Uncommon Carriers: Tow Trucks as Common Carriers

In some lawsuits, both attorneys get the point almost immediately, and the suits settle so quickly that participants like me have to return part of their retainers. Just the same, when such cases proceed to trial, and the plaintiff wins, the technical and/or legal issues involved can have enormous implications, often in areas that may not be apparent. I recently participated as the plaintiff’s expert in just such a case – although its precedent-setting implications were muted by its early settlement:

When an obese woman’s car broke down one hot Summer afternoon, she called her insurance carrier’s emergency number, and a tow truck was quickly dispatched. Once her car was hitched up, she was invited to ride along with the driver to the repair facility. Because of her weight, and the standard OEM configuration of the heavy-duty truck cab’s stepwell, she managed to hoist her right foot up onto the running board roughly two feet off the ground, but could ascend no further. So, pushing on her hips or buttocks with both hands, the driver shoved her onto the vehicle, and grabbing a handrail not otherwise reachable, she managed to plop into her seat.

The tow truck was not in tip-top shape, and its driver had to stop twice to let it “cool down” – effectively turning a 20-minute jaunt into a 90-minute adventure. (With the engine overheating, the driver did not engage the cab’s air conditioning.) Once the truck arrived at the repair facility, the driver alighted and, instead of assisting the passenger out of the cab, instead entered the facility to announce his presence and begin processing some paperwork. When he eventually emerged, he passed by the passenger’s shotgun door, presumably to unhitch her automobile – while she screamed at him through her open window to “let her out,” Trapped inside the scorching-hot cab’s interior (despite its windows open) indefinitely, with no notice of when she would be assisted out of it, the plaintiff had trouble breathing, had to use the restroom badly (she testified that she would soon have relieved herself in her clothing), began feeling sick, and decided it was a lesser risk to alight on her own than to pass out or, at minimum, continue suffering. Somehow managing to turn around inside the dab, the passenger tried to back down the stepwell, and even reached the running board with her right foot. Balancing on this narrow, indented and grease-covered strip on her toes, she slipped, and before her left foot could reach the ground level, she fell out of the cab altogether, breaking both legs and experiencing several other serious injuries.

Tow Trucks and Motorcoaches

Anyone reviewing today’s trade magazines or attending motorcoach or over-the-road trade shows (like the UMA or BUSCON shows) would be struck by the increasing number of “Type C” motorcoaches converted on mostly Freightliner and International chassis where the cab portion of the cutaway lay virtually unchanged from its configuration as part of a freight vehicle. A virile truck driver accustomed to this cab would have little trouble “swinging” up into or down from its shotgun seat. But the same would not be true for a “civilian” not used to it (much less an obese passenger who had never before ridden in such a cab). Particularly for a motorcoach with this configuration, were a regular passenger to use the shotgun seat and experience what the passenger noted above did, the coach’s owner and driver would have few if any sound defenses when the inevitable lawsuit arose: Even if the driver provided the optimum passenger assistance available, the failure to modify the shotgun door’s stepwell to more resemble that of a commercial passenger vehicle might still have contributed to a slip-and-fall that also placed the driver at risk (e.g., the passenger falling on the driver).

Modifying this stepwell would not likely bear much financial baggage: The difference in price between many full-size, Type C, body-on-chassis conversions and integrally-constructed motorcoaches is already between 1:3 and 1:4. So properly configuring a shotgun door’s stepwell would hardly discourage a sale – while, in truth, it might likely enhance it, since this modification could provide one more passenger with an accessible and safe seat.

Uncommon Carriers

Just as body-and-chassis converters of large buses and coaches have not given any thought to this issue, neither have tow trucks. Yet it is intuitive from their usage that, at least during the return trip, the tow truck would function as a passenger vehicle. The excuse that the passenger chose to ride in “the truck” would likely fall short in a courtroom: Often stranded miles from any mode of transportation that could have transported her to the repair facility or anywhere else, what choice would such a victim have had? This reality underscores the point that, riding in the tow truck’s cab is the clear industry standard. In fact, in many or most states (if not all states), it is illegal for the passenger to ride inside his or her car while it is being towed.

Transforming an otherwise truck into a passenger vehicle also bore another important irony: That passenger vehicle would likely be considered as a “common carrier” – whose driver, like the vehicle itself and its owner, would be held to the highest duty and standard of care, rather than the ordinary duty of care to which a simple automobile owner would be held for the transportation of his or her passengers. This is because the tow truck’s return trip met the two most fundamental criteria for defining a common carrier:

  1. It must be available to the general public
  2. The passenger must pay a fare

Since the tow truck would pick up virtually anyone’s car (and transport its passenger in its cab), and as the passenger paid for the towing (the ride to the repair facility simply came with this charge), the tow truck essentially met these criteria. Lest anyone think otherwise, two recent California appellate cases affirmed their respective lower courts’ rulings that an amusement park ride is a common carrier (Gomez v. Superior Court, 2005), and a ski lift is a common carrier (Squaw Valley v. Superior Court, 2005). So a tow truck becoming a common carrier passenger vehicle on its return trip is hardly a stretch. The likelihood that any remote type of passenger transportation vehicle would not be deemed a common carrier is a more far-fetched stretch – even though (a) schoolbuses and (b) motorcoaches deployed in charter service might appear to not meet these criteria, as some defendants have argued (usually unsuccessfully). Regardless, being held to the highest standard and duty of care raises the stakes in a lawsuit considerably, and greatly handicaps the defendant.

More and More, Worse and Worse

As regular readers of my columns in NBT surely know, this is not my first article about stepwell deficiencies. As a forensic expert, a full fifth of all my cases revolve around some form of boarding or alighting incident. So while policy and training emphasis is generally placed on driving, this emphasis is not consistent with or justified by the number of accidents and lawsuits that have nothing whatsoever to do with driving deficiencies and failures.

At the vehicle design and specification levels, and at the operating and training levels, boarding and alighting problems are not merely epidemic, but inexcusably epidemic. Plenty (though hardly all, and possibly not even a majority) of buses have coherent stepwells, with equidistant riser heights, and oblique handrails parallel to the imaginary line drawn through the outer edges of the steps. A truck’s unmodified shotgun stepwell obviously ignores, if not defies, these principles. But the difference between the optimum solution and doing nothing comprises a broad spectrum of opportunities for improvement.

Despite these realities, the stepwells I observe at trade shows actually seem to be getting worse and worse from year to year. There are certain exceptions, of course, and some OEMs and conversion companies actually “get it right” – I am guessing at no greater cost that those whose stepwells are dysfunctional, counterintuitive and dangerous. Not addressing this issue on the tow truck noted above cost its insurance carrier $450,000. Given the number of boarding and alighting incidents that lead to lawsuits, I cannot help thinking that simply designing, producing and installing a coherent stepwell would be a far less costly alternative.

Publications: National Bus Trader.