Passenger Molestation and Assault

Almost astonishing to most attorneys, passenger molestation — by either the driver or a fellow-passenger — is one of the most common incident scenarios! Because it never occurs in a vehicle equipped with interior video cameras, proving that the defendant was negligent (whether the passenger was molested by the driver or another passenger) is extremely difficult unless the plaintiff’s counsel has an expert skilled and experienced in the operating function known as monitoring, as well as knowing the intricacies of those modes on which this type of incident occurs. As an example, poor scheduling, high “no-show” and late-cancellation rates, and policies against plugging up or noticing gaping holes in schedules enable drivers considerable flexibility to engage in all type and manner of illegal activities.

This combination crime-and-tort happens most commonly to passengers who are developmentally disabled, and thus is common mostly to complementary paratransit service, special education school bus service, and general education school bus service (where special education students are transported along with regular students under an approach known as “inclusion”). Inclusion stems from the regulation requiring each child be educated (which includes transportation) in the “least restrictive environment.” As a consequence, a poor mix of students on a school bus, particularly with no attendant on board, can lead to a serious incident — more often, a long series of incidents until one is detected, often by accident.

Transporting several special education junior high school boys with a single developmentally-disabled elementary school girl is a volatile mixture. But so too is the failure to properly monitor a complementary paratransit or special education service’s driver’s every move. One would think (and be wrong about it) that such crimes/torts would be lessened as technology increases. But just the opposite has happened: Gradually losing the “feel” for operations that a good dispatcher would otherwise develop, whereby he or she could sense the slightest deviation in a driver’s performance or a vehicle’s movement simply by checking in with the driver occasionally, knowing his or her passengers, or knowing where the vehicle is at a given time compared to where it is supposed to be, today’s dispatchers commonly follow the movement of small red dots on a screen (the vehicles are outfitted with automatic vehicle locators, or “AVLs” to track them), but so overwhelmed by its monotony, the performance of countless other digital tasks, and their combined distancing of the dispatcher from operating reality, that they fail to notice the implications of an abstract aberration like one red dot not changing position (between stops) for a significant period of time. Regardless, these scenarios stem from a combination of errors and omissions including negligent monitoring, negligent dispatching, negligent assignment of attendants, and negligent “client-mixing” — while none of these functions would need to be performed properly if only the vehicle had had a video camera installed, which most perpetrators eventually testify would have deterred them from committing the act.

Assaults are surprisingly rare on public transportation, yet when they occur, drivers seem inept at handling them, often choosing to simply watch the action rather than summon dispatch to call law enforcement officials or open the doors and shut off the engine.