Series: Leaving Money on the Table, Part 5
By: Ned Einstein
Tel: 212-766-1121
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In a previous post about wheelchair tipovers (see https://wheelchairtipovers.com/) – one of the gold mines in civil litigation – I discussed the spacing between securement tracks or discs, and the ADA violations that improper spacing comprises. In this post, I want to cover missing equipment.
A securement system consists of several components or sets of components:
The Americans with Disabilities Act (ADA) requires that every wheelchair securement position have some type of floor hardware – and even specifies its longitudinal and lateral spacing (49 CFR 38.23(d)(2). It also requires that every position contain three sets of tie-downs – although the clear, irrefutable industry standard is four. It requires a lap belt and shoulder harness at every wheelchair securement position (49 CFR 38.23(d)(7). And it requires some place to store (or “stow” in transportation lingo) both the wheelchair and passenger securement devices (49 CFR 38.23(d)(6) between usage.
While the track, plate or disc spacing is often non-compliant, every accessible vehicle sold comes automatically with a full set of all this hardware (including four tie-downs, even while the ADA requires only three). Yet in wheelchair tipover cases I’ve done, I usually find some of these pieces missing.
During a vehicle inspection, I have a right to find the vehicle to contain the equipment it had on the day of the incident. One could conceivably make an alibi if I do not find enough lap belts, since they are removable. But shoulder harnesses (see https://wheelchairandpassengersecurement.com/ ) are not. Nor are storage pouches: Every set of equipment comes with a pouch (to be attached to the interior sidewall). The purpose of this requirement – as echoed forcefully in all Q-Straint/SureLOK literature -- is to encourage drivers to remove the securement hardware (obviously not the floor hardware) as each wheelchair is unloaded, and stow it in a pouch – or some other container when the pouches are missing.
Many pouches are never attached deliberately because owners of companies providing the service (particularly in NEMT service, where these companies are not reimbursed for any time spent on anything unless the vehicle is moving, with an eligible passenger on board) do not want their drivers wasting uncompensated time doing things like securing wheelchairs – or, frankly, wasting time doing anything related to safety (see https://www.safetycompromises.com/. Other times, pouches get torn – particularly from the wear and tear of removing and stowing a complete set of lap belts and tie-downs in each pouch several times a day. But some sort of stowage compartment is required. During the decade during which I directed the operations of my own 70-vehicle paratransit system, and the several years during which time I also provided NEMT service with the same fleet, stowage pouches did not come with the hardware. So my drivers stowed them, between wheelchair usages, in plastic milk crates.
The point of all this, to an attorney, is that every one of these objects is required. Conversely, every piece that is missing comprises an ADA violation. As such, when your expert comes across pieces of a system missing (other aberrations will be covered in future posts on this subject), the case automatically becomes a civil rights case.
In terms of leaving money on the table, even beyond the fact that most NEMT services and many complementary paratransit services are governed by brokers – the major ones, LogistiCare and MTM, with the deepest pockets an attorney doing transportation cases will ever find – the plaintiff’s attorney can also threaten to file a class action lawsuit against the “lead agency” (transportation terminology for the public agency that received the funding). Lead agencies rarely provides the service directly in complementary paratransit service. But they almost never directly provided NEMT service directly (apart from a handful of one-or-two vehicle operations one might find on a reservation in a sparse, rural, southwest State).
As a practical matter, attorneys will not get rich from filing class action lawsuits. In such suits, attorneys are only paid their customary hourly rate. However, if a class action lawsuit is filed because one of the defendant’s contractors failed to secure a wheelchair -- because equipment was missing (or mismatched or inoperable, or for any other), that contractor will quickly become a “has-been.” So the threat of a class action lawsuit should empower a savvy plaintiff’s attorney to settle for more money. Again, this series of posts is titled “Leaving Money on the Table.” Apart from representing cheap and lazy lawyering, this failure also deprives one’s client of the damages he, she or his/her family or estate deserves.
Finally, there are nuances to the meaning of missing pieces. If a vehicle has two wheelchair securement positions, but rarely if ever transports more than a single wheelchair at a time (a commonality in Today’s systems scheduled by robots, and more so where trips are doled out to service providers by brokers), it is no defense to argue that a vehicle with only one lap belt or one shoulder hardness was all that the defendant ever needed, or that there were enough on board for the plaintiff. The ADA requires one set for every wheelchair securement position, period. So a vehicle with fewer that one full set per securement position [Remember: the ADA only requires a wheelchair to be secured at three positions, even while four positions is the clear, irrefutable industry standard] is a non-ADA-compliant vehicle. So in the civil rights case that every wheelchair tipover automatically is (via the “two-inch movement” rule of 49 CFR 38.23[5]), having less than one full set of equipment for every securement position makes the vehicle non-ADA-compliant – added baggage to the defendant’s case.
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 600 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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