Sometimes the reasons drivers do not secure wheelchairs is simple to understand (usually the schedules are tight, and their conduct is not monitored.) Otherwise, the reasons may seem obscure. But yet they matter as much. And the most brilliant lawyer would never think of it. And I mean never. A bit of quick history before revealing the secrets.
In 2002, I redesigned the State of Rhode Island’s paratransit system, where the State’s statewide transit agency, RIPTA, was both the broker and one of the 11 service providers. First I had to redesign their system, which was effectively based on nothing, and driven largely by politics, I knew this State pretty well (most of my remaining family lives there). So I reduced this small state’s service areas from 11 to six, crafted an RFP for service providers, and conducted the “Pre-Bid Conference.” Some of the attendees realized that the reduction in service areas would leave them out, and they created a political firestorm with the Governor’s Office and state assemblymen and assemblywomen. (Keep in mind in a Democracy, the “payoffs” come when someone buys 10 seats at a state assemblyperson’s rubber-chicken lunch for $10,000, and effectively buys that elected official’s allegiance to their lies.) Anyway, when the fire died down, I created an evaluation scale for evaluating the bids – and I limited RIPTA (again, the state-wide transit system, but one of the existing 11 service providers) to no more than three of the six service areas. With far more proposal-writing experience than most of the other mostly knowledge-proof service providers, RIPTA won three of the six bids. Then things became interesting.
RIPTA was also the broker. So it could not negotiate a contract with itself. So I served as a proxy for RIPTA the broker and negotiated with RIPTA officials as service providers (the group included the Manager of Paratransit Services and RIPTA’s General Manager). In a long and cordial negotiation, we hit upon two stumbling blocks – including two things that I grew to realize were of great importance, but which my own former paratransit company, two decades earlier, did not even require its drivers to do. So, with RIPTA as a service provider:
- I wanted a driver of every vehicle (their vehicles typically changed from day to day), every Friday, to wipe down all the seats.
- I wanted the drivers to wear knee pads.
Reasons for the first of these conditions actually emerged a few years later with the recognition of “blood borne pathogens.” So by 2010 or so, one found this important issue in most paratransit training manuals. But I have always been ahead of the curve in this sector. So in 2002, RIPTA’s Union forbid this because its drivers had no “collective-bargaining duties” to clean anything (including sweeping out the hex tracks in the securement areas of all the vehicles). So they claimed that they would have to hire four additional workers in order to meet this requirement, and as a result, they would have to increase the rate on their bids. As RIPTA agreed to almost everything else in the Contract I wrote, I let this go rather than turn the negotiations into a contractual nightmare.
RIPTA’s union also refused my second condition – the main point of this article – because its drivers felt humiliated by having to wear kneepads. (Keep in mind all the dirty jokes about knee pads during the Monica Lewinsky scandal; in the 1990s, during the Clinton Administration.) I was more forceful about this.
This provision was of particular importance in paratransit systems since they transported many wheelchairs. And to attach the “tie-downs” to some part of every chair (depending on where it was positioned), driver had to crawl around on their knees. And at that period in our history, most flooring was RCA “ribbed rubber” flooring (not the smooth “non-skid” flooring one finds on most vehicles today). So a driver transporting multiple wheelchair users every day spent a lot of time badly bruising his or her knees. And this tended to discourage many drivers from either securing a wheelchair at all, or from securing even some parts of it (which was almost as bad and could not stop a tipover). During the decade of my own operations – where are drivers were obsessed with the courage of our passengers (another article), and cared deeply about their safety, I noticed drivers increasing beginning to wear knee pads. When they were driving or doing most things, they slid these kneepads down to their calves. When they had to secure a wheelchair, they pulled the pads up to their knees, and crawled around in no pain, no matter how much time they spent on their vehicle’s floor.
As the owner and director of this large operation, I never insisted on this provision. However, failing to secure a wheelchair even a single time – forget about one tipping over, I’m talking about merely failing to secure one – meant immediate, automatic termination. So my drivers either suffered sore knees or increasingly began to wear kneepads.
No matter how hard I bargained for RIPTA’s driver to do this, their union stood fast. (Keep in mind that, like many unions in certain environments, the main goal of unions in transportation is to protect the ”bad apples.” Only taking wheelchair and passenger securement cases on the plaintiff’s side, I have threatened to inflame many a jury when I found the union leverage too strong. Most of those cases settled out; this was another unusual nail in the coffin of a case otherwise impossible to defend.)
Especially for attorneys: If you are a plaintiff’s attorney lucky enough to obtain a wheelchair tipover case, Make sure to obtain multiple sets of drivers’ logs. And make sure to find an expert who understands them – and everything else about this form of transportation. (Few “experts” do, and most are liars, which is all that phonies can do.) But if you are deposing a driver who had a wheelchair tipover, do not fail to initiate this dialog:
Q: “Transporting wheelchair users must be a grueling job, isn’t it?”
A: “It sure is.”
Q: “So I applaud you dedication to this type of work. By the way, you must crawl around on your knees a lot to do this, don’t you?”
A: “You bet.”
Q: “So your knees must be mighty sore are 7 or 8 hours of this, aren’t they?”
A: “Yeah.”
With guidance from the right expert, getting a “yes” answer to this last question can increase the value of the case considerably. You are an attorney. You know how to complete this string of questioning. The right expert will convince you that merely trying to recover the damages is a waste of time. Any third-rate lawyer can win a wheelchair tipover case with a beginner of an expert. You want to forget about the stupid damages. You want to make money on this rare, unlosable case. One way to up the settlement value is to demonstrate that the driver deliberately did not secure the wheelchair. One selfish driver’s sore knees are not a fair tradeoff for your client’s broken neck.
So find out if your defendant’s owner or manager ever suggested that the drivers wear kneepads. But also have someone who know how to examine this vehicle check out the kind of flooring it has. Some flooring is much harder on one’s knees than other flooring. If the flooring is rough, your case will be easier.
One of the most interesting, but obscure reasons why drivers do not secure wheelchairs, is that it hurts to crawl around on a vehicle’s flooring on their knees.
#wheelchairtipovers #wheelchairandpassengersecurement #seatbeltsecurement #transalt #publictransitexpert