The transformation of fixed route bus and rail services to better accommodate disabled passengers and the creation or modification of paratransit services to supplement them have placed a strain on transit agencies from a number of perspectives:
Little in public transportation is as challenging as transporting wheelchair occupants with unique needs, and often unique chairs. In fixed route service, few of these individuals ride with the same driver from day to day, and many of their trips are not predictable. In paratransit service, the provision of load upon load of them, traveling in all directions, with last-minute, one-of-a-kind trips dispatched into already-tight schedules, compounds the difficulty of their transportation. A common theme in many or most transit and paratransit accidents is that the vehicles were running behind schedule. Such a finding by the victims’ attorneys (or their forensic experts) signals doom at the trial level, and may add significantly to the need for settlement, not to mention its costs.
The task of transporting disabled passengers, particularly in wheelchairs or scooters, is demanding for even career drivers. The task can be overwhelming for new ones:
Such chaos is not relegated to new drivers:
Such mishaps are also not confined to paratransit service:
Such incidents have been repeated, in almost endless variation, in the past decade. Their causation often involves multiple errors and omissions. One theme which weaves through many such incidents is the fact that the driver had little experience with wheelchair transportation and its elements – driving, loading, unloading and securing chairs (or scooters) and their occupants.
One factor which clearly contributes to this problem is seniority. This practice is hardly confined to largely-unionized transit operations, since some form of seniority in driver assignment is employed in many or most non-unionized operating environments. Further, the problem is also common to paratransit operations, which are largely contracted to private, non-union companies. One cannot conclude, therefore, that the problem is institutional. In contrast, the root of the problem lies in the failure to acknowledge the importance of specific types of experience in the safety equation, and to take steps to apply these principles to driver assignment. The practice of doing this may be referred to as “progressive driver assignment.”
During this author’s 10 years directing the operations of a large paratransit system, nothing resembling any of the incidents cited above remotely occurred. The reasons for this were numerous, ranging from coherent system design to the regular review of drivers’ logs. But one factor which unmistakably contributed to this record was the progressive assignment of drivers to runs of increasing complexity and responsibility. Drivers advanced through a series of carefully-regimented steps:
Following this progression, those drivers eventually assigned to challenging routes had assimilated a considerable range and depth of post-training experience. These experiences improved upon driver performance skills developed from layers of pre- and post-service training in a range of highly-interrelated disciplines, including:
Because drivers executed most of these procedures routinely (CPR and evacuation were the exceptions), their experiences not only reinforced their pre-service training, but refined and enhanced it. So while experienced drivers undoubtedly made minor errors and omissions, major ones – like failing to secure a wheelchair or passenger – were rare: For drivers who had progressed to handle them, such omissions were almost unthinkable.
To accommodate such a progression, of course, a long list of system elements had to be carefully coordinated and synchronized – including bio-sensitive driver assignment. Drivers were assigned to early or late shifts according to their sleep-wakefulness cycles: “Larks” to early A.M. and P.M. shifts, and “owls” to late ones. However, a number of other factors had to be integrated into the mix, and balanced to the degree possible (or reasonable given the complexity of the variables). These factors included:
Despite these other constraints, driver familiarity with the various degrees of difficulty in passenger needs – from those of ambulatory passengers (many had visual impairments, uneven gaits from Cerebral Palsy, etc.) to those using mobility aids like manual and electric wheelchairs – lay at the core of system safety. So the consideration of other constraints was often driven by the need to match driver capabilities with the difficulty of each assignment. Largely as a result, no one was ever injured as the result of wheelchair- or passenger-securement errors or omissions.
In the provision of 2,200 trips per day to passengers who were all developmentally disabled, many of whom were physically disabled, the perfect execution of passenger and wheelchair securement procedures in every instance did not likely occur. And because of the numerous variables involved in operations, and the constant change which comprised the very essence of demand-responsive transportation service, the sequential advancement of every driver through every step of the driver assignment progression was not always accomplished. However, because progressive driver assignment as an approach was so heavily-emphasized and universally-applied, its basic principles were rarely, if ever, violated. This meant that new drivers were almost never assigned to tight routes carrying wheelchair occupants. Conversely, drivers assigned to difficult and challenging routes were almost always prepared for them. Long before a driver was permitted to transport a wheelchair occupant, he or she had considerable experience in the transportation of passengers with far less severe needs. Similarly, drivers were rarely assigned to tight routes before they had opportunities to learn parts of the service area by driving loose ones. Regardless, progressive driver assignment protected the system, its drivers and its passengers from exceptions.
