Smiting the Passengers: Harming Passengers Deliberately

Driving around a bus full of mostly poor, often angry passengers has its rewards, even if making a decent living is rarely among them. But it also has its downsides. Bus and motorcoach drivers spend considerable time remaining courteous and polite through a spate of insults, ridicule and complaints from passengers who rarely have access to the targets responsible for making their lives so miserable and dreary. These drivers spend time as repositories for chewing gum, spitballs, profanity and racial epithets. Sometimes they are physically assaulted.

Every transportation system’s management hopes its drivers will handle on-board problems professionally. But when drivers are angry at individual passengers or groups of them, they have bountiful opportunities for pay-back. A few examples from actual experience, and their lawsuits, illustrate the challenges management faces in monitoring, evaluating, supervising and enforcing appropriate driver conduct, and identify the liability exposure to which management may be subjected when their drivers defy the rules of the road.

Trading Terror for Peace

When passengers do not behave, and management fails to support the drivers’ efforts to make them, drivers sometimes elect extreme measures to cope. Sometimes these efforts lead to serious incidents. Other times they merely lead to serious risks:

  • A school district failed to discipline unruly schoolbus riders who continually screamed, changed seats, opened and closed windows, ran around the bus, punched one another, and engaged in pushing and shoving matches – all with the bus moving. To drown out the distractions, one driver turned up the AM radio to blare volume. When she pulled away from a stop after discharging a kindergartner whose passage across the roadway she failed to track, she promptly ran her over. Because of the radio volume, the driver did not hear the child’s screams as the front bumper knocked her down, the front axle stem crushed her shoulder blades, and the left rear tire crushed her skull.
  • Another school bus driver facing similar students had an even more novel approach: Stopping her bus straddling a railroad crossing, she announced that she was not going to move it until the students calmed down. Fortunately, the trains were running late that day, and the driver was merely fired.

Centrifugal and Inertial Subterfuge

When deposed, drivers never seem able to articulate the principles of inertial and centrifugal force. Yet selected incidents suggest that many of them understand these principles quite well:

  • A semi-ambulatory transit rider upset with the driver limped to the front of the bus and stood alongside him. Annoyed or frightened, the driver deviated from the route alignment to reach a police station, stopped the bus, and demanded that officers remove the passenger. Instead, one officer notified the driver’s dispatcher, who deadheaded another bus to the scene to off-load the other passengers, and another officer drove the trouble-maker home. The driver was forced to deadhead his empty bus back to the storage yard where he received a scolding. The next day, the same passenger boarded the same run operated by the same driver. Passing the farebox, he flashed the tape recorder he intended to use to “catch him this time.” As he limped to the rear of the bus, before he took a seat, the driver pulled away from the stop and then slammed on the brakes, jettisoning the passenger onto his face in the aisle, and breaking his hip. Largely because it was hard to establish that this incident was deliberate, the defendant was victorious in the inevitable lawsuit.
  • Nearing the end of an all-night trip, with no rest stops, trip to a state prison, an impatient visitor climbed down the stepwell before the coach was waived onto the grounds by a security guard. When she refused to return to her seat, the driver simply opened the door, turned left into the prison’s parking lot, and pitched her off the bus. She fell beneath the rear tire and was crushed. This owner-operator’s underwriter chose not to risk a trial, and settled the case for $2 million.

Fun with Doors

Drivers can find clever ways to cope with system problems not even the fault of the passengers – problems like schedules being too tight or having insufficient recovery time. Some of their remedies involve considerable mayhem:

  • Forced to operate routinely-overloaded buses on schedules with negative recovery time, a handful of transit drivers began stopping their buses by shifting into neutral, and hitting the rear door-opening switch. This prank triggered the interlock and shuddered the bus to a stop. Discovering this practice, management did not only not fire the drivers, but instead instructed its mechanics to rewire the interlock to bypass the neutral and brake switches. This trick cured the immediate problem. But it also made the doors open in response to a whisper. On a subsequent trip on another overloaded bus, a driver gunned her vehicle from a green light and, before completing her left turn, pitched three passengers through the closed rear door into the street.
  • Three bus drivers, in separate incidents in the same transit agency, prematurely closed the doors on passengers alighting from the rear stepwell. Because of multiple door, handrail, signage and mirror dysfunctions, negligent vehicle specification, the dismantling of safety features and/or negligent maintenence, all three passengers fell out of the bus and were seriously injured. Needless to say, all three filed lawsuits.

