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Safety Compromises, Part 2: On-Board Slips and Falls

By: Ned Einstein
Tel: 212-766-1121
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In Part 1 of this series, I introduced the notion that roughly half of all public transportation-related incidents are the result of a deliberate trade-off of passenger safety for some system or owner's benefit. The most common benefit is the service provider's operating a schedule that is too tight.

Multiple Moments, Multiple Risks

A passenger falling down on his or her way to a seat or stanchion as the bus or coach pulls away from the stop does not usually produce results as ugly as when a wheelchair tips over. Nor does a single passenger not given the time to reach a seat or stanchion create as much additional recovery time (or reduce the lack of any recovery time) as would not properly securing a wheelchair, or its occupant into it. However, when schedules are two tight, there are only rare, occasional opportunities to secure a wheelchair. In contrast, scores of passengers board every transit route, often at dozens or scores of stops. So a driver pulling out before a passenger can reach a seat or stanchion often commits scores of these errors during a single run. As a consequence, a considerable number of minutes can be shaved from the vehicle's running time (and added to the driver's recovery time) on a single run. Because there are multiple opportunities to commit this error on every run, it is the most effective safety compromise in terms of offsetting benefits. Further, most passengers knocked down do not get hurt badly enough to find an attorney to represent them, much less effectively. Regardless this trade-off is the most dangerous safety compromise given the number of passengers placed at risk.

Regarding motorcoaches, this compromise is particularly dangerous because, unlike transit buses, motorcoaches do not contain vertical or horizontal stanchions. (And, "no," luggage racks are not an appropriate substitute for a horizontal stanchion). Otherwise, it is important to note that even vertical and horizontal stanchions are not designed for the purpose of passengers using them to navigate their way to seats or standing positions while the bus is accelerating away from a stop. Nor are they intended for passengers navigating to the front door of a motorcoach, the front or rear door of a conventional bus, or front, middle or rear door of an articulated bus as it approaches the stop where they plan to alight. This equipment is designed and intended for passengers to hold onto after they have reached it and are presumably standing in place, with both feet planted, and holding on with at least one hand.

Holding the Bag and Stuffing if with Money

Lawsuits related to passengers knocked down from these antics are a bonanza as a liability matter. This is because drivers do not create the schedules. In contrast, every General Manager knows, or should know, which of its routes' schedules are too tight. (Just like every General Manager knows that its drivers race away before passengers can reach a seat or "point of securement.") So the sympathy that a driver might get in the oehterwise respondeat superior lawsuit does not exist if the plaintiff's counsel has an expert who understands these dynamics. Instead, the blame shoots right to the top of the management hierarchy, and translates into negligent policy-making. Jurors may have some sympathy for some inarticulate, underpaid, marginally-trained and rarely-monitored driver. But they have little sympathy for some $300,000/year executive who controls the decisions governing these trade-offs.

These dynamics are of particular importance to motorcoach companies providing commuter/express service to transit agencies. This is partly because their contracts almost always indemnify the "lead agencies" for damages. So contracting does not merely translate into lower drivers' wages. With its indemnity provisions, contracting provides an escape from accountability for transit agencies. The lead agencies can make the schedules as unrealistically tight as they please. When the countless safety compromises translate into a death or injury, the contractor's insurance carrier pays the piper. (In a few states where public agencies enjoy immunity caps, they barely pay the piper when no contractor is engaged to indemnify it.)

Caught Between a Rock and a Big Stone

One knowledgeable about the dynamics of transit agency funding in "the car country" might be sympathetic to General Managers. Largely creatures of the political communities enveloping them, transit agencies live under constant pressure to provide enough coverage and frequency of service so that riders are not stranded by a lack of capacity. When this dysfunction becomes severe, one begets a class action lawsuit like Bus Riders Union v. Los Angeles County Metropolitan Transportation Authority (1999) -- where the judge ordered the defendant to purchase an additional 3200 buses. Otherwise, our legal system does not justify trade-offs of anything for safety -- particularly in potentially dangerous situations like riding on 19- to 27-ton moving vehicles.

Making matters worse, every transportation modes policy and training documents are swollen with statements like "Safety comes first." Obviously, when a bus on a 60-minute run arrives at its endpoint 25 minutes behind schedule despite the fact that rarely does a boarding passenger ever receive enough time to reach a seat before the vehicle begins moving, safety hardly came first. Depending on the circumstances (including the testimony of hapless drivers and worse schedulers), it is often not difficult to argue that safety came last. Regardless, it is undeniable that the organization's top dog knew this. Unfortunately for motorcoach operators providing commuter/express service to these agencies, their contracts obligate them to pay for the consequences.

