In my review of more than 80 public transportation-related accidents and law suits, one almost universal theme has been the absence of any log review. This failure has generally combined with another common theme: A vehicle running behind schedule. The relationship between these two themes is easy to both understand and demonstrate - as is the acknowledgement that they constitute a genuine safety problem. But in a courtroom, the fact that system management failed to notice the vehicle running late - and worse, failed to even look for it - translates into a liability problem as well.
Faster than a Speeding Lawsuit
The range and variety of accidents and incidents caused by vehicles running behind schedule are considerable:
Federal or state laws do not currently require occupant restraint systems on motorcoaches. Further, some states which require them on schoolbuses (e.g., New York) do not require their use. But these subtleties are of little value in a courtroom. If occupant restraint systems are available, it is difficult to craft a persuasive argument for not using them.
While one may consider standees a transit phenomenon, a significant portion of the motorcoach business involves commuter/express service, with large segments of many routes traversing urban and suburban, stop-and-go environments -- where most boardings and alightings occur, and where passengers commonly walk to and from their seats when the vehicle is moving. But even in other motorcoach modes, many vehicles contain restrooms. And passengers may cruise the aisles to chat with those in other seats -- particularly on long trips. Systems and their drivers may not monitor -- or even prohibit - standees, particularly during route segments involving heavy loading, unloading, turning, acceleration, deceleration or braking. And they may not be able to prevent rapid deceleration or braking due to sudden, intervening events. In such situations, standees are vulnerable.
Regardless of the effect, a common cause of many or most on-board incidents is reckless or careless driving. Within this context, what happens to the passenger is often a mere symptom. Because reckless driving is also a statutory violation, its commission is understood by almost every juror - and drivers committing it are not only blamed, but loathed. This attitude compounds the fact that negligence occurring in the commission of a statutory violation may also "open the doors" to a finding of punitive damages - where jurors are virtually set loose to punish defendants by awarding damages far in excess of their genuine value.
Burden of Proof
As a theoretical matter, the burden of proof in any lawsuit lies with the plaintiff. As a practical matter, this is not always the case. When wheelchairs fly loose, flip over or pivot, it can be difficult to avoid a finding of negligence. While reasons for such phenomena may exist apart from driver errors and omissions, most judges and jurors are likely to assume that the very occurrences of such events demonstrate, or even prove, negligence without any corroborating evidence. Plaintiffs' attorneys will likely argue that such negligence is intuitively obvious, because "the thing speaks for itself" (res ipsa loquitur in legal jargon). Even if it does not, I have rarely heard a driver involved in this type of incident accurately describe the wheelchair securement process - which involves having and using the proper type and number of restraints, their positioning, their hardware, their storage, their latching, their adjustment, their tightening, and their testing - all in proper sequence, among numerous other variables. Because wheelchair occupants on motorcoach are rare compared to those using paratransit services (especially as the ADA is just being phased in), wheelchair securement is likely to be both new and exotic to most motorcoach drivers. In one incident I examined, the wheelchair occupant whose chair the driver did not secure at all was the first such passenger he or the system had ever transported.
Because both bus and rail transit passengers normally ride standing, when one falls down on a motorcoach - much less is thrown about the passenger compartment with considerable force - a presumption of excessive acceleration, deceleration, braking (which typically implies negligent following distance as well) and/or turning is only natural (though not always valid). When a passenger is thrown from a seat, such presumptions are even more likely - and more forceful.
When a passenger is struck by another vehicle while crossing - often because the driver pulled away before the passenger finished crossing, or because the driver did not enforce the appropriate crossing behavior for the type of bus or coach involved (i.e., schoolbus passengers normally cross in front, others to the rear) - a common presumption is that the driver was "shaving time" off the route. Such a presumption is reinforced when the driver claims to have not even noticed the incident - and, consequently, drove away immediately after it unfolded. Such drivers and their systems are courtroom fodder when plaintiff's counsel and expert witness demonstrate that running late was routine - evidence that no one looked, and perhaps no one cared.
Leaving a Trail
Of course, it takes time to secure and unsecure a wheelchair, secure or unsecure the occupant to it, and load or unload it via a lift or ramp. It takes longer to travel if one increases and decreases vehicle speed more gradually, turns more gently, and/or leaves a wider gap between the coach and the vehicle traveling in front of it. It takes time to find a safe and otherwise appropriate loading or unloading point, and to properly align the bus or coach within it. And it takes time to ensure that each alighted passenger crosses at the proper position with respect to the vehicle, much less makes it safely to the other side. However, much of this time -- particularly the time needed for wheelchair and passenger loading/unloading and securement -- can be identified from the careful review of a well-designed driver's log.
I am not speaking of the generic log required by FMCSA regulations to verify compliance with Hours-of-Service requirements, prescribed preventive maintenance intervals, or other regulatory mandates. I am speaking of the type of log designed to capture the essence and nuances of driver performance along the route. This type of log permits drivers to enter their arrival and departure times alongside every estimated arrival and departure time. Consequently, it permits those reviewing the log to compare the actual times with those scheduled.
Someone familiar with both the route and the driver, and who engages in regular log review for both, is not easily fooled or tricked by false log entries. However, even if one is fooled, he or she will still be able to demonstrate, in a courtroom, that he or she tried - and at least bothered - to monitor the driver's performance and conduct.
Ignorance and Waste
Apart from safety and liability issues, log review is a critical tool for optimizing productivity. In the large transportation system whose operations I directed, I taught management and drivers alike that every system change (i.e., particularly to a route or schedule) was an opportunity to improve productivity. By regularly comparing drivers' recorded stop times against those we estimated, and reviewing the drivers' notations about deviations and alternate approaches to routes, schedules and stops, we were able to continuously refine routes and schedules - not only streamlining them, but facilitating the ease and reliability of subsequent monitoring efforts. Regular log review not only gets easier and easier, and renders routes and schedules more and more accurate, but yields far more benefits than it costs.
Many excuses I have heard for not reviewing logs are puzzling. In one large, urban paratransit system I examined - where the driver clanged around a wheelchair occupant for nearly six hours (five hours behind schedule) - one field supervisor testified that she often spent more than an entire week following around a single vehicle. A fellow supervisor testified not only that he never reviewed drivers' logs, but that such review served no purpose. The contractor providing this service lost so much money from this operation that it literally "walked away" from 50 vehicles' worth of business! Of course, getting slam-dunked in a lawsuit compounded these losses.
Marbles and Bumps
In Puddinhead Wilson, Mark Twain remarked that, "Only a fool is afraid to put all his marbles in one basket. A wise man puts his marbles in one basket - and watches the basket." If a public transportation operator wants to profit from his or her operation, keep the passengers safe, and keep the lawyers at bay, he or she must keep an eye on it. One of the best tools for accomplishing this task is the driver's detailed, accurate record of the trip, and what happened along the way.
If there's a bump on one of your logs, its better to find it and repair it off before some passenger trips over it and falls off. If you did not, and worse, if you never even looked, you can bet some attorney and his or her technical expert will not only find it, but will make the bump seem larger than the log.
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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