State by State Variation in Crossing Procedures, Part 2: Liability

As the first follow-up to the Introduction to this series of installments, the reader may be surprised to find liability included, much less the “lead-off” topic. But this is because differences in liability have profound impacts on an enormous range of differences in vehicle requirements and specifications, policies and procedures, tendencies to retrofit safety devices, and even the conformity with what many believe to be universal crossing practices – such as students crossing in front of the bus. Sadly, as we will see, our nation is splattered with examples where safety has been deliberately compromised by efforts to reduce liability exposure.

Most significant of these differences – I think labeling them heinous might be a bit overboard – is the fact that in five states (Delaware, Maryland, Virginia, North Carolina and Alabama), the victim of an accident or incident cannot collect any damages if he or she contributed a mere one percent to the cause of the incident. Exceptions are typically made for individuals below age seven, for legislators have found difficult to hold responsible for any form of contributory negligence. This legal phenomenon, which I suspect did not even exist in the darkest moments of the Third Reich (at least for most German residents), is clearly the handiwork of the U.S. insurance industry, and industry that I personally believe strongly should be nationalized

Comparative Negligence

Formulas for assigning negligence among various parties (including the victim) differ among states. The most three common forms are often referred to, in the states where they exist, as (a) split-the-pie states, (b) 51% states and (c) one-percent states (the five states identified above).

In pure “split-the-pie” states, a jury simply has the ability to assign any percentage of negligence to any party of its choosing. Because this practice often leads to some parties that contributed virtually nothing to the negligence being assigned a small “slice” of the damage award pie, most states have evolved or gravitated to become “51-percent” states.

The concept of a 51% state rules that if the victim of an incident contributed 51 or more percent to the negligence, the remaining co-defendants can simply “walk away,” and are relieved of any and all responsibility for the incident, even where it is clear from the facts that they may have contributed significantly to it. In one crossing-related lawsuit in which I was engaged, the judge’s clarity in instructing the jury led to an elementary school student being held 51 percent responsible for stepping into the roadway directly in front of an approaching car while thinking it was time to cross the street to meet his approaching bus. Both the supervising parent whose mistaken articulation of the “code word” to cross triggered the incident was deemed 21 percent responsible for the incident, while the jury deemed my client, the bus company I was defending, 28 percent responsible (since 10 minutes later the bus came back on the side of the street where all five students came from, and there would have been no need to cross to board it). Of course, both my client and the parent simply “walked away” from their respective responsibilities, as a liability matter, because of the 51 percent formula.

By far, the worst abuses in litigating crossing incidents occur in one-percent states. This is because – with the exception of an under-seven-year-old child who cannot commit contributory negligence as a matter of law – it is hard to conceive of a crossing victim not contributing to some tiny degree to the incident, if only because that student might have avoided it by simply looking both ways before crossing the street. The fact that children below age 13, and particularly below age 10, do have possess the ability to cross streets as a function of their age and development (see a 1968 Swedish study called Children in Traffic by educator Swina Stindell [check spelling]) is complete disregarded in this evaluation, and thus, school districts and contractors can practically ignore crossing safety responsibilities with impunity, since even the majority of motorists who run them over walk away from any liability. Liability on the part of school districts is almost impossible to establish – although I helped to so, do a limited extent, in a lawsuit in Maryland.

With virtually no responsibility for liability in these five states, one can easily see how abuses can be exaggerated to tip the scales even more away from a school district or its contractor. The City of Baltimore is a stunning example. After having removed its crossing control guards from its fleet, the Baltimore Public School District implemented a set of procedures for boarding and alighting that insulate them entirely (with my exception noted above) from any liability: Children are require to cross the street to their bus stop before the bus reaches it (whereby its flashers could assist them in this crossing) – a common error made, by the way, by a vast number of schools across the country that fail to distinguish between the bus stop and the waiting area across the street from it. Further, upon alighting, students are required to walk to the rear of the bus, along the sidewalk or facsimile, and wait there until the bus departs and vanishes over the horizon, before crossing. With the school bus not even on the scene when the student crosses to or from the bus stop, this school district feels completely insulated from any remote liability. (I am awaiting a few scenarios I have experienced in other states to puncture this delusion.)

I am not citing these differences to purposely embarrass any members of these states pupil transportation communities, many members of whom have devoted their lives to student safety and wellbeing in pupil transportation service. Just the same, the legislatures in these states have established standards that have removed any incentive for a school district or contractor to express or articulate any concern for crossing safety, and have enabled them to ignore implementing any measures remotely related to it to which they might be held accountable. Yet because crossing safety is a mere speck on the scope of a one-percent state’s impact on civil law, there is little hope for any change. One might argue that in the current political climate, where any form of accountability or justice against large corporations, insurance companies and financial institutions is virtually non-existent at the executive and legislative levels (particularly at the Federal level), and where the Supreme Court is currently weighted heavily against it as well, the law-of-the-land for comparative negligence in one-percent states weighs heavily against the last remaining line of justice: Personal injury attorneys.

This result is not a blanket condemnation of this position, and as a historical matter, it understandably evolved as a response to a number of obscenely excessive damage awards, particularly in the area of medical malpractice. However, when it comes to school bus crossing safety, the so-called “precious cargo” of our community residing in these states is left to the concern, generosity and, frankly, decency of individuals within their respective pupil transportation communities. But when they chose to not exercise any of the appropriate responsibilities, they are immune from doing so by virtue of the legal tenets of their environment.

Publications: School Transportation News.