of
COVID-19. Of course, no study is needed to
ensure a driver’s safety by dressing and outfitting
him or her properly. There is no comparable
protection to wheelchair users whose
chairs are not secured.
Interestingly, the ADA does not actually
require wheelchair securement. In real life,
of course, stupid and reckless policies fare
poorly. In a 2002 lawsuit (Borja v. Santa Clara
Valley Transit Authority) against a transit
agency allowing passengers to decline their
chairs’ securement, I helped the plaintiff win
$2.1 million, the defendant’s counsel was verily
laughed out of court. Two months later,
the transit agency fired him (while it would
have been more appropriate to fire the system’s
general manager). I have now testified
at trial in more than 100 wheelchair securement-
related cases since.
Shenanigans are not the answer and they
can incur serious penalties. Taking responsible
actions and making reasonable interpretations
of regulations are.
Danger And Donations
Compared to the practices of non-emergency
medical transportation (NEMT) service
– pre-COVID-19 or otherwise – transit service
is stellar. Part of this stems from the fact that
transit services are paid for whether or not
the vehicle is moving. In the NEMT sector,
the services (provided mostly by contractors)
are paid only when the vehicle is moving. In
other words, wheelchair and passenger
securement is effectively a donation by the
service provider and its funding agency or
(increasingly) its broker. In the era of COVID-
19, it is a donation compounded by a risk: If
only 73 percent of wheelchairs were secured
on transit during the pre-COVID-era, what
percentage of these chairs are likely secured
on NEMT service during the COVID-19 pandemic?
The pre-COVID practices in this area are
stunning to those unfamiliar with them.
Frankly, many NEMT providers deliberately
do not allow their drivers to secure wheelchairs,
or make it impossible for them to do
so in numerous ways: Pieces of ADArequired
equipment are often missing. Often
they are mismatched and do not fit together.
Many devices are broken. Wheelchair tiedowns
are commonly immovable – often
rusted in place in securement tracks. As an
expert witness, I have not merely examined
many vehicles on which no wheelchair had
ever been secured during that vehicle’s entire
life span. In a few cases, I have found entire
fleets in which not a single wheelchair had
ever been secured in any of its vehicles.
As an asterisk, almost every one of these
cases is a civil rights case. However, they are
very different than most civil rights cases.
Before her revolt in 1955, when Rosa Parks
was forced to sit at the rear of the bus, at least
her seat was bolted to the floor. This is not the
case when one’s seat has three or four tires,
and its frame is not tied to the vehicle – essentially
a moving floor. A rolling chair on a
moving floor is a sure formula for carnage.
Prudence and Priorities
To my knowledge, no such shenanigans
are occurring in school bus and special needs
transportation. Regrettably, the school bus
industry is awash in confusion about COVID-
19 transportation in general, notwithstanding
my own plan for returning all students to
physical school by this coming March (see
“Getting Students back to School During
COVID-19” in NATIONAl BuS TRADER’S
online October, 2020 edition) – advice being
completely disregarded. Despite the chaos,
special needs students and, particularly
wheelchair users, are not being sacrificed.
Many wheelchair using schoolchildren who
had previously been mainstreamed (a
requirement known as the “least restrictive
environment” in the Individuals with Disabilities
Education Act [IDEA]) are now being
transported separately on smaller vehicles –
much like fixed route transit has mode split
most wheelchair users to paratransit.
The taxi and limousine sectors are also
doing better in the COVID-19 environment
largely from a few factors: (a) Plexiglas
shields, (b) the mode split from transit now
thickening their densities and (c) school transportation
(especially transporting special
needs students). The taxi sector ’s abilities
were hamstrung as this sector was decimated
by the invasion of TNCs (i.e., uber, lyft), and
compounded by questionable policy decisions
(e.g., New York City initially assigned
11,000 taxis to deliver meals and other packages).