The system described above had the fortune of operating mostly in the pre-ADA era, where a misunderstood obsession for administrivia did not overwhelm principles of safe and productive operating reality and common sense. One important element of this environment involved the system’s balanced use of digital technology. Fortunately, scheduling and dispatching software was in its infancy during most of this era. However, the system would not have employed it by choice even if it had been available. While performance evaluation, client information and numerous other variables were tied together by elaborate, custom-designed software programs, dispatching and scheduling were performed manually (with computer-assisted information). As a consequence, operations were directed by a crew of transportation professionals, not an army of computer wonks.
This balance of analog and digital disciplines paid off constantly as dispatchers, who had absorbed their details, commandeered the execution of procedures involving layers of precise information. When dispatchers were required to “TX” routes – capabilities which lay beyond all or most current-day software programs – they had internalized many of the nuances of passengers temporarily transferred to other vehicles and drivers, and were able to improvise the procedures necessary to not only protect them, but to get them to their respective destinations nearly on time. And as they were more tuned into the nuances of operations, and in constant touch with drivers, dispatchers and other management personnel were able to address safety issues and potential problems long before they translated into incidents or mishaps. Among the information gleaned from this constant, close monitoring – including regular log review – were incidences where drivers’ skills were not optimally matched to the demands of their assignments. These assignments were quickly adjusted before they evolved into safety-related problems – often by simply reassigning drivers to less-demanding routes, assigning supervisors to help them, or by instructing drivers to practice “dry runs” of selected route segments during their non-passenger time. As a consequence, flexibility in driver assignment also became a tool to improve performance.
Apart from their poor performance, a curious feature of most post-ADA paratransit systems is the virtual absence of any logic or criteria for driver assignment. Yet paratransit service can hardly be singled out for this omission: Few transit, pupil transportation or motorcoach operations employ them either. In more than 70 incidents and law suits examined by this author in transit, paratransit, pupil transportation, special education, motorcoach, shuttle or taxi operations, not once were any criteria related to system or passenger safety used in driver assignment.
Misplaced blame for this omission is often focused on the union environment, where driver assignment is governed formally by seniority, and may seasoned drivers select “milk runs.” As noted, most paratransit services are provided under contract. In these services – where practically all the passengers are disabled in some respect – distinctions in driver experience are more exaggerated and more consequential. Because paratransit ridership is not as peak-hour oriented as transit ridership, flexibility in driver assignment choices is far greater. All this provides support for the fact that the absence of progressive driver assignment in fixed route service is not a union issue, but rather, a management issue. Further, it is not even a driver or labor issue: One important lesson from paratransit operations is that the vast majority of good drivers prefer tight, logical and demanding schedules. The failure to provide such routes – or to compensate those drivers capable of driving them – is a generic management problem, not a problem endemic to fixed route or any other type of service. It only becomes a labor problem when drivers, or the institutions representing them, refuse to consider such experience fairly in negotiations or salary determinations. Experience in the public transportation field provides little evidence that such considerations have been rejected by labor.
Like paratransit service, transit operations are imbued with considerable mythology. Among this mythology is the notion that most drivers will choose assignments reflecting easy routes, shift starts, shift durations and recovery time rather than most other factors. Since such dynamics are not inherently valid for paratransit services, it stands to reason they are not inherently valid for fixed route services – even though limited run and shift choices may yield limited rationales for selecting them. More like, few efforts have been to sort out the dynamics which would govern run selections were drivers given choices which genuinely reflected these dynamics, and which compensated them accordingly. The importance of factors like shift start- and end-times, operating division or shift-change locations (with respect to drivers’ homes), number and frequency of wheelchair occupants, and likelihood of at least some recovery time – much less regularly – is obvious. But the absence of progressive driver assignment has prevented most systems, and the industry as a whole, from identifying the respective importance of these variables in the context of a broader framework encompassing other important variables, and a logic for integrating them.
