INTRODUCTION

It should come as no surprise to transit professionals that the number of law suits and the size of damage awards are growing faster than ridership. At a conference in August, 1999, one insurance official claimed his Company’s pay-outs for transportation clients were 15% above premiums. According to a Transportation Research Board report on the subject, “…the number and amount of personal injury recoveries against public transit operators continue to run higher than can be accommodated within the confines of public budgets and rider fees.”(1)

Sociological factors may help to explain these trends. But they have their roots largely in the fact that the United States is the only country in the World where the loser of a civil suit does not pay the winner’s legal expenses. Yet this has been true for some time. Why, suddenly, are law suits such a serious problem? Is transit service becoming less safe? Are plaintiffs’ attorneys becoming more clever or better prepared? Are judges and juries becoming more impressionable? Are standards becoming higher? What else has changed?

While it is impossible to answer such specific questions, two characteristics of typical legal defenses do much to explain them:

1. The defense process is often mismanaged and misdirected; when effective, it is often because the plaintiff’s efforts are less effective.
2. The defense structure is unrealistic and often counterproductive.

These are bold claims from a technical expert who is neither an attorney nor an insurance industry official. But, as this author’s work on more than 30 accident cases demonstrates, these claims make inordinate sense from the perspective of a transportation industry professional – a perspective which plays a surprisingly small role in the litigation of public transportation-related accident cases. Transit professionals should be genuinely disturbed by the observations and conclusions which follow. At the same time, the industry can make a broad range of changes to address these shortcomings – both before accidents occur and afterwards. Many of these changes are discussed below.

LIABILITY AND NEGLIGENCE

How many times has one heard, “Well, if there was an accident, somebody must have done something wrong.” Right? Wrong. The word “accident” is still in the dictionary. Unfortunately, this is not a persuasive argument to a jury. Its surprising how many people feel “there’s no such thing as an accident” the moment they’re sworn in.

As a practical matter in a civil case, the defendant is often perceived as negligent until proven otherwise – even though the burden of proof lies with the plaintiff. In this environment, a plaintiff’s attorney may simply need the jury to feel sorry for the victim. Jurors may view a damage award as an “adjustment,” something to “make things right.” After all, “Some big insurance company or public agency is paying, correct?” These sensibilities make an accident defense difficult even when no negligence was involved.

As a legal principal, one is not liable merely because an accident occurs. Two other things must also happen – at least theoretically:

1. There must be negligence (i.e., errors and omissions)
2. It must be related to the injury (i.e., proximate cause)

The facts supporting, and perceptions of, these two requirements govern the likely outcome of the case, as well as trial and settlement strategies. In a perfect world, both requirements would have to be met. But in American civil courts, this is hardly necessary. Sometimes plaintiffs’ experts “paint a picture” of the defendant’s vehicle or system as negligent apart from factors related to the accident. If jurors agree, they are more likely to believe the claims even if the plaintiff doesn’t establish any linkage between the negligence and the accident. Or they may “find for” the plaintiff simply because they feel the defendant is negligent in general. Unlike criminal trials, civil court judges generally overturn verdicts only when the findings are outrageous (or the damage awards excessive or prohibited by statute). Under these circumstances, defendants don’t win just because there was no negligence: They must prove it conclusively – or prove that whatever negligence occurred didn’t cause the accident.

As a practical matter, the defendant often has the burden of proof in a civil case. Within such an environment, the quality of the defense effort may be more important than the absence or scarcity of negligence. Not surprisingly, many defenses fail not because no negligence is committed, but because the defendant fails to make as persuasive a case as the plaintiff. In one case, not only did the defendant commit no errors or omissions, but this expert found more than 40 of them on the part of co-defendants. The attorney was overwhelmed by the case’s complexity, and the degree and variety of negligence. Against the expert’s advise, he settled out for $1.1 million. Having a great vehicle or system may not be enough: One must also present a great accident defense.

FRIVOLOUS SUITS AND SENDING MESSAGES

Everyone has seen plaintiffs’ summations on T.V. and in movies. Zealous attorneys (usually good actors) convince jurors (usually bad actors) to make a large award to “send a message.” (One might wonder: “To whom: More attorneys??”) Good plaintiffs’ experts advise their attorneys that juries are increasingly intolerant of negligence as it moves up the management hierarchy – and tend to increase damage awards proportionately. Jurors can understand how a driver may make an error. They are less forgiving of a supervisor or trainer. Still less of planning staff. And God help the defendant whose negligence resulted from a policy decision. It is mystifying why defendants continually refuse to acknowledge obvious driver errors – and pay for it in bigger judgments or settlements when the plaintiffs’ experts expose layers of negligence “higher up.”

