The Documentation Dilemma: Challenges and Failures by Small Operating Companies

While motorcoach drivers may not possess the status or formal authority of pilots, ship captains or train conductors, their knowledge, skill, wisdom, judgment and perception have been every bit as critical to the industry’s safety record as have been the capabilities of their air, sea or rail counterparts. Largely with this expertise, the number of small motorcoach businesses had been expanding – at least until September 11th. Among other dynamics, however, the U.S. legal system is slowing reversing this trend. A paramount reason is the exaggerated linkage among safety, liability and written documentation.

At least as an excuse, one caveat of the motorcoach industry’s deregulation was the belief (or perhaps the hope) that the small, competitive companies that emerged would at least provide safe service. However, the increasing frequency and nature of civil litigation is distorting the genuine distinction between the safety of larger compared to smaller operators. This is not so much because smaller operators do not possess, or cannot afford to develop, the equivalent expertise in safety. Rather, it is because, at their relative diseconomies of scale, they cannot afford to translate policies and procedures into the level of written documentation that Today’s litigation environment increasingly demands. At least indirectly, less documentation is beginning to translate into higher insurance premiums.

Live Earthlings

As recently as two decades ago, the presence of knowledgeable local management has accounted for much of the excellence of virtually every service, including transportation. But mid-level management is gradually being reduced by the competitive forces of modern business and the relentless efforts to modern American government to exaggerate them. In small transportation operations, one cost of this consolidation is that smaller companies increasingly cannot afford the cost of preparing volumes of written policy and training documents. If such dynamics only squeezed the unsafe companies out of existence, I would not raise these issues or write this column. However, my experiences as a forensic expert suggest this is not remotely the case.

Hands On, Gloves Off

During a decade in operations, my 70-vehicle paratransit fleet was involved in only a single serious collision (a vehicle striking a pole). While a spectrum of management practices contributed to this record, three of the most significant were (1) daily log review, (2) progressive driver assignment, and (3) ongoing onboard supervision (a third of our vehicles had attendants, whose assignments were continuously modified to facilitate monitoring, evaluation and supervision, among other goals). All three practices are a rarity in any sector of Today’s public transportation industry.

One of the features of my operation which these three practices made possible was a minimization of paperwork to which drivers were subjected. We never created nor even borrowed a Driver’s Manual. Training and monitoring were so deliberately intertwined that they were almost redundant. As a consequence, we did not flawlessly record every remote episode of driver accountability such as the “receipt” of documentation or the “verification” that a particular driver reviewed it. Nor did we flood drivers with bulletins, notices, fliers or memoranda. Instead, safety principles were continually reinforced by the efforts of a carefully directed, focused and thick management hierarchy.

While the value of sound operating concepts appears almost intuitive, they might not hold up well in Today’s litigation environment irrespective of the company’s safety record. Instead, the absence of a profusion of training documents is often used to imply negligence – when it is not used to literally equate their sparcity with negligence. Further, in the absence of sound hands-on management, the absence of documentation induces many incident victims attorneys to “take off the gloves.” The problem is, of course, that they sometimes replace them with mittens. Equating a volume of documentation with safety can facilitate this sleight-of-hand.

In truth, public transportation defendants routinely hide behind the fuzzy, often indefinable shield of on-the-road training. Few drivers can articulate many of its specifics. Similarly, few of its rudiments are often written down. So plaintiffs’ attorneys and their experts may have difficulty criticizing its deficiencies and omissions. With this ambiguity, however, the importance of ample (note that I did not say sufficient) written documentation can be telling.

Leveling the Playing Field

For many of these reasons, I consider the current efforts of the ABA Bus Industry Safety Committee to develop a training program for Safety Directors to comprise not only an important breakthrough, but one of this decade’s most significant achievements in the motorcoach industry – at least so far. My hat goes off to the many large and mega-carriers which, in the interests of motorcoach safety, have participated in this document’s preparation, when its development clearly lies counter to their competitive interests. But this is not just a proud moment. It is a sign that we are beginning to think and act more like a community than an industry. Other evidence of this sensibility is reflected by the two articles about fatigue found in this issue of NBT submitted by a major underwriter – a similar altruistic investment since its clients can always switch carriers to one simply charging lower premiums. Particularly in the wake of September 11th, the evolution from an industry to a community is not a mere nuance. Such a transformation is critical to our survival.

Help or no help, the need for extensive written documentation has become a necessity as a practical matter. Frankly, I would not argue that it categorically improves safety, much less in comparison to more and more-qualified staff and/or principles of sound management like those cited above. But all things being equal, more and better documentation probably yields a safer and sounder system than does little or no documentation. This is certainly true if what you get is what you see.

During a junior high school book review lesson, I was once accused of choosing books by weight. Guilty as charged. But this accusation taught me a great deal. In Today’s litigation environment, more is generally better. Of greater importance, less may lead to serious risks and serious problems. Woe is the defendant whose career driver’s personnel file looks like it could be mailed with a 37-cent stamp.

Publications: National Bus Trader.