On this theme, public transportation cases are a field day. Driver shortages are not merely common. They’re practically universal. And their consequences on hiring and retention are relentless and inescapable. Because I could schedule 50% more efficiently than anyone else in the Region, and still far better than software could, I easily won every operating bid during the 10 years of my 70-vehicle paratransit operation, while almost always bidding the highest rate. So, in 1985, for example, our starting salary for a new driver was $7.50/hour — which would likely equate to $30 to $40/hour in Today’s dollars. Yet I was still doing cases in 2011 where experienced drivers were earning less than I paid my “beginners” nearly three decades ago. In other words, gross underpayment is not a characteristic of some transportation systems. It is a firmly-embedded dynamic in most of them. With such dynamics in action, accidents and incidents are certain to follow.
Even where formal hiring processes exist, the elements usually omitted are striking. They include testing for Sleep Apnea (an easily-diagnosed and treatable condition suffered by four percent of our population) and night vision (which deteriorates significantly with age). Rarely are sleep-wakefulness cycles ascertained – although even if they were, driver assignment practices rarely take a driver’s tendencies in this area into consideration (since seniority typically governs driver assignments to various shifts).
Many defendants’ principal criterion for hiring is that the candidate can breathe. Short of committing a series of crimes, many drivers do not get fired no matter what they do. Worse, many defendants are so naïve that they think that failing to discipline a driver, and retaining him or her after a serious incident, much less without any retraining, makes them “look good.” (I call this the “Ostrich Syndrome.”) But it weaves in and out of numerous cases, even though it is usually a secondary tort among the dozens or scores of errors and omissions one generally finds in public transportation cases — if one makes the effort to look.
Pairing underpaid drivers with fatigue is also a common and often deadly combination. Few public transportation agencies or companies monitor what their drivers do when off duty, much less when they sleep. In fact, many hold second jobs — sometimes as drivers. How can not knowing this not be negligent? How can not caring about it not comprise reckless disregard?