There is a caveat to this, of course: In many states and jurisdictions, statutes grant transit agencies types and degrees of immunity – generally where the negligence involved planning and system design, but rarely when it involved their implementation (i.e., “operations”). In one recent case, the bus driver made a non-designated stop on the wrong side of an intersection, forward of the pedestrian crosswalk, and several feet away from a badly splintered curb. The plaintiff’s expert began his deposition by praising the agency’s Planning Department for its impeccable stop design and placement decisions at the intersection.

Even where an agency enjoys a great deal of immunity, this protection appears to matter significantly only where huge awards would otherwise be made. In most cases, the impacts of immunity are marginal – largely because most plaintiffs’ efforts focus on operating errors and omissions rather than those made at the planning or system design level. This is partly because operating errors are more easily identifiable (by plaintiffs as well as their attorneys), but also because most plaintiffs’ attorneys don’t remotely understand planning or system design. According to the Transportation Research Board,(2) a survey of 40 transit agencies found that tort liability payments in agencies with no immunity comprised 7.01 percent of farebox revenue, while those of agencies with total or partial immunity constituted 4.19 percent. (These figures were skewed by the relatively small sample, and by the fact that, obviously, the farebox recovery ratios of the agencies in the sample varied.) Immunity is not the key variable in pay-outs. The key factors are having fewer (and less serious) accidents, committing or omitting fewer negligent acts (i.e., having a stronger case), and presenting better arguments (i.e., having a better defense than the opponent’s offense).

Because attorneys pay no penalties for losing in our legal system, many law suits are filed when the accident involves no negligence at all. Because judges rarely understand public transportation, a large number of these frivolous cases get to court. Several years ago, a paratransit operator was sued because a passenger’s electric wheelchair rolled off the lift platform. This was nonsense from the outset: Electric wheelchairs don’t roll! But this did not stop the defendant’s expert from having to spend weeks rebutting this and a litany of equally spurious claims.

Defense attorneys have procedural mechanisms, such as Motions for Dismissal, available to halt or stymie such suits. But these remedies are less and less available as suits unfold. Many defendants’ attorneys miss these opportunities because they either do not enlist technical support at all or engage it too late. But plaintiffs attorneys are usually worse. In a recent case, a developmentally disabled passenger was molested in a small van by the only other passenger on board; the driver didn’t even notice. The defendant’s Motion for Summary Judgment was granted: Instead of raising issues like monitoring and supervision, plaintiff’s counsel claimed the non-conforming van should have contained a “school bus type” mirror. The defendant simply presented evidence that mirrors of this type could not be mounted in the van.

Consulting and testifying experts are rarely engaged at the beginning of a case. Typically, they are engaged as a measure of desperation. Not only is the trail often cold, but Discovery is closed – blocking access to dozens of documents that might have been valuable. Public sector defendants are at a distinct disadvantage in this respect since Discovery remains open until practically the end of the litigation process. The cut-off time for plaintiffs (who obviously have far less documentation) is generally much earlier.

The reluctant use of technical experts is all the more mystifying in the context whereby few accident cases rely on case law issues apart from the most rudimentary. In one case where it was invoked, a developmentally disabled plaintiff was raped by her paratransit driver. The defendants’ strategy was to claim that the driver was an “Independent Contractor” and, as a result, neither the lead nor operating agency had any control over him!

PATTERNS OF NEGLIGENCE AND THEIR CONSEQUENCES

Examining accidents also provides insights into preventing them. In dozens of transit, paratransit, school bus and motor coach accidents of all types, a mere handful of themes appear common to a great many accidents. Among the most frequent are:

• Loading and unloading
• Crossing the street
• Passenger security
• Standees
• Passenger securement to wheelchairs
• Adherence to stops, stop locations in the intersection, and bus positioning with respect to the curb

The sampling of cases in which this author was involved included:

• Two cases where a passenger or pedestrian was crushed beneath the rear wheels
• Six cases where passengers (five were schoolchildren) were killed or maimed crossing in front or back of the bus
• Three cases where mentally retarded or emotionally disturbed paratransit passengers were raped or sodomized
• Two cases where a obese wheelchair occupant was not properly secured to her chair
• Two cases where an elderly standee was thrown forward or sideward when the bus stopped short or turned too quickly
• Three cases where a passenger was discharged at the wrong stop location (and in two of these cases, several feet from the curb)

While some tort cases indeed involve no negligence, many involve literally dozens of errors and omissions. Often, certain pairs or groups of errors or omissions appear to work in concert to cause the accidents:

• Overloading the vehicle’s suspension system and violating Priority Treatment requirements
• Policies or practices which encourage maximum loads on routes where running times exceed cycle times
• School-age riders on routes whose drivers have only generic transit training
• Developmentally disabled paratransit passengers and service concepts which defy or inhibit monitoring
• Computer-generated paratransit schedules with no monitoring to determine whether or not the drivers actually follow them

