Safety Compromises: Part 1, Introduction

This new National Bus Trader piece is the first installment of likely a year-long series about types of incidents that result from trade-offs of safety for other benefits -- adherence to unrealistically-tight schedules (or drivers running behind schedule) being the principal culprit. Frankly, of the more than 600 public transportation-related lawsuits in which I have served as an expert witness, roughly half of all incidents see to be the result of some deliberate safety compromise.

Because the characteristics, operating environments, duty cycles and dynamics of every public transportation mode differ, it follows that each mode contains different safety compromises. But some clearly have more than others. As an example, wheelchair tipovers are common to complementary paratransit service, almost a central theme of many fixed route transit systems, and endemic to many non-emergency medical transportation (NEMT) services -- especially when "brokers" are engaged to manage the actual service providers (at least in theory). In contrast, such compromises are rare in most motorcoach sectors. The obvious exception is commuter/express service, almost always provided under contract to a transit agency (which often owns the vehicles and determines the schedules).

Recently, I actually created a website initiative (safetycompromises.com) treating nine of the most typical of these compromises:

• On-board slips and falls
• wheelchair and passenger securement
• speeding
• failure to kneel the bus or coach
• pulling adjacent to the curb
• stopping on the wrong side of the intersection
• boarding and alighting accidents and incidents
• rolling turns and sharp turns
• passenger assistance standards, practices and disincentives

For readers wanting still more information about a few of the most salient compromises, they may wish to check out some of my more-targeted website initiatives: crossingaccidents.com, turning accidents.com or wheelchairtipovers.com). Frankly, finding a wheelchair properly secured on a transit bus or NEMT vehicle (much less properly), and its occupant secured into that chair, is a rarity. The fact that these sectors and their insurance carriers are not overwhelmed by lawsuits from these incidents merely reflects the tendency of many or most American attorneys to quickly settle cases for a fraction of their value if they can do so by spending precious little time working on them. Telling their clients why they should accept the handful of magic beans offered as a settlement is the easy part. Plus, every incident does not result in an injury. And it is usually hard to find an attorney to represent someone suffering only a minor injury. All these factors tend to keep the number of lawsuits down, their pay-outs small to moderate, and indirectly induce public transportation providers to trade off aspects of passenger safety for other benefits -- i.e., to make safety compromises.

Compromises by Mode

A number of factors affect the compromises common to various modes. While the reader can learn much about this from the websites listed above, quick snapshots of the most salient points will be covered in future installments about the nine compromises noted. The multiple factors affecting them cover a broad latitude of system characteristics and operating dynamics ranging from financial constraints, political demands, sparsity of regulations, visibility (especially by the media and press), constituencies (e.g., parents of schoolchildren are far more concerned with safety issues than are transit riders) and subpar deterrence from poor litigation, among others. One huge factor applicable to all of them is the passengers' and general public's marginal understanding of safety, and/or the lack of concern about it. This reality helps to explain how transportation network companies (e.g., Uber, Lyft, Sidecar, Gett, Vio, etc.) were able to attract riders so quickly, when they have virtually none of the components that traditionally render public transportation safe (e.g., monitoring, enforcement, maintenance, scheduling, dispatching and other management) and which can at least influence some degree of compliance with regulations (like the requirement for drivers to conduct pre- and post-trip inspections). And while passenger rail safety is not influenced by any of the compromises listed above, our broad technical ignorance helps to explain our apathy toward an inexcusable spate of derailments -- including some that stem simply from broken or uneven track sections. (Others stem from the disappearance of technologies (e.g., flag men, dead man's switches) that limited derailments nearly two centuries ago by detecting excessive speeds around curves to sharp to accommodate those speeds.)

Beyond the list of compromises above, as National Bus Trader is largely a motorcoach magazine, I expect to also explore the failure (if not the illusion) of fatigue management, as a principal compromise made most typically by many motorcoach companies, large and small. Otherwise, other than motorcoaches deployed, by transit agencies in commuter/express service, the motorcoach sector experiences a much small number of those safety compromises cited above compared to the transit, paratransit and NEMT sectors, where safety compromises are rampant. (As an expert, I've done at least 90 crossing cases, and between 90 and 130 wheelchair cases -- few involving motorcoaches.) And frankly, the promise of autonomous vehicles will (or should) define fatigue out of existence. So as safe as motorcoach service already is (compared to automobiles, most significantly), this mode of transportation will, in many respects, become even more safe in the future when this particular safety compromise is defined out of existence. Of course, if and when autonomous motorcoaches are still involved in incidents, one can always argue that the replacement of drivers with robots was an obvious safety compromise. However, the comparison of precision in accident data from driver-operated versus autonomous motorcoaches will likely make such accusations challenging -- at least until years of experience with volumes of autonomous motorcoaches operating on our roadways have yielded a significant volume of data. In the meantime, autonomous motorcoaches may enjoy a hiatus from accountability, as proving liability may be difficult, given the track record of live drivers.

As a final comment about motorcoach incidents, it is unlikely that automating them will affect certain incident scenarios. An obvious example involves passengers falling up or down the stepwell -- where the absence of a driver at the base of one is clearly a safety compromise. Less obvious will be on-board slips and falls, since robots will not make choices about schedules.

