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Negligent Retention and Driver Impunity

As Originally Published by National Bus Trader May 2010

By: Ned Einstein
Tel: 212-766-1121
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One would think in the Age of Irreversible and Growing Unemployment, employers could phase out their "dead wood" and find some personnel capable of performing their functions competently. Regrettably, bus agencies and companies are generally not among those which do. So drivers with a history of detected mirror-related problems, for example (reinforced by classifying some of their past mirror-related failures as non-preventable accidents) often remain on the job until their carelessness and impunity eventually kill or mutilate a passenger. So it is hardly surprising, that that accident is then determined to be non-preventable, and the agency continues to employ the driver, even when post-incident re-training reveals that the driver still fails to execute proper mirror observation procedures correctly.

Bad and Worse Choices

In a great many passenger transportation cases involving all modes, much comes down to whether or not the jury feels that the efforts articulated by the driver and management exemplified the highest standards and duty of care:

On behalf of the plaintiff, I recently served as an expert witness in a case where a transit driver ran over a passenger - in this case, a highly intoxicated one carrying two 12-packs of beer who the driver most likely did not want on her bus. Reaching the bus stop - and clearly within the driver's view through her bus' curb-side, exterior, rear-view mirrors - the plaintiff was angry when the bus began pulling away without him. So he ran forward and pounded on the side of the bus - a sound that the driver admitted recognizing as the sound of a human hand - an observation reinforced by an on-board passenger's exclamation that "someone wants to get on board." Having this drawn to her attention, the 300-lb. driver stopped her bus, allegedly peered into her curb-side mirrors again, and not seeing anyone in their image, simply drove away, in the process slicing in half the now-fallen-down-near-the-curb, would-be passenger's buttocks, and de-gloving his lower leg. Of course, while she testified that throughout the entire process she cleared her mirrors four times, seeing nothing, the driver failed to alight the low-floor bus and, perhaps with the aid of a flashlight, look to see where this obviously-close-by passenger actually was - particularly if he was in or near the "danger zone" by the rear tires, or perhaps underneath the bus.

Because I was obviously not present when this incident occurred, I did not know precisely how it occurred. But I clearly knew, from the preponderance of evidence, that the plaintiff had remained in the mirror's "conical sector" throughout the entire duration of the pull-in and dual pull-outs. Therefore, I was certain that one of six things had occurred:

  1. The driver had failed to adjust her mirrors properly.
  2. The driver failed to look into them.
  3. The driver looked into them but did not see the plaintiff.
  4. The driver saw the plaintiff, but simply did not want him and his beer on her bus.
  5. The driver thought she could pull away without striking him.
  6. The driver ran the plaintiff over deliberately (or didn't care if she did)

Painted into a Corner

Against this framework, the defendant was challenged with the task of devising another reasonable scenario. One their "expert" came up with was that the plaintiff had been poised behind the bus shelter, dashed out from behind it to punch the bus, and retreated back behind the shelter again (or decided this was the wrong bus) before the driver could spot him in her mirror after the pounding - a scenario affording the plaintiff an almost absurd degree of dexterity, not to mention the world's longest arms. With a blood alcohol level of .26, such a scenario was even less likely - but this did not stop the defendant's "expert" from offering it. When forced to offer other scenarios in Part 1 of my 10-hour deposition, I suggested that perhaps a large bird had swooped down and whisked the plaintiff way and out of the mirror's huge conical sector in which the plaintiff's image was otherwise captured throughout the entire incident. I was not happy when forced to articulate such ludicrous scenarios, but was given little choice - even though I qualified my responses as beyond farfetched. Such was the nature of much of my cross-examination - a few weeks after which the defendant's law firm was fired and replaced with a "heavy hitter" who proceeded to settle the case for $7.2M (see comments about the publication of a settlement below). Along the way, this new firm of superheros "stipulated" that (a) the mirrors were correctly adjusted, and that (b) the driver scanned them. We were only too happy to oblige them by agreeing to these stipulations - since the six scenarios cited represented increasingly heinous behavior, and the four remaining scenarios thus pushed the case closer toward an assessment of punitive damages - not to mention closer to violating the defendant's own policies, since the latter scenarios suggested increasingly that the driver simply didn't want the alcoholic and his beer on her bus, and took few or no precautions to locate, much less protect him, after his presence alongside the bus was obvious to and acknowledged by the driver.

The important lesson here is that, when errors and omissions are made, and the victim's lawyer or his or her expert figures them out, it is difficult to weasel out of the case. When defending errors and/or omissions seems impossible, defendants' attorneys often focus on tactics like trying to discredit the expert, or administering a deposition that consists largely of a memory test about which witnesses said what about some minutiae so tangential to the case that no plaintiff's expert would likely not have paid much, if any, attention to thinking about it. Such was the nature of my 10-hour deposition. Of course, with the severe sleep disorder I possess, no attorney in the solar system can remain awake and alert as long as I can. So this tactic bore little fruit, and again, the defendant's attorneys were fired.