Without experience from such a framework, important interrelationships have also not been identified. One of these is the correlation between driver experience and securement-related incidents – although insurance underwriters have indeed sorted payout data by years of driver experience. Unfortunately, this relationship has been measured primarily by years of service compared to history of prior accidents. This approach is akin to testing buses by “putting mileage on them” – rather than testing each subsystem in the environment most conducive to measure its performance. Such a practice is unthinkable in the evaluation of vehicles. Yet it is standard practice in the evaluation of drivers.
Because other relationships have never been identified, much less thoroughly examined, the correlations among progressive driver assignment, payouts and drivers’ salaries have, similarly, never been established. These latter interrelationships are of substantial importance when one considers that roughly six percent of farebox revenue (the average dips below five percent for those states with immunity statutes for public agencies) is consumed by damage award pay-outs – while, in some systems, they comprise as much as 22 percent.(1) Since drivers’ salaries generally comprise less than 22 percent of farebox revenue (this is somewhat proportional since drivers’ salaries are generally lower in areas where ridership is lower), it stands to reason that, at least in systems with high payouts, accident rates and drivers’ salaries are related, if only indirectly.
These relationships are also worthy of note for another reason: Even if one were to accept the premise that drivers are interested solely in their financial welfare and not at all interested in passenger safety – a premise which seems preposterous and irresponsible – one would have to agree that drivers might be willing to negotiate provisions of their employment which promise to reduce incidents, exposure and pay-outs if salary increases were tied to them. Of course, such self-centered assumptions belie actual operating experience which, in contrast, demonstrates repeatedly that drivers generally care more about passenger safety than their own: An examination of data in this author’s former paratransit system found that 80 percent of “fender-benders” occurred during the 20 percent of mileage which consisted of deadhead. In other words, drivers operated 1600 percent more safely when they had passengers on board than when they were by themselves.
Finally, the transportation of wheelchair occupants and other disabled passengers is not the sole rationale for progressive driver assignment. A full 15 percent of all transit passengers are schoolchildren. Accommodating them requires special skills not only in passenger management, but general alertness and accident avoidance: While these incidents elude many accident statistics, far more bus passengers are killed or seriously injured when struck by vehicles other than the bus itself. This is particularly true for schoolchildren, for whom crossing accidents is becoming an epidemic. In one recent case, a plaintiff was awarded a $7.5M judgment against his transit agency when struck by an oncoming car after crossing to the rear of the bus. In that particular system, drivers were permitted to improvise stops (although not at the time of day in which the incident occurred). While the policy was itself reckless, a better driver would not likely have selected the particular stop in question, much less in violation of system policy. Not only does bus safety sell – as 450,000 schoolbuses deployed in the United States suggest – but bus safety pays.
The matching of driver experience and skill to duty assignments would involve a narrow spectrum of factors were all runs or assignments the same. Were they all the same, one could employ a limited number of variables, like circadian rhythms and lifestyles, and match drivers of certain classifications to various shifts, focusing on their start-times and durations. This approach, known as performance-based scheduling or bio-sensitive driver assignment, has proven effective in a range of transportation sectors, in a number of countries, including passenger and freight rail operations, trucking and delivery services. What complicates such approaches in passenger transportation is the fact that all runs and assignments are not the same. As a consequence, the task of matching drivers to runs must take into account degrees of difficulty in many other respects (including some common to freight transportation). A number of such factors could help define the degrees of difficulty associated with each run or assignment. While some of these are obvious, others may be less so:
These examples are not inclusive. They are meant to be suggestive. Many factors, or their refinements, may also be regional or local in nature, and may vary from one transit district to another. Regardless, considerable variation in route composition and driver assignment exists; some runs are clearly more difficult and demanding than others.
Were one to factor in the variables which make certain runs more demanding than others, one can envision how the application of a framework reflecting these difficulties – and tying them to differences in driver compensation – might draw the most experienced and qualified drivers to the most demanding routes. Without such a framework, other variables – such as shift start-times and shift continuity (i.e., single versus split-shifts), which may or may not have safety implications – will naturally govern driver assignment. As a consequence, the matching of drivers to assignments may have no bearing to safety. In many cases, however, these dynamics may operate counter to safety – when, for example, a naturally early riser is assigned to night or owl service, or a driver with seniority selects an easy route.
