Many of God’s creatures have the most uncanny abilities. For example, a shark can smell a single drop of blood as it disperses from a mile away. At the other end of the evolutionary scale, famous test pilot Chuck Yeager’s vision was so extraordinary that he could spot an enemy aircraft flying in the oncoming direction a good 10 minutes before any other pilot could. Flying several hundred miles per hour, think about this precision. The worlds of biology and physiology are filled with creatures with such abilities.
In the world of liability, we are indeed fortunate that we are not held to such standards – even though there is enormous appeal to a work force with Chuck Yeager’s eyesight, and I imagine quite a few general managers would trade off a considerable amount of other liability exposure to have one. However, we in the motorcoach world are known as “common carriers,” and as such, are held only to the highest duty and standard of care – not for noting the asterisks of our operating environment. In one lawsuit I am currently engaged in, that state’s regulations hold transportation providers carrying disabled or elderly passengers to even a higher standard than for able-bodied riders.
Standards and Perspective
In a great many passenger transportation cases involving all modes, much comes down to whether or not the jury feels that the efforts articulated by the driver and management exemplified the highest standards and duty of care:
Traveling through a major airport terminal, the driver of a rental car company’s full-size shuttle bus bobbed and weaved through a swath of unmarked lanes on a concrete roadway where two-inch-wide, one-inch deep “expansion joints” were located at regular 60-foot intervals. With hundreds of unpredictably moving objects swirling about him, and scanning his mirrors so often that they threatened to melt, the hapless driver pulled as close to the curb as he could possibly get. (The curb lane was blocked off with bollards because, several years earlier, a car had pulled up onto the sidewalk and wiped out several pedestrians.) Wearing moderately high heels, a female passenger alighted with a suitcase in each hand, and promptly stepped onto and wedged her heel into an expansion joint, after which she broke her ankle, among several other injuries of no great consequence. Naturally, she filed suit against the car rental company, whose attorneys I assisted in defending it.
Among my principal arguments that one of perspective: Compared to an expansion joint, consider all the other genuinely dangerous and mostly moving objects the poor driver had a duty to avoid colliding with, the difficulty and dedication of doing so, and the distraction from observing these phenomena that would have occurred had the driver been required to identify every expansion joint. I also pointed out that most of all the expansion joints were covered by traffic, and further, that with the vehicle’s pneumatic suspension system, the driver could not even feel them as his bus traveled over them. At the airport, I took photograph after photograph of other buses opening their doors onto expansion joints. Keep in mind that with the front door and a double-wide rear doors of a shuttle bus, roughly 12 of the vehicle’s 40 feet of length consisted of doors – and the expanses covered by a single bus’ doors covered 20 percent of the distance between this airport’s successive expansion joints. I also noted and photographed the layers of shadows and reflections that made the recognition of most of these joints extremely difficult if not impossible – even if a driver were foolish enough to prioritize finding them above the scores of other hazards he or she had to constantly avoid striking. Finally, walking around the city, I found building after building containing expansion joints indoors, smack in the middle of purely pedestrian walking paths – including the airport itself and the city’s Navy Pier.
Trivia and Responsibility
I am no stranger to negligent drivers and their transportation systems’ management. But there are reasonable limits to what one can expect them to do in order to avoid injuring a passenger, pedestrian or motorist. At some point, people on the ground must take some modicum of responsibility for their own actions. There are a good many cases where failing to look where one is going does not comprise contributory negligence, and where the negligence of a common carrier and its professional driver and staff create an environment where a passenger or pedestrian has a right to rely on the carrier for doing things like selecting a safe bus stop, or perhaps keeping the lower, inside band of the windshield clean. Rocking and rolling one’s head around to avoid the otherwise blind spots created by exterior, rear-view mirror housings is yet another. There are plenty of examples. But they are not endless. If a driver must scan all the mirrors every five to eight seconds while driving, at high speeds, down a moderately-congested freeway, there are limits to what else he or she can focus on, despite the excellent principles of defensive driving that maximize the information a driver must continuously absorb. In my opinion, watching for purposeful, shallow slivers in the roadway lies outside these limits, while at the same time, opening the doors over a pothole or alongside a coned-off construction area while pulling into a bus stop lies at the opposite end of the spectrum. Some of this discussion borders on what is known as human factors expertise. But most of it borders on common sense, and when properly documented and explained to them, jurors are quite capable of separating out the slivers and pinholes from the ditches and potholes.
One area of training I almost never find is a discussion about the types of objects a driver is responsible for noting (there are a few exceptions like fire hydrants that seem to pop up in many operating manuals). I am currently working on a case where the driver of a double-decker booster bus converted from a high-floor school bus with passengers riding while standing on the upper deck failed to notice the large sign on the side of a bridge warning those approaching it that is underside lay 15 feet above the ground. This is hardly comparable to not noticing a crack or chip in the roadway surface when surrounded by a swarm of bobbing and weaving vehicles.
Alertness, perception, focus and good vision are all important, and good bus and coach driver need to possess and employ them obsessively. But they must also not focus on tiny objects comprising remote risks at the expense of paying less attention to the things that really matter. Knowing the difference between the two is part of performing according to the highest duty and standard of care. If a driver genuinely does this, he or she can ignore the occasional acorn or banana peel without the fear of being held accountable for failing to help a passenger avoid it.