Of course, the testimony of the plaintiff's expert is hardly the only thing that matters. There are many other witnesses, including an expert the defendant selects. In cases with the odds against them, many such experts are nothing more than "shill" or "parrots," the latter simply echoing what the defendant's attorney wants them to say. Such experts are relatively easy to pick apart by plaintiffs'' attorneys. More importantly, they generally make their client's case worse. This explains why, where the facts do not lie in their clients' favor, most defendants' counsel do not even engage expert witnesses: They merely provide an alleged "expert" whom the plaintiff's counsel can run the ugly facts by. (Because of this dynamic, this is also why most genuine experts do most of their work on the plaintiff's side of a case: There are simply fewer opportunities to serve as a defendant's expert.)

Prevention and Cure

As many defendants learn, while a lawsuit does tend to mop up the mess, it is rarely a cure for inexcusable errors and omissions made at the operating level. Worse, driver errors almost always suggest failures further up the management hierarchy - particularly in training and, even more so, in monitoring. Ironically, sound training can be a boomerang: If the driver was so well trained, why did he or she make so many errors and omissions? The answer, of course, lies in the fact that training has no meaning if it is not (a) understood, (b) retained and (c) applied. As I noted in a previous NBT article ("Experience and Memory", August 2009), driving tenure also does not appear to correlate directly or positively with expertise. In the case of the incident noted, the driver had had 18 years of experience, yet could not cite a single thing she was taught during her initial six-week training period.

Where training is excellent and the driver does demonstrate a fairly coherent recall of its elements when queried about them, the question arises that, if this is so, how could this driver have made so many errors and omissions? The obvious answer is that his or her performance was not monitored, and the application of this training is thus suspect (see "The Training Conundrum," NBT, November, 2001). But this gets worse: If monitoring is negligent, there is no basis for evaluation. With no evaluation, there is no basis for supervision. And with none of these things, there can be no basis for enforcement. As a result, entire operating functions are missing - what attorneys prefer to characterize as a "pattern of negligence." In many states, the establishment of a pattern of negligent triggers the jury's right to assess punitive damages.

The reality of all this is that, in the world of passenger transportation, an ounce of prevention is not worth a pound of cure. Instead, without significant prevention, there is no cure. As I have stated endlessly in previous NBT articles, and elsewhere, the key to not having lawsuits is not having incidents. In other words, do not spend your money on attorneys and damage awards. Spend it on training, monitoring and the retention of only those drivers who remember and apply their training, and who pass muster when their performance is monitored.

Finally, if and when you experience an incident, do not expect or rely upon Perry Mason to come to your rescue. By the time the details of an incident are explored in court, it is already too late for Perry were he even still alive (much less not a fictional person, and your counsel). This is partly why so many cases settle - even for huge amounts like that associated with the case noted above. In almost 400 lawsuits, I have gone to trial only 24 times. What does this math suggest about the likelihood or value of trials? What does it say about a defendant's chances of success in a lawsuit?

Confidentiality and Secondary Effects

As a footnote to the lawsuit noted above, settlements are supposed to be confidential. So I was surprised when, after I helped this plaintiff receive $7.2M from the transit agency responsible for his mutilation in a settlement this past February, the very next day the settlement award was announced in a front page article in the Los Angeles Times.

Another regrettable consequence of this particular accident was its likely effect on public policy. Put simply, we do not want intoxicated individuals driving. We want them on buses. In the exploration of the defendant's policies in the case noted, I found find clearly-enunciated reflections of this policy. Unfortunately, of course, the defendant's multiple errors and omissions that wove throughout its management hierarchy failed to tailor its operations to such a policy. Unfortunately, of course, if an intoxicated passenger is not safe on a bus, he or she will be more inclined to drive, assuming he or she can. This is clearly not what we as a society want. But it is the unintended consequence of failures of our public transportation services to operate competently and responsibly.

Most incidents, and particularly their lawsuits, provide many lessons, as this one did. But the principle lesson is to target your resources and their emphasis toward safety. If you do not believe that safety pays as a marketing matter, do not be fooled into thinking that it will cost you less to deal with the liability implications once your safety efforts fail. The way to cut down on personal injury attorneys is not through Republican Party shenanigans, or political extortion and capitulation. Particularly if we are to salvage something from a clearly declining country, it is essential that at least one branch of government is permitted to operate, even if not always effectively. Instead, we can and should be reducing the opportunities for so many lawsuits by improving our behavior, performance and concern and the management and operating levels. In a transportation industry operating within in a cornucopia of unemployment, finding good drivers and management officials has become relatively easy, and there is no excuse for not taking advantage of it, unions or otherwise. As juries come to understand this, their sympathy for, and tolerance of, poor conduct and performance can only be expected to wane even further. If you prefer to ignore these dynamics and retain your chaff, you will have only yourself to blame.

In this particular case, during the lawsuit that ensured, the judge granted the defendant's Motion to not inform plaintiff's counsel whether or not the transit agency determined the incident to be preventable or non-preventable. The failures of our marginally-accountable justice system just roll along.

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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