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Compromising Safety to Reduce Liability Exposure

As Originally published by School Transportation News, April 2008.

By: Ned Einstein
Tel: 212-766-1121
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Every responsible society has mechanisms to hold its citizens, and their organizations, accountable for their actions. With respect to safety, our society effects this goal through the enactment and enforcement of statutes and regulations, and through the process of civil litigation. As with most rules and most societies, many of our transportation organizations have discovered loopholes. Employing these loopholes, they have effectively reduced their liability exposure at the cost of compromising safety.

Particularly in "one percent states" (see explanation below), selected school districts effect this trade-off by bastardizing schoolbus crossing procedures - requiring outbound students to cross to the stop before their buses arrive, and returning students to alight and then wait for the schoolbus to disappear over the horizon before crossing the street. In simple terms, these districts are providing transit-style "tripper" service with school buses, engaging their crossing devices only as a useless token (since the buses are required to have them). If and when the student-pedestrian is struck by a third-party vehicle, the schoolbus is nowhere in sight, and the victim's attorneys are left to argue negligent policy-making and/or stop selection - complaints that cannot even be filed in many states because public agencies enjoy immunity for policy-making and planning decisions.

Apart from the moral bankruptcy this trade-off represents, it is also short-sighted and foolish. This is because the most effective way to avoid liability exposure is to not have accidents in the first place. Sadly, alternative approaches to reducing exposure often work. The accident victims simply pay for it - often with their lives.

Damage Award Formulas

Most lawsuits are filed and adjudicated in state, rather than Federal, court. Every state has a formula for allocating the damages awarded when a plaintiff wins a lawsuit, on liability grounds, against multiple co-defendants. There are three basic approaches to this allocation:

  • Slicing the Pie. In a few states, the jury can simply select the percentage of damages it wishes to allocate to each defendant, and assess the corresponding percentage to each respective co-defendant.
  • 51-percent States. Some jury's tend to assess damages to the full spectrum of co-defendants inconsistent with their comparative degrees of negligence, but instead, with respect to the co-defendants' respective abilities to pay. The targets of such choice are often parties with "deep pockets." To limit such abuses, and to protect marginally-responsible parties otherwise subject to this practice, most states hold that if the victim is 51 or more percent at fault, the co-defendants may walk away without paying any damages - irrespective of the remaining percentages of blame to which the jury assesses them.
  • One-percent States. In four states, if the victim is even one percent at fault, then damages assessed against the co-defendants are dismissed altogether, irrespective of the degree to which blame is placed on them, and they walk away without paying a dime.

There are some quirks in these formulas. For example, under some interpretations of "joint and several" liability, if one co-defendant does not have the resources to meet the obligations of the damage assessment, then other co-defendants must make up the difference. This provision protects the public from the tendency of many parties to underinsure themselves. Because common motorists are required to obtain so little insurance in the United States ($15,000/$30,000 is common), and many motorists possess no insurance coverage at all, those parties with meaningful coverage (i.e., "deep pockets") - like school districts and their contractors - are vulnerable even when their contribution to an accident or incident is minimal compared to the contributions of other parties. This dynamic comes into play often in crossing accidents, since most students and pedestrians injured or killed near a bus or bus stop are struck by third-party vehicles.

Roses and Ruses

It is easy to understand how little accountability individuals and organizations bear in states governed by the one-percent rule. This inequality often rears its ugly head in crossing accidents. This is because crossing victims usually contribute - if only in some small way - to the accident. In one-percent states:

Roses and red
Violets are blue.
Hurt in our state?
Boo hoo to you!

Most states have defined the age below which accident victims cannot be held liable for negligence; age seven or eight seem to be the most common. Unfortunately, studies have found that most children below age 13, and particularly below age 10, do not possess the skills to cross streets or negotiate intersections simply as a matter of their development. School districts designing crossing policies and procedures to take advantage of the one-percent rule are effectively free to commit negligence, recklessness and indifference at will without being held accountable for it. Because more crossing accidents are likely to occur in such environments, and because the architects of the policies and procedures that govern it know full well the consequences, one might argue that such policies and procedures meet the principal requirements for murder: Premeditation, motive and profit. Execution and Execution

What many school districts in one-percent states do to evade liability exposure is fascinating, even if it is a bit macabre: They effectively turn universally-accepted crossing procedures inside out:

  • At the boarding end of the trip, these districts require students to arrive at and cross to the bus stop - not merely reach the waiting area across from it - before the bus does. This way, if the student is struck by third-party vehicle (i.e., not his or her schoolbus), the student almost always makes some contribution to the accident, even when the bus stop, waiting area, path to the stop or other stop characteristics were rendered dangerous by the school district's policies and procedures, and their execution at the operating level.
  • At the alighting end of the trip, these districts require students who have alighted to wait until their schoolbuses have disappeared over the horizon before crossing from the stop, if and when they need to. Again, if and when a student is struck by a third-party vehicle, the student usually did at least something that contributed to the accident, and thus, other parties walk away Scott free.

Immunity and Impunity

It should not go unnoticed that the parties that escape accountability in one-percent states don't end with school districts and their contractors. This impunity also extends to all manner of motorists, sober or otherwise. Apart from the occasional nuisance of tickets written for lacking certain equipment or licenses required by state and/or Federal regulations, school districts and contractors operating in such environments need not comply with any regulations at all. They merely need to avoid injuring or killing K-2 children - again, because regulations have determined that individuals within this age group cannot commit contributory negligence.

That many school districts get away with this ruse speaks ill of the school transportation community as a whole. To the leaders of our community who have worked tirelessly, for decades, to develop and refine safety procedures, vehicles and equipment, such renegade practices are an insult. But this insult pales in comparison to the vulnerability to which schoolbus passengers are exposed by this disregard for proven safety techniques designed to protect them in crossing, and the absence of accountability among those organizations that get away with it.

As with the failure to retrofit schoolbuses with modern crossing equipment (see "Retrograde and Retrofit" in STN's October, 2007 issue), the ruse that subjects students to dangerous risks in exchange for reducing liability exposure shines as a beacon of failure in our community. If crossing is who we are, and what we do - the commitment that serves as the primary rationale for the existence of pupil transportation services altogether - then we must do better.

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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