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Safety Compromises, Part 12: Conclusions

By: Ned Einstein
Tel: 212-766-1121
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The final installment of this series examines the socio-economic dynamics and choices which led to the increasing commission of safety compromises by America's public transportation services.

The trade-offs of safety for other benefits are more common and more severe in some modes then in others. The most common safety compromises also vary from mode to mode. But the same set of dynamics has affected all these modes, and has influenced the tendency to commit safety compromises of all types.

Risks and Choices

Particularly in our heavily-litigated society, the notion of risk is paramount. A tightrope walker assumes enormous risk. He or she cannot file against the manufacturer which sold him the pole or the rope. This is less true for bungee jumping, yet not entirely. In contrast, most public transportation passengers assume little or no risk. Part of this responsibility stems from the fact that some modes own a monopoly in their service areas. But even without these monopolies, passengers rarely have reasonable choices. They cannot fact-check the driving record of every driver or the maintenance record of every vehicle. They cannot know how or even if services are monitored or managed. So they must rely on our institutions to ensure that the provision of services is reasonable and prudent. When it is not, victims (or their estates) have recourse through our legal system.

Even if passengers could waive their rights to safety, which they cannot, pedestrians and motorists surely cannot. With potential victims having no choices, service providers must offer the right to safe operations and maintenance, and reasonable oversight, express or implied. Frankly, most service providers formally prioritize "safety first" as a policy matter - often inflating their approaches to ensure safety in order to score points in bid processes and win contracts. Regardless, when service providers fail to place safety first - compared to optimizing profits, remaining on schedule or achieving other goals - they may pay for this failure in court. And if the plaintiff's counsel realizes that errors and omissions were deliberate, and can prove it, the judge may instruct the jury it can assess punitive damages against the defendant or codefendants.

Over the decades, transportation safety has improved from design (e.g., integral construction, compartmentalized seating) and technology (e.g., ABS brakes, motion sensors). But socio-economic factors that lie beyond the control of public transportation providers have radically altered their operating environments and financial dynamics. These changes do not excuse the commission of safety compromises. But a quick review of rudimentary socio-economic changes helps to understand why they are made.

Historical and other Dynamics

One can trace the distant roots of many safety-related problems to a single piece of legislation: The Defense Highway Act of 1954. Under the pretense of improving the efficiency and stability of our war-related travel network (most importantly for trucks), this Act called for the construction of 49,500 miles of Federal highways.

As one might expect, this explosion of infrastructure also led to the radical expansion of state and county highways and roads to make the interstate highway system even more usable. This single Act, and its state and county counterparts, led to a phenomenon we now characterize as suburbanization. As only our oldest citizens may remember, public transportation services saturated the landscape in the 1940s and 1950s.

Redistributing our population also had the effect of destroying the urban form that made public transportation so efficient and effective: The close proximity and clustering of residents and trip destinations. As a result, unsubsidized transit companies gradually reduced their routes to a skeleton of their former selves, or disappeared altogether. The last one to go, in 1969, was New Jersey Transit. Along with the collapse of transit, automobile traffic mushroomed.

The Car Country squeezed funding for public transit further still. The "unfunded mandate" for paratransit that accompanied the passage of the ADA, in 1991, began squeezing fixed route transit budgets even tighter. Other subsidized modes, like schoolbus service, felt this pinch in different ways: That same year, premium schoolbus manufacturers Crown and Gillig left the market. And that same year, scheduling software emerged to quickly eliminate the desire to actually design a fixed route or paratransit system. Unsubsidized motorcoach service was handicapped by subsidized passenger rail service (AMTRAK) and undercut by deregulation. More recently, the taxi and limousine sectors were decimated by transportation network companies (TNCs) like Uber, Lyft, Via, Sidecar and Juno (see "Bad Regulations and Worse Responses, "June, 2015 through January, 2016, National Bus Trader). The replacement of drivers with robots has already begun (see "Autonomous and Inevitable," October, 2016 through August, 2017, National Bus Trader).

Brief Reprieves, Short-Lived Solutions

Former President Johnson initially rescued our public transit systems with his creation of the Model Cities Program, in 1964: The newly-formed Urban Mass Transportation Administration (since renamed the Federal Transit Administration) paid for 80% of the cost of transit buses purchased in urban areas. In 1967, when the U.S. Department of Transportation was created, UMTA was relocated into USDOT, and it quickly created "operating subsidies." By 1975, roughly 62% of increases in transit funding were immediately absorbed by wage increases. American workers were riding high. But their highway networks and the public services operating on them were running out of money.

These socio-economic forces and the structural and institutional failures that accompanied them have much to with the enormity of safety compromises common to all modes of public transportation (see Somewhat haplessly, the playing field is being leveled by the get-rick-quick nature of our legal system and the deep-pockets focus of our litigation environment. American motorists must carry only $15,000 worth of liability insurance in all or most states, whereas the minimum in Canada is $1,000,000. This reality makes "common carriers," held to the highest standard and duty of care,natural targets in lawsuits. Sooner or later, notwithstanding inept and lazy attorneys and their often-phony experts, committing safety compromises catches up with passenger transportation providers. This trend even catches up with public-sector "lead agencies," held harmless by their contractors, and often enjoying various forms of public immunity. But safety compromises catch up more quickly and more deeply with private sector contractors.

