No, this is not the name of a case. It refers to a dangerous conflict coursing through the bus and motorcoach industries - a conflict that we cannot afford to let exist.
One might think that enhancing safety and reducing liability exposure would go hand-in-hand. They often do. But not always.
In a more responsible and enlightened World, it would seem strange that almost a third of the lawsuits that someone like myself engages in involve wheelchair securement. In theory, it should be much safer to transport passengers in wheelchairs. After all, they do not have to climb and descend from an often-poorly-designed stepwell. And they cannot ride as standees. In fact, they travel in seats often custom-designed for their bodies, and which often contain their own lap belts. What more could one reasonably ask for? Yet the killing and maiming goes on and on. While passenger error may be conceivable, the scenarios in which it explains the incidents are rare. This helps to explain why I do a considerable amount of forensic work on the defense side in general, yet rarely assist defendants in wheelchair-securement-related incidents: After all, if the case is not defensible, why spend money on experts? When the facts lie so overwhelmingly in the plaintiff's favor, engaging a forensic expert simply gives his or her attorneys another witness to run the ugly facts by.
In 2000, a handful of who may best be described as "wheelchair nuts" actually filed a class action suit (Taylor v. Denver Regional Transit District) for the right to refuse to have their bus drivers secure their wheelchairs. While the defendant's most savvy attorney was against it, his colleagues overruled him and settled the case by agreeing, in a Consent Decree, to grant the plaintiffs this right.
Among transit industry members, this right is referred to as "passenger choice." The alternative, "system choice," permits the system (and its drivers) to plop the occupants wheelchair right back on the lift and plant them right back in the street - with no exceptions for the most vile inclement weather, much less or any safety or mobility considerations.
Picture this: You climb aboard the bus and tell the driver, "Listen. I want to sit in my lawn chair, in the aisle. But could you give me a few seconds? I need to plug in the wheels." What bus driver in his or her right mind would let to ride like this? What transportation system would let you do it? FMVSS requirements mandate anchorage strengths for every leg of every seat (the requirement is 5,000 pounds per square inch). One might argue, facetiously, that a gymnast or ballerina should be given such latitude. Yet the settlement of Taylor granted this right to passengers who cannot even climb the stepwell.
Tightly squeezed between safety and mobility, as a civil rights, matter, the Federal Transit Administration's Office of Civil Rights issued a ruling to clarify the ADA with respect to this position. While it seemed that transit agencies had the right to follow all along, the FTA's ruling (November 20, 2001) now required them to create and issue "formal written policies" identifying and outlining their positions on this issue. Keep in mind that the FTA also requires the installation of three-point occupant restraints within every securement position - a requirement with little meaning if the occupant's chair is not affixed to this position, but instead, rolling around in the passenger aisle.
One has to ask whether such attorneys had ever heard of inertial or centrifugal force, or simply did not care. In a court of law, the motives here make a big difference: Not caring generally opens the doors to punitive damages. Of course, thinking liability first, safety last, scientific reality was of little concern. The dark secret about "Passenger Choice" is that, when a wheelchair tips over and mangled its occupant, the driver can (and almost always does) claim that the passenger refused securement, and that as a policy matter, the driver could do nothing about it. Under a policy of "system choice," this argument would be irrelevant.
Following this ruling, Chicago and New York City, among other urban areas, soon demonstrated, once again, that no profoundly stupid idea goes un-replicated. As a forensic expert, No matter how severe a party's negligence may seem, superficially, at the outset of a case, I always try to examine it with an open mind. But it is hard to keep an open mind about deliberately placing a rolling chair on a moving floor. So when transit agencies began mirroring the Taylor Decree, I began drooling over the prospect of examining this folly in the context of an actual case. My chance came soon enough, though not in either of these cities.
As the plaintiff's expert, I convinced my attorney to ignore all of the dozens of errors and omissions and simply focus on the recklessness and stupidity of the defendant's policy-making. For his first question in my cross-examination, the defendant's counsel projected a slide quoting the ADA as permitting drivers to ask the passengers. He asked me if this is not indeed a legitimate passage, and does it not mean what it says. I replied that, for a driver, posing this question is not the same as, say, asking the passenger if he or she would like a cookie. When the jury stopped giggling, the attorney slunk back into his seat like a wounded castrato, without asking even a second question. (I was gravely disappointed that I did not have a chance to talk about the lawn chair.) The jury awarded the plaintiff $2.1 million - even though, superficially, she did not seem to be in any worse shape at the trial than she was before the incident.
Knowing a lot of brilliant, patient and/or honest attorneys, I do not particularly like lawyer jokes. (Q: "What do you do when you run into a lawyer buried up to his neck in sand?" A: "Get more sand.") But you can find a lot of lawyers by looking beneath snakes. Some will stoop to anything.
While there may be some exceptions - although none come immediately to mind - trading safety for dignity is a genuinely poor idea as a policy matter. If you make such trade-offs, or defer to those who challenge notions like the Laws of Motion, you are not asking for trouble. You are begging for it.
Like most conference attendees, I spend a lot of time chatting with suppliers. Particular where their products involve my forensic experiences, we often trade generic law suit stories. In a recent discussion with a securement device manufacturer, I said, kidding, that what it might really take to stop all the wheelchair occupant killing and maiming was the wiring of the devices to an audible and visual alarm in the driver's compartment: Once the lift platform reached the floor surface, a low-level alarm would begin to sound and appear, and the only way to stop it would be to attach all four securement devices to something.
The supplier (the inventor of the retractor, among other things) replied, "We make it." Astonished, I said, "What do you mean, 'We make it.."? He then informed me that his company sells these devices in Germany. He added, somewhat bitterly, "But Americans will not pay for safety." He was not completely correct. There is ample evidence that our society spends considerable sums on transportation safety. Unfortunately, we also pay dealer for those opportunities we miss. We just pay for it in damage awards and legal fees.
While I support and endorse the Americans with Disabilities Act, I do not pro-actively crusade for it. But I do crusade against making stupid and irresponsible decisions about safety and liability. We will soon be carrying lots of wheelchairs even if we are dragged into doing so kicking and screaming. And it will cost far more if we bilk the loopholes in our regulations in the process.
One can have a swell honeymoon and a rotten marriage. But if the honeymoon itself is rotten, there is little hope or chance that the marriage will not be worse. When safety and liability become trade-offs, the choices serve neither of them well. The motorcoach industry is fortunate that the principles of Taylor have not yet been applied to it (at least not to my knowledge). If and when we try to exploit it, someone like myself will be lurking in the liability shadows. Only two of my nearly 50 wheelchair-securement-related cases went to trial. The luckier of the defendants paid out only $2.0 million.
When bad legal precedents are set, it should be no surprise when agencies and companies scurry to endorse them. But as the lawsuit above notes, this trade-off is not always so simple. Bad decisions will eventually catch up to you.
Apart from some obscene cross-subsidies in the insurance industry, it will generally not increase your liability exposure to transport wheelchair occupants. But it certainly will if you are a jerk or an ignoramus.
As the motorcoach industry proceeds toward full implementation of the ADA, we would do well to avoid the mistakes of our transit brethren. In the U.S. legal system, the hares of moral bankruptcy and expediency may outsmart the turtles of science and common sense for a while. But when they eventually catch up, the turtles will eventually bite the hares in the rump. Already low to the ground, they find it particularly easy to bites the snakes.
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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