Legal Subpractice

It would be unfair to generalize that the failure to handsomely settle a lawsuit involving a safety compromise automatically represents malpractice. Truthfully, few plaintiff's attorneys engage, much less listen to, experts like myself who are familiar with both the range and diversity of safety compromises, who understand the spectrum of strategies that can leverage huge settlements from defendants and/or their insurance carriers, but who suggest that a reasonable amount of work will need to be done in order to accomplish this goal. But those attorneys willing to exploit the opportunities of a case involving a safety compromise often reach the end of the rainbow, and capture a small pot of gold. Given the chance, I can usually convince a court that a safety compromise was deliberate, and often malicious (given the financial or other objectives generally achieved as a result). For such defendants, the threat of remedies like injunctive relief are powerful tools. For example, a judge ordering a transit agency to add even a single bus to a route (to make the schedules less tight) would create a template for virtually every plaintiff's attorney in the system's service area whose client is injured on or by that agency's vehicles, since many transit schedules are universally too tight, particularly during the AM and PM periods (where scheduling personnel are either too stupid to loosen the schedules, or not allowed to do so for financial/political reasons). In some large urban areas, schedules are so tight that the mere concept of a schedule (as represented on the printed documents distributed to passengers, or available on the system's website) breaks down completely during the AM and PM peak periods (and in some large systems, long before the PM period begins).

In certain venues, the threat of such relief is far more ripe than in others. For example, in BRU v. LACMTA (a 1999 class action suit in Los Angeles County in which no one was even injured), the judge ordered the transit agency to purchase thirty two hundred additional buses. So a judge in or near that venue is far more likely to order a transit agency to add one more bus to a single route. Near that venue, a few years ago, I had little trouble helping an attorney obtain a settlement several hundred times the value of his client's actual injury (or "damages," in legal terminology) by simply filing for injunctive relief, requesting the judge to order the defendant to add 15% more buses to its 200-bus fleet.

Fortunately for transit agencies, as noted, few plaintiffs' attorneys are willing to engage in such tactics, even where evidence clearly suggests that adding an additional bus would eliminate the condition that caused the incident, and the risk of a judge granting such relief is not remote. This being the case, a single far-sighted attorney could eliminate such safety compromises in his or her venue almost overnight, bringing the defendant to its knees in the process. Realistically, there is little fear that this will happen. At the same time, motorcoaches do not even contain horizontal or vertical stanchions, even while such devices are not even designed for passengers to use to navigate within the vehicle while it is moving. So an on-board slip-and-fall on a motorcoach should be a slam-dunk for an intelligent attorney with a knowledgeable and savvy expert. At the same time, because motorcoach (or any) subcontractors rarely establish the schedules, the principal blame for incidents stemming from this safety compromise would likely lie on the transit agency, or "lead agency," whose management designed the route's schedule, and whose general manager is or should be aware of its tightness.

At the same time, damage allocation formulas differ wildly from state to state: In five states, if the victim is even one percent at fault, the defendants are dismissed. More importantly, most contracts require the contractor to indemnify the "lead agency." So in the other 45 states, the defendant who pays for the underlying causation of such incidents, not the transit agency (usually self-ensured at a level to easily cover the damages of such incident scenarios) is its private subcontractor, or that subcontractor's insurance carrier.

Risks and Realities

The example of a motorcoach operating on a tight schedule in computer/express service is an excellent illustration of the pitfalls our industry faces, particularly as our economy shrinks, and more and more public services are contracted out, competitively, to save money. As a financial reality, transit agencies are "strapped for cash" in a society with a regressive tax structure, whose elected officials operate under considerable pressure to provide enough capacity to accommodate those wishing to use public transportation services. The effort to accomplish this goal with sufficient coverage and frequency of service typically translates into safety compromises. But our legal system does not respect such realities. Nor should it, in my opinion. So woe is the defendant who argues otherwise.

Further, most if not all public transportation services are "common carriers," held to the highest standard and duty of care in every state. Passengers are not expected to take many risks. In California, 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 it would seem unlikely that a schoolbus or NEMT service would not be held to the same standards, in any state, even while the basic criteria for ridership on these modes does not mirror the typical qualifying language establishing the common carrier principle: The service is available to the general public, and the passenger pays a fare. The fact that many otherwise identical charter and tour trips differ only in these two ways provides an illustration of how tiny any loophole relying upon this definition is likely to be.

As noted, the risks of both private companies and public agencies (many of the latter enjoy limits on the damages they must pay out as a form of "public immunity") are somewhat slim only because our nation is infested with less than zealous plaintiff's attorneys. But the defendant of an incident resulting from a safety compromise whose victim's attorney is an exception to this rule, and who is aided by an expert who understands the characteristics of the mode-in-question, is in for a rough ride, and generally some bad news along the way.

The point is that the risks created by safety compromises can almost always be avoided by the defendant(s) by simply not making the compromise. Further, such risks are often made as a policy matter by one codefendant or another, and usually involve deliberate trade-offs that the defendants are willing to make at the passengers' expense in exchange for other benefits.

With a compromised legal system, one rarely reaps what one sows. But when exceptions to this reality occur, a handful of magic beans will usually not do as a settlement. And "Fe, Fi, Fo, Fum" will not likely be a persuasive argument for the defendant.