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With panoramic/wraparound windshields lying against the front plane, sun visors, tinted windshields, crossover and parabolic mirror systems, ergonomic driver compartments with tilting/telescopic steering columns and pneumatically-adjustable seats, video surveillance cameras and motion detection sensors - much less corrective lenses, sunglasses, annual vision examinations, and continual improvements in headlamps - one would think that bus drivers could see and react to large objects appearing directly in front of their vehicles. But, as many jurors learn, one would be wrong.

One Eyed Jacks

Two recent incidents make one wonder why vision tests administered to drivers even examine both eyes:

  • A motorcoach driver babysitting his pre-school son during his A.M. shift stored a box of dry cereal on the left corner of the dashboard. Along with the street-side window post and exterior mirror and mounting bracket, the cereal box effectively screened off a significant quadrant of his visibility through the windshield. Turning left onto a four-lane, one-way arterial street which he had to immediately merge cross (in order to then turn right less than a block further), the driver did not notice that he had run over an elderly pedestrian until he felt the proverbial "pop" as the street-side rear tires squished her brain matter through her ears and eye sockets. The pedestrian's belt was found entwined around the rear axle, and a collage of protoplasm and buttons lay stuck to and dripping from various points along the coach's undercarriage.
  • In a similar incident of far less severity, a left-turning bus driver's visibility was impeded by his transit agency's mounting of\C2 a "Clever Device" (a passenger counting technology) in the same cookie-box position - in violation of FMVSS regulations governing viewable windshield clearance area. Fortunately, this driver detected a thud at the front, street side of the bus, glanced immediately at his driver's-side rear-view mirror and, spotting a pedestrian just forward of the street-side rear tires, managed to bring the bus to a complete stop before the tires reached her - although the pedestrian's sprained foot suggests that she either walked or fell into the bus or, as she claimed, the outside tire ran over her foot. To hide evidence of the misplaced passenger-counting device (about which the driver had formally complained), the transit agency classified the accident as "preventable" and suspended the driver for 20 days - pompously presuming that both the driver's disciplinary hearing and its results were "strictly confidential," and that the plaintiff's attorney would either not discover it or could neither obtain nor use its findings in a civil lawsuit.

Flies and Stones

Asked to predict the fate of two prisoners, fellow-prisoner Joseph was reputed to have told a vintner that he would be freed because the insect flying into the King's wine lay beyond his control. But he predicted death for the baker in whose loaf the King found a stone. In the Land of Equity, the two bus incidents summarized above might have been so judged.

The U.S. litigation environment lies far from this Land. In the lawsuit surrounding the first incident above, the defendant tendered a meaty, seven-figure settlement that likely meant the end of his client's business and dreams - even though his driver violated an unwritten policy and temporarily improvised a position to hold a box of munchies. In the second example, the dangerous obstruction was institutionalized by the transit agency's negligent policy-making, specification and installation, much less when its employees had complained about these very decisions and their probable results. Instead of listening, that agency scapegoated a presumably innocent driver in a process ostensibly shielded from the victim's attorneys: At worst, damages would be "contained" at the driver level where, instead of arguing the driver's innocence (as I did, pro bono, at his disciplinary hearing), the defendant would blame him - presumably to insulate management from a finding of punitive damages once the inevitable lawsuit began to evolve.

Bumbling and Bungling

In the lawsuit associated with the first incident, the defendant should have simply stipulated to the liability, apologized convincingly, and tried to defend the case "on the meds." The victim was in her late 60s and - in stark, litigation terms - the value of her remaining life was considerably less than that of, say, a schoolchild experiencing such an incident. But at least this defendant had the good sense to avoid a trial: Had the case proceeded to trial, the plaintiff's expert (me) would have informed the jury that the cereal, Cookie Crisp, was "heart healthy," and that an entire box of it contained only 11 calories - a far more likely choice for an overweight driver with no lunch break to nibble from the box than for his three-year-old son (asleep on a front, curb-side seat when the incident occurred) to wolf down for breakfast. One can only wonder if he grabbed a fistful as he turned.

In the disciplinary hearing related to the second incident, the defendant should simply have acknowledged that the evidence could not reliably classify the incident as either preventable or non-preventable. This position would have left the plaintiff's counsel with the challenge of establishing causation (preventability is not synonymous with negligence) - and would have avoided offering opposing counsel a witness unwilling to accept blame and who had gathered a litany of evidence proving recklessness and indifference throughout the management hierarchy above him. Should the defendant let this case proceed to trial, plaintiff's counsel may discover not only that the Clever Device manufacturer was astonished to learn of its mounting location on the bus-in-question, but that other buses in the defendant's fleet (including one of which the religious zealot of a driver possesses a photograph) mounted it harmlessly onto the street-side window post.

Seeing the Trees

Leaving the windshield unobstructed is, of course, no guarantee that a driver will look through it, much less at the appropriate moment. While pulling out, a driver must also glance at three or more mirrors, look through a passenger door and driver's side window, and swivel his or her head around to the degree he or she can to further expand the sector of visibility. Some bus manufacturers and their vehicles' purchasers compound these functions by, for example, mounting the curb-side, exterior rear-view mirror to the door rather than the body - providing the driver with a view of the danger zone surrounding the rear exit door either while driving or while unloading, but obviously not while doing both. Yet even without such profound ignorance and stupidity, drivers occasionally do not see the trees through the bark:

  • After unloading a wheelchair occupant, a special education driver who did not bother to engage the bus' red flashers and stop arm because his passenger would not be crossing, stepped back into the driver's compartment and immediately ran over an elderly woman standing directly in front of the windshield. Without the bus' flashers and stop arm engaged, taxicabs were passing it and the victim needed to step in front of the bus to flag one down.
  • Particularly when they lack essential information (like whether or not each passenger must cross after alighting), schoolbus drivers sometimes discharge students, fail to count them as they cross, and promptly run them right over. (Far more often, other vehicles passing the bus perform this task.)

It is also noteworthy that the outside surfaces of most bus and coach windshields are cleaner than the inside ones. While cleaning the inside surface undoubtedly requires more effort (particularly to clean the lower band lying below the dash surface), jurors are unlikely to excuse this omission when the plaintiff's expert produces a photograph of the driver's view through an opaic windshield that looks like the "before" shot of a household cleaning fluid commercial - especially when another shot of the driver's compartment captures a roll of paper towels and a bottle of Windex lying at the driver's fingertips.

Quite frankly, I think night vision goggles are an idea whose time is long overdue for bus and motorcoach drivers - if not for regular motorists - even if they are not yet remotely the custom-of-the-trade for either. But their widespread adoption may lie only a few lawsuits away. As a safety expert, of course, there is lots of stuff I would like to see. Regardless, the challenge of nighttime driving (apart from fatigue issues) casts a long shadow over lawsuits involving incidents that occurred in broad daylight.

Dick, Jane and Sally

No transportation provider can guarantee that its drivers will both look and see. But unless its counsel encounters a jury packed with individuals grown accustomed to, and satisfied with, extremely poor vision, the defendant will pay a steep price for the failure to give its drivers the best chance to do both.

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Ned Einstein is the President of Transportation Alternatives, a passenger transportation and automotive consortium engaged in consulting and forensic accident investigation and analysis (more than 350 cases). Specializes in elderly, disabled, schoolchildren. Mr. Einstein has been qualified as an Expert Witness in accident analysis, testimony and mediation in vehicle and pedestrian accidents involving transit, paratransit, schoolbus, motorcoach, special education, non-emergency medical transportation, taxi, shuttle, child transport systems and services...

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