I have argued that accidents more often reflect what one fails to see than what one does not know. The same is also true of hearing:
- Discharging his passengers temporarily at a rest stop, a motorcoach driver advised them to await the announcement of the coach’s departure from inside the station. When, minutes later, he pulled out to deadhead to a nearby garage for refueling, a passenger who apparently thought she was being stranded began chasing the coach and pounded on it several times while running alongside. Ignoring these tympanic thumps, the driver turned right, knocked the decedent down, and the rear tires rolled over her. The coach came to a stop several hundred feet down the road when, peering through his curb-side rear-view mirror, the driver noticed a crowd gathering in the wake of his path.
- A schoolbus driver stopping on the near side of an intersection noticed a bicyclist leaning on a pole. When, after two other pedestrians crossed in front of the bus, the bicyclist failed to also cross, the driver turned right. During the turn, the cyclist – who presumably thought the bus would travel straight through the intersection, given the right-turning trajectory of long vehicles – crashed into the side of the bus, was knocked down and, along with his bike, was crushed beneath the right rear tires. When the driver felt the jolt, she immediately pulled over and began crying hysterically.
Reaction and Inertia
When a driver notices and recognizes a problem, it takes roughly a second and a half (a crude average) to begin responding: Roughly three-quarters of a second to acknowledge the problem, and another three-quarters of a second for his or her brain to direct the right foot from the accelerator to the brake pedal. On typical motorcoaches and transit buses, another half-second or so is generally consumed while air is forced through the system to the brake cylinders. Only then does the vehicle begin to decelerate, its rate depending on the acceleration and/or speed it had attained at that point, the vehicle’s mass, its trajectory (e.g., straight versus turning), road conditions, brake and suspension system characteristics and conditions, slope and terrain, weather, and a host of factors of somewhat lesser importance.
The interval between initial exposure to the stimulus and the commencement of braking is commonly known as reaction time. Curiously, with all the hoopla about safety, one rarely hears anything about nighttime reaction time (although it was made an issue in the first incident cited above), hearing reaction time, or what I choose to call “recognition time.” A working definition of the latter might include the time interval between a driver’s observation or perception of an event (i.e., a sight or sound) and the moment he or she decides it represents enough of a problem to react to it. In the two cases above, hearing a beat from inside the drum was not enough to trigger this recognition. Instead, one driver got the message from the rear axle’s bounce or “crush sensation,” while the other responded to subsequent visual evidence (ignoring the crush sensation before it, or continuing on to suggest he did not notice even the jolt).
In the first incident above, after the prototypical police cover-up whereby various “drivers” could not hear fellow officers pounding on the side of the bus, forensic experts simulating the experience had their ear drums practically punctured by the reverberations. In the second incident, such testing was unnecessary: The bombast was conveniently captured by an operable on-board video camera.
Foils and Foibles
Hard as they may try, defendants involved in such incidents will have a hard time convincing juries that their drivers did not hear the sound and fury of a fist or bicycle helmet blasting into the sidewall. They will have even more difficulty convincing the jury that these sounds were not recognizable as something significant.
Thankfully, many professional drivers are both more skilled and more concerned. Their success serves as a foil for the failures of lesser drivers:
- A transit driver who had observed no pedestrians in the crosswalk before turning left heard a thump on the street-side behind his mirror as he began turning. He immediately glanced at his side-view mirror, noted a pedestrian falling down alongside the bus, and managed to bring the bus to a complete stop before the rear axle reached her. For this feat of skill and judgment, the driver was suspended for 10 days, effectively scapegoated in his employer’s zeal to “contain the negligence” at the driver level (where the liability would be confined to respondeat superior so as to obfuscate the fact that its management had mounted a passenger-counting device on the windshield). When the driver produced photographs of his management’s recklessness at his disciplinary hearing, he was suspended for an additional 10 days.
When cases like this one finally end up in court, the evidence erupts like so many time bombs. The message juries get is unmistakable: The defendant’s driver was effectively told to “take the hit.” He dare not entertain the thought of honoring the oath he will be forced to take before testifying about the matter.
The Bothering Syndrome
As in many accidents, the spectrum between a driver not noticing and not caring is vast and often convoluted. But establishing the precise point on this spectrum that best characterizes the defendant’s conduct is of critical importance in most lawsuits because one end of it generally leads to punitive damages. It is one thing to make errors and omissions. It is another if they reflect the driver and/or his management not caring or not bothering. In the first two incidents referenced above, the jury is likely to think the driver was guilty of one or the other, and will easily imagine him or her thinking:
- Q: “Who does this clown think she is punching my bus?”
- Q: “If you run into my bus, you can expect to pay for it!”
Most jurors will feel that having one’s brain matter splattered along the pavement is too steep a price.
In cases like those cited above, establishing reckless disregard or indifference is not that difficult. In the first incident, evidence was revealed that the same driver pulled away from and stranded a small group of passengers who had pounded on the bus the very night before. In the second case, it was unlikely that the driver wept uncontrollably the last time she ran over a curb, a stone or even a possum. When a driver ignores a noticeable and distinctive stimulus, and his or her failure to respond to it leads to mayhem, plaintiffs’ attorneys veritably drool over the prospects for closing arguments: “Ladies and gentlemen of the jury, we are not asking that this common carrier, held to the highest duty of care, even meet this standard. We are asking simply that its drivers bother.” Pow!! Sounds like someone pounding the side of a bus.
Cowboys and Calculations
From the same Draconian economics responsible for our anemic fares and underpaid drivers, another excellent tool for sharpening both driver skills and driver goals recently bit the dust: The Motorcoach Rodeo. Admittedly, this activity may not have lassoed most drivers, and may have simply fine-tuned the virtuosity of those already at the top of the skill and responsiveness pyramid. Just the same, the demise of this activity left yet another void in the industry’s arsenal of standards and measurements.
With concern about replacing this activity with something still meaningful (albeit less costly and more accessible), the industry has already begun to engage in discussions, including the central issue of the most recent meeting of the Driver Training and Communications Committee of the ABA’s Bus Industry Safety Counsel. Two things I would like to see considered would be (a) testing of and training for improved night vision, and (b) testing of and training for improved sound recognition. (Both vision and hearing tests are already formal requirements.)
Admittedly, a bus or coach driver should know something is askew if he or she hears the semblance of a fastball striking the sidewall. But amidst the ambient noise of daytime driving or the diminished visibility of nighttime driving, it would not hurt to sharpen our drivers’ skills to both hear and see, and to acknowledge the importance of certain stimuli when they one does. Clearly, more subtle sights and sounds might still provide important clues to accident prevention.
Buzzes, Buzzers and Buzzing
In my discussions with the driver falsely accused in the last example above, he recalled not only starting his shift with “that buzz one has when he is completely alert and focused,” but maintaining that buzz throughout his shift. The general public is not unreasonable in demanding that such a sensibility comprise a component of the highest standard of care.
When a stick or stone strikes the side of a bus, the driver need not hear another buzzer to know that the sound might represent something important. But whether the driver fails to hear the bell or simply fails to respond to it, if the bus or coach then rolls over someone’s head, that buzzing the defendant will soon hear in the courtroom is the sound of jurors whispering a phrase that strikes fear in defense attorneys’ hearts: “Not bothering.” Otherwise, that buzz you hear is the sound of punitive damages coming.