Lawsuits involving this theme are hard to defend. Several transit agencies' drivers' manuals contain unequivocal statements instructing drivers to not move the bus until boarding passengers reach a point of seating or securement. Yet one such system with which I am familiar has not a single route in its entire system with a schedule not grossly tight. Otherwise, with even a handful of such policy statements, it is easy to establish the industry standard which the defendant and its driver clearly violated.

A private-sector service provider can take some precautions with respect to this risk, and is not without choices. In 1993, when the LACMTA's predecessor SCRTD (Southern California Rapid Transit District) contracted out 37 routes as a condition for settling a system-wide strike, those 37 routes were the least desirable on the extra board. But most bidders had a choice of routes for which to submit proposals. And logic suggested that they would select routes whose starting points were not too far from their storage locations. As a consultant in L.A. at that time, I did much more for my private-sector clients bidding on these routes: My staff actually rode-and-timed the routes, and/or "drove off line segments" (simulating bus travel speeds, and pull-ins and pull-outs). So my clients were advised which routes to not seek. So my clients did not get stuck in this operating and litigation quagmire. But their competitors did. To this day, the consequences of safety compromises from tight schedules contribute mightily to my staple of work as an expert witness.

As an inside tip, one's troubles from a safety compromise do not begin and end with the simple payment for damages. In more than a few cases, I have encouraged my counsel to amend their complaints to include injunctive relief -- asking the judge to order the defendant transit agency to add more buses to a route (or a system) to ensure that the schedules are no longer tight, and that safety compromises are no longer epidemic. In one case near the venue of the BRU case noted above, we settled for several hundred times what the damages were worth in exchange for taking our demand for injunctive relief "off the table." In that case, that system operated its own vehicles. But the plaintiff regularly rode every one of them. So think hard about serving as a contractor in a system like this.

Contractors Beware

The expression "Time is money" is so outdated that it is rarely used today. Yet nowhere is this principle better illustrated than in safety compromises. If some public transit agency wants to haul as many passengers as it can as far as it can in the shortest amount of time, it has an entire quiver of safety compromises to employ to do so. But no tool is used as often as tightening schedules so much that few passengers can reach a seat (or stanchion on a bus) before the bus zooms away from the stop. The exceptions are those passengers with a short queue of fellow-boarding passengers behind them (mostly at major stops): At least the first few in line have a chance to reach a seat (or stanchion) while those behind them are paying their fares. But if one's seat-of-choice is near the rear (and transit buses with rear doors actively encourage boarding passengers to seek seats or stanchions toward the rear) and the schedule is tight, he or she will not reach that seat before the bus zooms away unless a pretty long line of passengers is boarding behind him or her.

As an expert witness who has often defended public transportation providers in almost every mode, I would never knowingly accept a case, on the defense side, in a system making safety compromises. This reality accounts largely for the top-heavy load of cases I do on the plaintiffs' side: In more than 600 lawsuits, I have found roughly half the schedules unrealistically too tight. As an expert on behalf of a plaintiff injured by a safety compromise (or the estate of someone killed by one or more of them), I have yet to lose a case, and rarely proceed to trial in any of them. The exceptions are cases where my counsel is too cheap or short-sighted to allow me to ride-and-time the route-in-question (or in a few cases, a sample of many tight routes). Truth be told, there are many transit systems which do not have a single route in the system whose vehicles can run on schedule, with the possible exception of early morning, night and owl runs.

Private contractors bidding on public transit service -- especially motorcoach operators bidding on commuter/express service which operates mostly during AM and PM peak periods -- should be particularly wary. One might also think that insurance carriers would, similarly, pay attention to such dynamics. Of course, if one thought that, he or she would be wrong.

As more and more motorcoach operators engage in providing commuter/express service for transit agencies, as the distribution of wealth becomes more and more extreme, and as funding for public services falls further and further behind the need for it, the risks of engaging in formal, contractual relationships to provide such services will swell. To blame such problems, and their costs, on some hysteria about the litigation environment having run amok is utter nonsense. The more and bigger the trade-offs for safety that transportation providers make, the more often passengers will suffer as a consequence of these trade-offs. And the more those responsible for making such trade-offs -- or those indemnifying them for doing so -- will continue to pay for their consequences.

The only escape from this bear-trap is the likelihood that the plaintiff engages an inept, lazy or crooked attorney, and/or that that attorney fails to get the technical help that he or she needs. For a private contractor, good luck with this risk.

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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