An industry outsider (say, a juror) might consider the variation in passenger assistance within the public transportation industry alarming. Exploring a single theme like boarding and alighting illustrates the extremes:
- Drivers of MediCare-funded non-emergency medical transportation (NEMT) services are required, as a regulatory matter, to physically assist every passenger on and off the vehicle. In real life they do not, of course: NEMT reimbursement rates pay service providers only when the vehicle is moving.
- In contrast, many paratransit companies are paid on a per-hour basis. So they sporadically assist non- or semi-ambulatory passengers on and off, even while they obviously must help wheelchair users board and alight.
- Transit drivers rarely do either, even when a passenger’s vulnerabilities are glaringly obvious. Realistically, physically assisting or spotting every passenger boarding or alighting could grind transit service to a halt — particularly as the goal of most transit passengers is to get from their pickups to their destinations as quickly as possible.
- Every schoolbus in Rhode Island must have an attendant on board who, among other things, must physically escort each crossing student to and from the bus. In California, schoolbus drivers must do this. In most other states, no schoolbus drivers or attendants do this.
- Limousine drivers typically assist passengers in and out of the vehicle, while taxicab drivers rarely do.
- Tip-driven shuttle drivers and taxi drivers serving major destinations (airports and hotels) more typically fetch luggage than assist passengers in and out of the vehicle.
- Motorcoach drivers providing tour and charter service generally assist or spot passengers boarding or alighting. Those providing commuter/express service (including public agency and contractor drivers) rarely do — largely because the schedules are often too tight.
These examples illustrate an important theme that courses through the provision of public transportation: Monetary incentives induce safety compromises which place passengers at risk. Yet this tradeoff is rarely considered appropriate at the lower court level, where the preference for passenger safety is firmly endorsed — at least if the plaintiff’s counsel bothers to articulate the trade-off.
Operating on a tight schedule triggers safety compromises even more commonly. For those readers of prior installments on the theme of safety compromises, a few of the modes noted above — particularly transit, paratransit, NEMT, and taxi services — commonly operate on schedules much too tight. In contrast, motorcoach and schoolbus schedules are typically far less tight — although exceptions abound.
Schools of Thought
One oddity of MediCare-funded transportation is that the decision to escort passengers between the vehicle and the origin or destination is actually a state-by-state decision — even while MediCare funding is Federal. Interestingly, there are differences in thinking about this assistance that relate to cost savings and efficiency:
- Many or most paratransit agencies consider door-to-door transportation more troublesome, and more costly, than curb-to-curb service.
- A few think otherwise: Envision observing a frail-elderly ambulatory passenger lumbering toward the vehicle. With a driver at his or her elbow, this walk might take less time. Improved safety is a perk.
The reality is that passenger assistance is not just a safety issue. For those who know what they’re doing, it is also an efficiency issue. Subpar passenger assistance is also a flagrant liability sore-spot.
Vehicle Design and Passenger Necessity
Another variable related to the need for passenger assistance is vehicle design and equipment. All transit buses and motorcoaches have at least one stepwell. Many van- and minibus conversions do not. Particularly on a high-floor conversion where the only rock-climbing appendages are a thin running board and perhaps a narrow molding below, the lack of passenger assistance translates into considerable risk.
The same is true for standee appendages in the passenger compartment. Transit buses at least contain horizontal and vertical stanchions. Many other types of vehicles do not. This absence is not problematic in schoolbuses, as standees are prohibited in all 50 states. But it is problematic in motorcoaches providing commuter/express service for transit agencies whose schedules are often too tight, or the vehicles overcrowded. Those hand-grips atop aisle-side seatback are helpful for plopping down onto or arising from seats, or navigating to or from a window seat. But they support standees only in those moments when they need little of it. If the vehicle so much as stops short, these grips are almost worthless. So too are the horizontal tubes supporting overhead package racks. These devices are no match for the inertial and centrifugal forces exerted on standing passengers, particularly when the vehicle is involved in a collision.
Both stepwells and stanchions illustrate another dimension of safety compromises: They can be committed at the vehicle design, specification or customer choice level. The ADA requires all vehicle to have intelligible handrails — even while they are impractical for some small vehicles like sedans. At the same time, merely having a stepwell is often not enough, even in transit service. In motorcoach service, a stepwell without passenger assistance is an illusion. Years ago, I served as an expert witness in two cases against the same operator where, a week apart, boarding passenger s were killed tumbling down the stepwell.