One common occurrence – crossing accidents involving schoolchildren – involves an unusual range of technical issues (transportation policies and procedures, planning, route design, stop location and bus positioning, operations, training, etc.), and illustrates the degree to which lead and operating agencies are vulnerable to the practices and whims of our legal system. These accidents are so frequent, and their lessons so complex, that APTA is currently engaged in a special effort to examine them. Regrettably, this author’s experiences often demonstrate far more about the importance of expert consulting work than they do about the accidents themselves – a point made earlier. Among the sample of cases generating this analysis:

• A transit agency had a case dismissed where the plaintiff – a pedestrian not even intending to board – selected the front of a transit bus as a safe place to cross an intersection.
• Another transit agency settled a huge case for practically nothing where a passenger jumped off a transit bus and ran into the street in front of it.
• A school district was sued where a student ran in front of the school bus.
• Another plaintiff sued a school district where the passenger crossed to the rear of a school bus.
• In one case, a student alighted from, and dashed in front of, a transit bus, and the plaintiff is suing the school district (as well as the transit agency).

In all five of these accidents, not only was the plaintiff not struck by the bus but, in four of them, the bus was not even moving when the accident occurred. What makes this issue so difficult is that students are taught to cross in front of a school bus while they are generally required (but rarely taught) to cross in the rear of a transit bus (except when it is stopped in the near side of a signalized intersection). In all three transit cases, the victim apparently did not recognize this difference. While both the pupil transportation and transit communities are wrestling with this problem in their own ways, our legal system is twisting it to almost surrealistic proportions: K-2 students have enough trouble remembering to cross in front of their school buses as it is. But if the plaintiff in one of these cases has his way, kindergartners will suddenly have to be taught to first decide (a) which kind of a bus they just got off (i.e., school bus or transit) and then, (b) what kind of crossing goes with that kind of bus. With a bad ruling on this case, both transit districts and school boards may be forced to endanger their passengers in order to reduce their liability. This is hardly a wise or fair trade-off.

BAD PRACTICES AND WORSE RESULTS

It would be misleading to insist that every case needs a consulting expert (who may or may not serve as a testifying expert). But it is continually surprising to find that opposing counsels in so many cases don’t employ them at all. Attorneys for some transit districts claim they have never employed an expert. Far more disturbing is the practice many defendants’ attorneys have of not consulting even their own clients! With the range and depth of expertise available in-house within most transit agencies, this practice is nothing short of astonishing.

Failing to consult staff is also costly. In one case where the transit agency’s attorney assembled an entire team of planners, engineers, managers, trainers and supervisors – all of whom met with the expert to make sure they were “on the same page” – she settled the case for five hundred dollars. (The expert was careful not to instruct, teach, train or coach them. But these individuals did discuss some technical issues they should be prepared to testify about.) As in most things, an individual is no match for a team. And while most attorneys can run rings around transportation experts in matters of legal procedure, they are no match for them when it comes to the substance of the case. In one paratransit case, opposing counsel found herself in a debate with this author about schedule-building. In their zeal to debate the opponent’s experts, many attorneys toss them into the briar patch.

Apart from underestimating or misunderstanding the value of technical expertise, attorneys on both sides commonly engage in practices which cumulatively lessen their chances of success:

• Failing to let the case expand before it focuses on the findings
• Relying on dysfunctional clichés (“I believe in the ‘KISS’ principle: Keep it simple, stupid;” “What’s the bottom line?” Or [my favorite], “We’re all over the board.”)
• Waiting until the last possible moment to engage technical help
• Limiting the scope of technical experts, either for financial reasons or philosophical/strategic ones (e.g., “I want to use you for…”)
• Failing to understand the difference between analysis and reconstruction
• Believing that intellect is more valuable than knowledge
• Believing that knowledge is more valuable than perspective
• Believing that testimony is more important than analysis

The last four points are worthy of special comment:

