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One of the most fundamental concepts of liability is that the defendant "takes the victim as he finds him." Apart from hospitals and nursing homes, few areas of modern life confront, litigate and test this principle as often as public transportation.

Damages and Damaged

Taking the victim as one finds him is unusual, as a legal construct, in that it can cut both ways - and often does:

  • An elderly individual, disabled person or child is obviously easier to injure than most other passengers. I have been involved in two cases where passengers with osteogenesis, or "brittle bone disease," suffered spinal damage when their schoolbuses traveled too quickly over speed bumps or construction sites. There is a reason this principle is known as the "Eggshell Doctrine." Even the colloquial can be haunting: In a recent case on which I assisted the plaintiff, a shuttle bus driver discharged an elderly passenger onto a snow bank, and did not help him alight. After the passenger fell, breaking his hip, the driver literally placed the moaning passenger on a wall (instead of summoning medical assistance). When the driver returned on his next run to find the victim still sitting on the wall, he helped him back into the vehicle and simply provided the return trip. In my written report, I referred to the passenger as Humpty Dumpty. Less than two weeks later, the defendant's counsel tendered a generous settlement.
  • Reflecting the fact that the winner of a lawsuit is only entitled to collect "damages," critical considerations in determining them are the quality and value of the victim's remaining life. Understandably, juries value the life of a healthy child far more than that of a severely disabled, elderly individual who has re-d, and was too old and/or infirm to engage in very much physical activity even before the incident occurred. For this reason, and particularly where the facts lie heavily in the victim's favor, many defendant's attorneys concede liability as a strategic matter, and simply defend the case "on the meds" - arguing essentially that the victim's life hasn't changed very much since the incident apart from some pain and suffering. Such a strategy can backfire: In one case on which I assisted the plaintiff, the driver failed to secure a wheelchair occupants' chair and, upon acceleration, tipped it over backwards, breaking her neck. While the plaintiff wheeled herself into the courtroom in the same chair she employed on the ride-in-question, the jury apparently loathed the defendant's conduct (or appreciated my characterization of it) so intensely that they awarded the victim $1.2M in direct damages. Presumably after consulting its underwriter, the defendant's counsel quickly added a handsome settlement for "the punitives" - before the jury had a chance to assess them.

Depending on the State and its particular form of tort limitation or immunity, one concept that often levels a playing field otherwise tilted heavily in the defendants' favor is that of punitive damages. Via punitive damages, a judge or jury can assess damages unrelated to or beyond those which might fairly compensate the victim simply to punish the defendant - particularly where the jury considers its negligence outrageous. The standards which define the rights for the consideration of punitive damages also vary by State: Many State courts require that these errors and omissions be reckless, while in others the standard is "willful and wanton" -- and in some cases, "willful, wanton and malicious." While an honest attorney will represent his or her client zealously regardless of the recovery limits, one can understand how the potential for collecting punitive damages might provide some added incentive.

Professionalism and Perspective

Incentives are particularly important to consider when facing an enlightened plaintiff's attorney. Enlightened is not synonymous with intelligent or skilled. Smart or mediocre, and highly or marginally skilled, an enlightened attorney is likely to understand an unfortunate but cardinal principle of forensic science: While brains, skill, facts and evidence are important, the most important determinant of outcome, by far, is effort. This is true not only in a trial, but even more so in the labyrinth of negotiations which often lead up to it. With greater potential rewards, an enlightened attorney is likely to make more effort - including making a greater investment in forensic consultants and experts.

Not surprisingly, jurors tend to view these issues differently than do the victims. To an unfamiliar jurist, a wheelchair occupant who survives even a serious injury may appear little worse off after than before it. After all, the victim was already in a wheelchair. This is hardly the way disabled individuals perceive things - and hardly the way most forensic experts are likely to express them. To someone disabled, the difference between reliance on a manual wheelchair versus an electric one is more akin to a caste system. To both sets of individuals, this distinction is far more important than the difference between rich or poor, and easily transcend factors like age, sex, race or religion. Several years ago, a handful of severely-disabled special education students beat up the less-disabled bullies on their schoolbus. Whether disabilities are physical, psychological or developmental, those who possess them are conscious of, if not oversensitive to, their relative statuses with respect to them. When appropriate and helpful, a skilled attorney will find some way to convey such distinctions.

Conditions and Characteristics

Even when not disabled, a passenger's physical condition or characteristics can affect his or her likelihood of experiencing certain types of incidents. A salient example involves slips-and-falls: The prototypical passenger falling on a moving vehicle, or falling while boarding or alighting from a stationary one, is overweight, if not obese. But this correlation hardly helps the defendant: Not only do such individuals enjoy the same rights to the same standards, but they constitute a disproportionately large percentage of public transportation riders. (This is true largely because health correlates with poverty, and poverty correlates with the use of public transportation.) Regardless, the victims' carriers can hardly claim that many things these individuals cannot do well are not reasonably foreseeable, To the consternation (and perhaps distain) of many defense attorneys, falling down does not automatically equate with contributory negligence. Yet I am continually surprised how many defendants' attorneys base their defenses on it.

High, Higher and Highest

Transportation providers face an odd conundrum with respect to vulnerable passengers. As "common carriers" - a status defined essentially by transporting members of the general public and charging fares - public transportation providers are held to the highest standard or duty of care whether carrying World Class athletes, acrobats or stunt men. As a practical matter, however, most jurors hold these providers to higher standards when vulnerable passengers are involved - even if this practice is not incorporated into statutes or jury instructions.

It also does not help motorcoach defendants that, as an industry-wide average, 60 percent of their passengers are elderly, and another 30 percent are schoolchildren (largely taking field or activity trips). With such a ridership profile, the "reasonably foreseeable" things that a motorcoach passenger might do or not do related to his or her disabilities or conditions might include practically anything. Vulnerable passengers are not merely frequent or even common. They form the bulk of the ridership at large. Thus, not only are motorcoach riders not professional drivers, most of them are not even normal passengers. Consequently, the observations which the professional driver of a common carrier will be expected to make, as a liability matter, will not likely operate as standards for his or her common passengers.

The lesson here should be obvious: If you need to exercise the utmost care handling a stone, do not dare drop an egg. Higher than highest? Such a condition or characterization may not exist in science, engineering, mathematics or logic. But do not bet against it in the courtroom.

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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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