Apathy and Agony

The forces that decimated shared-ride, demand-responsive services (paratransit, special education and NEMT service) are different. None of these services' densities were thinned by intrusions like TNCs. None of them faced subsidized competition or deregulation. Otherwise, in both fixed route and paratransit, public transportation agencies have grown allergic to design, even while doing so would generate enormous cost savings. Further, the emergence of robots in software and/or hardware has relieved public agencies of their accountability.

In its clash with suburbanization and increasingly-insufficient subsidies, transit schedules have become hopelessly too tight. Tight scheduling is the underlying cause of a remarkable array of safety compromises (see, ranging from wheelchair tipovers to on-board slips-and-falls, as buses zoom away from their stops before boarding passengers can reach a seat or stanchion. A study by Seattle METRO, in 2014, found a correlation between insufficient running time and left-turn vehicle-pedestrian accidents. Paraphrasing yesteryear's marketing slogan for Florida orange juice, safety compromises are not just for expert witnesses anymore.

Senseless or naive reimbursement formulas translated into other safety compromises in MediCare-funded non-emergency medical transportation (NEMT) and similar services. At least in taxi service, the meter runs at some speed while the vehicle is loading or unloading, stopped at a light or stuck in traffic. No such meter operates in NEMT vehicles. Services not earning a dime when their vehicles are not moving helps to explain while wheelchair securement is so problematic. Similarly, the absence of effective monitoring has led to a rash of on-board passenger molestations in complementary paratransit and special education services.

Also discouraging are the inclinations of bureaucrats in response to even more robots (see "Autonomous and Inevitable, National Bus Trader, October, 2016 through August, 2016). While driverless buses and motorcoaches are filling out the transportation landscape in Europe, their use in U.S. paratransit services is actually being advocated at high levels. Overwhelmed by the inability of scheduling software to provide door-to-door or curb-to-curb paratransit services efficiently, and with no interest in actually designing them, paratransit officials are now calling for every disabled person to have his or her own accessible HAV (highly-automated vehicle). Such advocacy does not bode well for those providing public transportation in any form.

Down the Road

Historically, the future looks like a bad time to be a bus or coach passenger. But it should be a great time to be a lawyer. From mode to mode, we have rampant safety compromises at the operating level:

  • Transit schedules too tight at the operating level, gained through years of inadequate funding, may soon add vehicles and equipment originally designed with better intentions - but forced to scale back their safety features to reinforce the safety compromises of their customers who may specify or select them.
  • The economically-starved service providers of NEMT service awash in broker oligopolies will not deploy autonomous vehicles because their safety-related technologies will slow down their vehicles and reduce their profits.
  • Motorcoach services would lose money if the robots slow down their vehicles altogether, or even during turns and on curves.

These examples illustrate the clash with values that improved safety technologies represent. By the time these robots fill the arena, they will simply provide us with another tool to promote the same goals which are already being abandoned. This new technology may not experience fatigue. And it may experience no reaction time. Yet in other ways, constrained by commercial goals and regulatory gruel, driverless vehicles may deliver far less safety. It is one thing for your computer to crash. But if some digital component of a moving vehicle crashes or is hacked, the result will be different.

Trapped in the Middle, Caught In Between

In and apart from the pages of National Bus Trader, I have often argued that many of the problems in public transportation lie beyond the industry's control. The relentless decades-long trends noted above are only now becoming apparent. But as common carriers, public transportation providers cannot simply blame their failures on inadequate funding.

Robot drivers may soon be a short-term answer for the transit and motorcoach industries. But to utilize our seating capacity, we ma y soon need to also haul around robot passengers. What should their fares be? And who or what agency will pay them? Perhaps we can make their seats smaller to improve our ridership statistics and justify our subsidies.

America's providers of public transportation are indeed trapped in the middle. We are caught between Malthusian socio-economics and an inability to design our way out of these forces - other than to automate our way out. Some of this conflict will translate into safety compromises. In our courtrooms, this boomerang will increasingly catch up with us.

There are still things that can be done - beyond the obvious (e.g., making running times realistic). One approach could reward safer operators receiving subsidy funds with more funds - and requiring that these funds translate into safer operations. But the evaluation would have to factor in safety compromises - a notion foreign to the regulators of any sector of public transportation. Such approaches would be particularly challenging to sectors like taxi services where safety has been undermined by deregulation, or motorcoach services, in which we have failed to introduce measures like screening for Obstructive Sleep Apnea or to limit shift inversion. Nonetheless, safety can improve if we focus on specifically reducing the safety compromises which lead to so many incidents and accidents.

If those in our industry, or our country, do not soon come up with answers, these dynamics will continue to eviscerate our passengers and diminish our ridership and profits. If we do not address this causation, future accounts of our industry may make this one seem like a fairy tale.

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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