Those rare taxis that are wheelchair
accessible have come in handy, and savvy
drivers protected with PPE are serving wheelchair
users nobly. Plus, in these vehicles’
smaller passenger compartments, failing to
28 • National Bus Trader / December, 2020
Safety and Liability
by Ned Einstein
Seventy-one percent of
wheelchairs transported
on fixed route transit vehicles
are not secured.
I have found entire fleets
in which not a single
wheelchair had ever been
secured in any of its
vehicles.
secure a wheelchair is not as dangerous as
it is in a bus, van- or minivan-conversion,
with more room for a wheelchair to tip completely
over.
Listening and Learning
like school buses, motorcoaches are not
known for wheelchair securement failures.
Of course, most of this reflects so few wheelchair
users riding motorcoaches (most
exceptions occur in commuter/express service
operated by or for transit agencies –
which, again, rarely secure these passengers’
chairs). As I have noted occasionally in the
pages of NATIONAl BuS TRADER, this trend
is slowly changing. Some securement equipment
is making it faster and easier to secure
wheelchairs (even while some new equipment
is confusing, dangerous, pointless and
poorly-designed, and many drivers cannot
figure out how to operate it). Some models
even help a subset of wheelchair users secure
their own chairs and themselves into them.
These innovations have emerged largely on
a handful of transit buses. They are virtually
unknown to the motorcoach sector.
More importantly, with the emergence of
the MCI D45 CRT lE, we now have motorcoaches
designed to facilitate wheelchair
boarding and alighting. Further – and of critical
importance in the era of COVID-19 –
more-vulnerable wheelchair users can ride
in a vestibule separated from the remainder
of the passengers by seven steps and an
entire floor.
The Worst of Times
Hopefully, motorcoaches will be
deployed to supplement our nation’s
school bus fleet as schools begin to reopen,
and where social distancing limits the utilization
of vehicle capacity to only one
fourth of the seats in the nation’s finitesized
school bus fleet. I hope the motorcoach
community embraces its opportunities
to diversify into the provision of
numerous other services where there is
considerable need, and where motorcoaches
would have ideal characteristics
(see Drivers v. Robots, Parts 1, 2 and 4:
Motorcoach Survival in the Era of COVID-
19 in NATIONAl BuS TRADER, May, June
and August, 2020). At the moment, however,
only about 15 percent of motorcoaches
are in operation. The industry is
quite simply squandering its opportunities
to contribute to our current needs and survive
financially, as some other sectors
(taxis and limousines are the best examples)
have done.
like other modes where well-trained
and well-protected drivers face few risks
securing wheelchairs, the same would be
true of motorcoach drivers. This is especially
true since, with vehicles not filled to
capacity, wheelchair users would be
socially distanced from other riders. The
safety risks to these riders, other passengers
and drivers would be miniscule. The
liability risks associated with failing to
secure these passengers’ wheelchairs can
be considerable.
This is only the tip of the iceberg. under
the ADA, a transit system is forbidden to
deny service to a wheelchair user (liberty
Resources v. SEPTA, PA, 2001). Copy-cat
lawsuits have dotted the transit landscape.
God help the motorcoach company
committing this violation when a similar
class action lawsuit is extended to this
sector. Beyond possibly destroying that
defendant’s business, such a suit will radically
alter the motorcoach transportation
landscape.
Most motorcoaches on the road have a
wheelchair lift and two securement positions.
Most of them have restrooms and
countless other amenities that render motorcoaches
our most versatile vehicles. Yet they
are the least used while their provincial owners
sit around, lobbying for bail-out funds.
Motorcoach operators would do well to
chase the positive opportunities rather than
wish for the negative ones.
There is a saying among the jaded political
veterans in Washington, D.C. that, with
elections, “You deserve what you get, and
you get what you deserve.” Doing the worst
job in the worst of times will yield the results
one should expect it to. The opposite is likely
to accrue to those doing the best they can in
the worst of times. This is even more true
when one helps those most in need during
the worst of times. We even have a name for
such people. We call them heroes.