Failing to engage the kneeling feature is a similar pitfall, where each up-and-down omission saves perhaps six seconds. Particularly on motorcoaches and high-floor transit buses, the 14-inch-high bottom step can be a challenge for a many passengers, even when the vehicle is pulled adjacent to a curb. This is more problematic at rear doors, since alighting is usually more difficult than boarding, and many drivers leave their rear stepwells far from the curb by “nosing in” their buses.
As a function of their leaf-spring suspension systems, schoolbuses cannot kneel. Yet the size of many passengers combined with the high lower step and the absence of passenger assistance in boarding makes the absence of a kneeling feature problematic. But in a society with 585,000 fully-subsidized schoolbuses and 33,000 unsubsidized motorcoaches, these enigmas are overlooked.
Among the most flagrant negligence and ignorance at the vehicle level is the installation of lap beltson vehicles in the 21st Century. Lap belts extend the “envelope of restraint” radically further than would a shoulder belt. More importantly, lap belts turn their occupants’ waists into fulcrums and accelerate their heads into the seatbacks, modesty panels or other objects in front of them. Further, the moment you belt two passengers to a typical 70-lb. seat, the loads on the anchorages (whether into the floor or integrated into the seats) quadruples or quintuples Most of the cost of any type of seat belt system lies in the seat or securement system anchorages, while the “loads” are the same for a lap belt or a three-point belt.
Another peculiar subtlety is found in FMVSS #207. Seat anchorages must bear 20 times the weight of the seat. But each seat belt section must bear 2500 pounds of force (thus 5000 lbs. per lap belt), while each section of a 3-point belt must bear 3000 lbs. (thus 6000 lbs.) So the anchorages or integrated seats of our typical 70-lb.l seat, when loaded with two lap belted passengers must now bear 10,000 lbs. And with two 3-point belted passengers, 12,000 lbs. Both are a significant upgrade from the initial 1400 lbs. (i.e. 20 times the weight of the seat). Most seatbelt anchorages or integrated seats are built, at the OEM level, to accommodate these higher loads. But they also come with higher costs.
Finally, the most minor cost between lap and 3-point belts is the cost of the extra belt. Otherwise, it is not for no reason that three-point seatbelts have been required for drivers of all types of vehicles for decades, and required at wheelchair securement positions since 1991.
Least Assistance to Those Needing the Most Help
Seatbelts provide a convenient transition from vehicle design to operations. From my personal experience, the taxi driver who does not zoom away before letting a passenger connect his or her three-point belt has not yet been born (or at least has not reached driving age). Otherwise, the type of seatbelt available and its usage is understandable on modes with huge vehicles on their own rights-of-way (i.e., passenger rail) or on which a minor collision is a rarity (i.e., airplanes).
Regarding passenger assistance, those passengers requiring the most assistance often get the least of what is needed. Failing to secure or properly secure a wheelchair is the most common and most blatant safety compromise. No single omission can create more recovery time than not securing a wheelchair. In certain sectors, like the non-emergency medical transportation (NEMT) sector, the failure to secure wheelchairs is a systemic failure. This is largely because of the hapless rate structures which fail to pay service providers when the vehicle is not moving. This theme will be explored more thoroughly in a separate installment of this series.
Words to the Unwise
More typically, the highest rate of fatalities and serious injuries occur in collisions.[1] As many examples cited above illustrate, the exceptions are many and troubling.
The key word in the phrase “safety compromise” is not the word ‘safety.’ It is the word ‘compromise.’ What is compromised is almost always obvious. When some plaintiff’s attorney or his or her expert figures out the trade-offs, the consequences can be painful for the defendants. As noted in previous installments on this theme, a compromise gets painfully close to the magic word for plaintiff’s counsel: ‘Deliberate.’ In many states, deliberate translates into the jury being instructed that is may assess punitive damages. Most jurors are powerless in their normal lives. Nothing makes them froth more than this sudden, rare opportunity to exact justice and “get even.”
If they were not committed deliberately, one might suggest that safety compromises be watched carefully. But as they are obviously committed deliberately — usually by one or several individuals in upper management — monitoring drivers for such things is folly. As the old saying goes, “Ye rolls the dice and takes you chances.”
[1] This is not true in schoolbus service where more fatalities and service injuries happen off the bus (mostly in crossing accidents).