• Analysis versus reconstruction is not a choice: Many accident cases require both disciplines. However, many attorneys hire a ”reconstructionist” to measure the skid marks and photograph the accident scene, while they conduct the analysis themselves. In many transportation cases, there are far more errors and omissions in policy-making, planning and system design than in driver error or vehicle failure. Viewed without the complete context, what emerges from interrogatories, depositions and Discovery is often mere dust on the surface of the proverbial iceberg.
• Its surprising how many attorneys think intelligence is of such enormous value that they treat preparation as a secondary consideration. On occasion, experts have to argue passionately to “read into” a case. They are rarely invited to review the “moving papers.” On occasion, they must plead to examine the accident scene. The most troubling implication of this perception is that it suggests that the elements of the case itself are of little importance. Even more troubling is the fact that, given our legal system and the extraordinary disparity in expertise and approaches among attorneys and experts, this perception may, in many cases, be valid.
• It is also surprising how preoccupied many attorneys are with an expert’s credentials. In one recent case, both the plaintiff’s expert and one defendant’s engineering expert had doctoral degrees. Yet both described centrifugal force as a function of turning speed (it is a function of acceleration multiplied by the degree of arc). And neither (nor anyone else) noticed that one of the three passengers thrown through the bus’ closed rear door was seated on the opposite side of the aisle. Realizing that the “theory of the case” (the door was defective) was nonsense, this expert uncovered more than 40 other acts of negligence – most of which were related to the accident. What you see is clearly more important than what you know.
• Finally, in the more than 30 accident cases used for this analysis, this expert was deposed only six times, and testified only twice. Why, then, are such individuals contacted as an “expert witness?” By the time a case reaches the trial stage, expert testimony is often superfluous; cases are usually won, lost or (in particular) settled long before this point. Perhaps one can blame television and film for concealing the expert witness’ primary importance. But, clearly, the most valuable service an “expert witness” can render is pre-trial analysis. Once one figures out what happened, and who (if anyone) was negligent, all that is left is the task of presenting it. Admissions elicited from cross-examination are far more compelling than those made by an “expert.” Often, drivers and mechanics are more convincing than “experts.” The expert’s real job is to provide the attorney with the tools to try the case. Attorneys may sometimes require expert testimony. But what they almost always need is technical knowledge and perspective.

One last frustrating problem for experts is not having a say in the extent of their investigation. Realistically, requests to “do more” may be perceived as requests to “bill more hours.” In truth, one can usually find out what happened in most accidents relatively easily. But good experts don’t want to stop here: They want to know why. This is usually worth the trouble:

• In one recent case, the reason a motor coach driver dumped his passengers off underneath an icy canopy in the middle of an entranceway was that this positioning made it more convenient for him to unload their luggage.
• In another, not only was the exterior mirror the plaintiff walked into not what the coach owner ordered, but the door was not what he ordered. In fact, the manufacturer’s Quality Assurance process “caught” both, but made no effort to change them. The expert never did figure out why the operator never bothered to tuck the mirror in: After the manufacturer kicked in several hundred thousand dollars, the operator settled for almost a million.

INVERTED STRUCTURE OF DEFENSE EFFORTS

Establishing a defense effort traditionally involves one or two basic steps:

1. The insurance company or legal counsel selects or assigns an attorney
2. The attorney (maybe) selects an expert witness

Some experts try to persuade attorneys to also meet with the operator’s or manufacturer’s decision-makers, management and staff. (They rarely do.) In fact, most attorneys do not even retain expert witnesses. This means that the case is not only presented in an environment with enormous latitude, but is coordinated by someone not even in the field, and who receives no technical help! No wonder damage awards are so large, and so frequent – even when negligence is minimal or non-existent.

In contrast, many defendants would be far better served if:

1. The defendant selected the expert witness
2. The expert witness selected the attorney
3. The attorney and expert consulted the defendant’s management and staff

Why is this approach rarely if ever taken? (Tradition?)

FINAL COMMENTS

It is also not surprising that many (or most) of the errors and omissions one finds through accident analysis could just as easily have been discovered in a safety and performance analysis. Such an analysis would cost a fraction as much as an accident defense – much less a damage award. It would also identify performance problems – some of which also increase exposure (particularly in paratransit operations). And most expert witnesses who are also consultants charge considerably less for the latter. A gram of prevention is often worth a kilogram of cure. While not always the case, “accidents” usually happen for reasons – often many strung together. Subtract a few links from a chain of problems, and those which remain may not be sufficient to cause an accident.

Some attorneys are smarter than others. And the range of charisma is vast. But differences in intelligence and inspiration are not key factors. What matters most are approach and effort. All things being equal, a brilliant attorney with the wrong approach and a moderate effort will usually succumb to a mediocre attorney with the right approach and a thorough effort. Regardless, the single most important rule for a defendant in an accident case is to make sure your attorney’s approach and effort include you.

ACKNOWLEDGEMENTS AND DISCLAIMERS

The views expressed in this paper are exclusively those of the author, and in no way reflect those of the American Public Transportation Association or any of its other members.

ENDNOTES

1. “State Limitations on Tort Liability of Public Transit Operations.” Transit
   Cooperative Research Program: Legal Research Digest, December, 1994—Number 3, p. 1.
2. “State Limitations on Tort Liability of Public Transit Operations.” Transit
   Cooperative Research Program: Legal Research Digest, December, 1994—Number 3, p. 3)