Why do bus drivers engage in such conduct? Simple: Because they can. They know their employers are unlikely to even reprimand them in order to imply, in the inevitable lawsuits, that their behavior was appropriate (a ruse that almost never works and often backfires). Treading water on the crust of the Working Poor, they have nothing to lose, particularly since they serve as co-defendants solely as a formality.

To Film or Not to Film

The transit and pupil transportation industries, in particular, have mixed feelings about on-board video surveillance cameras: While their use would certainly help them defend against fraudulent lawsuits (e.g., standees claiming they were knocked down by erratic driving), they may also record evidence of driver abuse or apathy:

  • Awaiting his stop in the ‘hood, a gang-banger turned up his ghetto-blaster to “announce” his stop. A well-dressed adult told him to turn it off. As the gang-banger started to alight, he told the adult to effectively engage in an anatomically-impossible sex act all by himself. The adult scampered down the stepwell, grabbed the hoodlum by the collar, pulled him back onto the bus, and starting punching his lights out. The terrified hoodlum pulled out a pistol and shot up the bus – missing his assaulter but killing a small child and wounding several other passengers. Four video-cameras mounted in the interior caught the entire adventure on tape – including the driver’s failure to engage in appropriate passenger management efforts or notify the police as the incident began to escalate into violence. They also picked up the sound of police sirens in the vicinity of the bus in the early stages of the violence – vehicles the bus driver made no effort to signal or summon. However, the videotape also demonstrated how little time had elapsed during this entire episode, and how quickly events unfolded. The case was eventually dismissed.

Double-Edged Technology

In simple terms, technology can perform wonders for safe operators, particularly if they are willing to hold their drivers accountable. The most underrated benefit of monitoring is its use as a deterrent. In case after case I have examined, drivers testified that they would never have engaged in the conduct-in-question had they been monitored. In contrast, the application of technology may pound additional nails into the coffins of operators whose management fails to monitor, evaluate, supervise or enforce the drivers’ compliance with its policies and procedures.

In truth, the fear of liability exposure is not the only deterrent to the use of video cameras or other monitoring devices. Another powerful deterrent is the time it takes to examine their findings. In more than a few lawsuits, I learned that no one in management had ever reviewed a single videotape among those recorded constantly. Few transportation staffs seem to include someone who knows how to read a tachograph, even when drivers routinely change the discs and turn them in. In paratransit service, in particular, the critical review of drivers’ logs seems like a lost art. One wonders how many motorcoach managers review trip logs. When these omissions surface in deposition and trial testimony, they often trigger punitive damages since, in many states, this doctrine is invoked by the establishment of indifference or disregard. In lawsuit after lawsuit, I find negligent monitoring to be the Achilles Heel of public transportation, and the cornerstone of its liability exposure.

One way to avoid punitive damages is to “contain” the liability at the driver level. That way, the defendant is only negligent through the doctrine of respondeat superior, reflecting the fact that the incident occurred within the scope of the driver’s assigned duties. But defendants cannot argue that the driver erred despite their best efforts if they did not make any. In terms of assessing damages, not bothering is generally more costly than making mistakes.

Collecting and reviewing evidence generally acts in the interests of safe and sound operators, and against the interests of unsafe and unsound ones. The fact that many industry insiders are opposed to the use of technology to monitor drivers suggests that weeding out the bad operators is simply not on their agendas. This is not necessarily so. And attorneys representing accident victims may not be able to establish such a connection. But learning of these dynamics, most jurors seem to figure it out.

Wishing and Haunting

It is hard to not feel sorry for the victims of a public transportation accident. But watching a decent operator lose his life-long, family-owned business because of the negligence of a single driver is heartbreaking.

Many industry members wish all this technology would simply be forgotten. As the late jazz trumpeter Dizzy Gillespie put it, “Old Cadillacs never die. They just fade away.” For those industry insiders opposed to the NTSB’s call for the universal installation of flight recorders, and those who believe this is also the FMCSA’s unwritten agenda, one should think carefully about the genuine benefits of such technology were it unleashed to realize its full potential and reach its obvious goal: Replacing bad operators with good ones. Were I a motorcoach operator, I would want nothing as badly. Maybe next Christmas, Santa would bring me more passengers paying higher fares.

There is an old tale about a man with three wishes. He uses his first wish to obtain great wealth, which he acquires from an insurance policy when his son is soon killed in an accident. He uses his second wish to bring his son back to life. When the ghoul appears on his doorstep, he uses his third wish to send him away. As always, one should be careful what one wishes for.

Publications: National Bus Trader.