With innovation after innovation, buses and coaches have been increasingly equipped with a bounty of features to make passenger travel safer and more comfortable. So one would think their manufacturers could figure out a sensible way to get them on and off:
One of the important conclusions one should draw from these examples is that operating errors commonly compound design errors. At the liability level, this phenomenon does not so much permit manufacturers and operators to assign blame to one another as it gives plaintiffs’ attorneys multiple defendants who generally sink together.
The fundamental principle employed in the serious design of practically anything is that “form follows function.” The application of this principle to stepwells and doors should be simple:
One wonders what makes these principles so hard to follow in bus and coach design.
From a liability perspective, design defects are problem enough when latent. The same principles do not apply to patently dangerous objects – i.e., with objects whose dangers are readily apparent. Of course, no reasonable defendant would argue that the defects cited above were so obviously dangerous that the average person should reasonably have noticed them. After all, the items at issue are not knives or lathes: They are doors and steps.
As if the door-and-stepwell cake is not decontaminated enough, it is further poisoned by its toxic frosting: Nincompoop signage. Bus and coach passengers have enough trouble stumbling down negligently-designed stepwells and avoiding the crunch of poorly-designed doors. But their travails are compounded considerably by confusing and often ambiguous signage that practically lures them into danger. One of the transit buses alluded to above had “Beware of Danger” signs mounted to the inside of the rear doors – suggesting that they would open inwardly – although the signage was probably intended to mean, “Do not ride in stepwell.”(I doubt this agency’s defense counsel would argue that this sign meant it was dangerous to step off the bus during the alighting sequence.) Above it were signs which described door opening sequences not only incorrectly, but incorrectly in two different, contradictory ways. Passengers are thus required to not only view these descriptions in seconds, while alighting (during which time they can generally not see all of the signs at a single moment), but decypher often insolvable puzzles in the process.
Not to focus undue attention on generally excellent coach manufacturers, one must still wonder how the same manufacturers whose clever engineers recently solved the capacity problems otherwise associated the ADA requirement for lifts (through the use of quick-release-and-re-space track-seating systems) continue to offer spiral staircases. Should it arise in the courtroom, such manufacturers may be hard-pressed to justify their obvious trade-off between safety and style.
Bus and coach manufacturers cannot always argue that drivers render their products unsafe. After all, their products are designed for drivers. Knowing that drivers tend to make certain types of mistakes is a cardinal principle of bus and coach design. In the courtroom, this notion translates into the principle of “reasonably foreseeable.” Conversely, bus and coach service management cannot argue that standards for their employees need not reflect the dangerous products at their disposal. In deploying these products, these managers “assume certain risks.” The remedy to these faux notions is to not make the vehicles dangerous in the first place, and to use them carefully irrespective of whether or not they are. These principles are embodied in law by the designation of motorcoach service providers as “common carriers” – bound to the highest standard or duty of care.
Among my countless discussions with wheelchair lift and securement manufacturers, I have often suggested – somewhat facetiously, somewhat wistfully – that the best way to mitigate many securement-related accidents I continuously examine is for a light and buzzer to engage, on the dashboard, the moment the lift platform reaches the floor level, so that the only way to shut them off would be to secure the wheelchair properly at all four securement positions. Recently, one manufacturer I spoke with told me, “We make that.” When I asked him, incredulously, why I had never seen one, he replied, “We only sell these in Europe. There’s no interest in them here.”
As a commercial reality, manufacturers can argue vigorously that bus and coach purchasers specify and order vehicles, and that manufacturers cannot be competitive if they do not offer what the customers want. Similarly, bus and coach purchasers may argue that they rely – often “to their detriment” – on the manufacturers to offer them safe products. Neither of these arguments is terribly convincing in a courtroom.
When I work on the plaintiff’s side of cases, I generally advise (and usually persuade) my counsel to not blame operating failures on bus and coach manufacturers. Sometimes, however, like those in cheap poolrooms, the cue really is bent. As any pool shark or juror knows, all one has to do to tell is to roll it over. Like the song goes, you can blame it on the bossa nova. But do not dare blame it on the cue.
Occasionally I advise the reverse: Do not blame the vehicle’s operator for a product defect. However, as noted, handling dangerous objects does not alleviate one’s responsibility for being careful with them. Kindergartners are taught how to hand over a pair of scissors, and how to safely carry a chair. In a society where such individuals are generally transported to school on vehicles which stop traffic, woe is the defendant exercising much less caution or care in the provision of their, or anyone else’s, public transportation service. Special penalties – known as “punitive damages” – lie in store for those failing to exercise concern.