As a practical matter, the ability of drivers to perform in most or all of the areas cited above could be evaluated, and in many cases, tested. As an obvious example, two components of reaction time (recognizing the need to brake and moving one’s foot to the brake pedal) can be rigorously tested. So too can be eyesight which exceeds minimum standards, and night vision. Even if only a few cents per hour are tied to differences in performance among certain variables, their accumulation could combine into a meaningful incentive for more skilled, knowledgeable and experienced drivers to undertake assignments where such skills are most needed. Such a framework need not replace others, such as seniority – particularly where a component of salaries already reflects experience. Rather, such a framework could supplement them.
Such a framework also holds great potential as a bargaining tool. It could provide a mechanism through which disagreements over wages and wage structures might be compromised.
Finally, over a period of time, the use of such a framework might provide information which could be correlated with accident rates and pay-outs. If and when such relationships can be established, they might provide a basis for linking accident reduction to drivers’ salaries – either for specific drivers or drivers as a group.
One of the best defenses to a tort claim is to demonstrate that the incident occurred despite carefully-thought-out and systematically-applied hiring, training, monitoring, evaluation, supervision, management, maintenance, system design, planning and policy-making. But defendants must earn the right to such a defense by performing according to safe and effective standards and practices. When a wheelchair clangs around in the passenger compartment, or a passenger flies into the stepwell or dashboard, lawyers and their experts often argue that “the thing speaks for itself” (res ipsa loquitur in legal parlance). When a schoolchild is struck down after running into the street in front of or behind the bus, it doesn’t help the defendant when its driver leaves the scene and fails to report it – since a salient characteristic of almost every incident is the presence of witnesses. When the bus shows up as a silhouette on a police accident report, it is of little importance that the driver had decades of driving experience or seniority.
Within the context of personal injury lawsuits, one cannot hide from poor policy-making, poor training, poor management or poor driving. When incidents occur with new drivers, their employers become settlement or trial fodder. When these incidents occur with seasoned drivers, fingers point to the layers of management and policy-making above them. After all, how could experienced drivers make such mistakes if properly directed, trained, monitored and supervised? Sadly, many incidents could have been avoided had drivers been assigned to tasks commensurate with their abilities and experience.
Accident analysis is performed at many levels, with varying degrees of thoroughness, accuracy and sophistication. Particularly where no fatalities are involved, the vehicle collides with neither another vehicle nor a pedestrian, or the vehicle does not leave the roadway (e.g., as in a rollover), the level of analysis depicted in police accident reports is relatively superficial. In sharp contrast is the level of analysis performed by attorneys and their forensic experts. Most interestingly, many accidents reveal dozens or scores of errors and omissions. Many of these errors and omissions contribute either directly or indirectly to the incident. But even where they do not, they help plaintiffs’ counsel “paint a picture” of the nature and quality of the system. And they help characterize the management and operating environment in which the driver was relegated to perform. In certain states, an accumulation of errors and omissions helps form a “pattern of negligence” which leads to the awarding of punitive damages – often well beyond the value of actual monetary damages suffered by the victim or victims.
Within such a litigation environment, narrowing the number, range and diversity of errors and omissions can make a significant difference not only in incidents occurring altogether, but in controlling the damages awarded (or agreed to in settlement) as a consequence of them. Employing a framework for driver assignment sensitive to the safety-related demands of transportation runs and driver assignments can contribute meaningfully to the reduction of accidents and the minimization of damage awards.
Finally, the principles of progressive driver assignment are increasingly being recognized in private, personal transportation provided by non-professional drivers: Many states have “graduated licensing programs” which award full driving privileges to new drivers only in stages – early ones of which involve driving only with an adult supervisor, and driving only during daylight hours. That transit and paratransit systems rarely employ similar devices – while their vehicles transport large numbers of often disabled passengers, and as “common carriers” are held to the highest standard of care – seems hard to explain or defend. In court, it is even harder.
ACKNOWLEDGEMENTS AND DISCLAIMERS
The views expressed in this paper are exclusively those of the author, and in no way reflect those of the American Public Transportation Association or any of its other members.
ENDNOTES
Cooperative Research Program: Legal Research Digest, December, 1994—Number 3, p. 1.