The Death Raft

One historical image at which I have always marveled, for its mix of genius and cruelty, was the practice of chaining oarsmen (generally slaves or convicts) to their ships. This practice undoubtedly provided considerable incentive to keep the ships not only afloat, but moving swiftly and continuously. Modern equivalents still exist in the military sector, by necessity, a primary example being submarine warfare. Unfortunately, and far less excusably, such equivalents also exist in civil cases in our legal system.

Coaches and Horsemen

While accident reconstruction may not be an exact science, some catastrophic accidents appear to occur despite the vehicle, not because of it:

Following a few hours of sporadic and ill-scheduled sleep, a bus driver arose at his normal bedtime (11 P.M.), swallowed a bowl of soup, deadheaded to work, picked up his bus, and deadheaded all night long to his route’s first pickup, bolstered by periodic coffee-and-cookie stops along the way. Shortly after his fourth pickup around 8 A.M., the driver dozed off just before the freeway curved, and his coach careened through a wood-and-steel guardrail and sailed 120 feet off a bridge toward an embankment, pitching, rolling and yawing end-over-end along the way. After striking the ground, the bus then rolled over several times before coming to rest on its street side at the bottom of the hill.

Incredibly, while every occupant (except for the seat-belted/air-bagged driver) appeared to have been tossed about the passenger compartment, only two passengers found beneath the same window position of the bus, at rest, were killed (one possibly because rescue workers could not extricate her quickly enough). Another passenger not ejected was paralyzed. The others – including the driver whose compartment was crushed almost beyond recognition – were embedded with glass shards, but otherwise experienced only minor injuries. Inspecting the vehicle – a 32-passenger body-on-chassis conversion with a leaf spring suspension system, but containing heavily-padded, high-back, forward-facing, contoured bucket seats with arm rests – I was startled by the crush zone pattern: While the body torqued slightly around the chassis, popping out a few windows, most windows remained intact. More remarkably, the entire roof above the passenger compartment barely deformed, with the exception of the first row of roof panels (which deformed far below the allowable limit of FMVSS #222).

In another accident involving a similar, slightly smaller bus, its driver passed through a red light at 50 mph. (likely accelerating to “beat the light”), knocked over a van crossing through the intersection, which slid 66 feet and collided with a third automobile with enough force to knock that one 15 feet further. After the initial impact, the bus traveled another 213 feet before coming to rest.

In this accident, an unsecured, seated bus passenger was jettisoned into the dashboard and killed. The other three passengers, and the drivers of both other vehicles, were injured to different degrees. Examining photographs of this bus, I noted that the entire windshield was intact: The crush was absorbed almost completely by the radiator, batteries and front-most parts of the engine. The bus driver was practically untouched.

Billiards and Courtrooms

The most overstated cliché in billiards and pool is, “Don’t blame it on the cue.” Yet our legal system violates this principle regularly and endlessly. In the examples cited above, the seemingly miraculous survival of most of the passengers (much less the drivers) to which the vehicles’ design, engineering and structures appeared to contribute formidably, counted for very little in the litigation which followed: The first vehicle’s manufacturer was forced to settle for a considerable sum, while the case against the dealer whom I assisted in the second one was dismissed only after considerable legal and expert consulting efforts had been expended. What accounted for such results when it was apparent, in both cases, that the drivers and/or their management were so clearly at fault?

In the first vehicle’s flight off the bridge, the operating company’s insurers handed over the policy limits almost immediately, providing the plaintiffs’ council with a wad of spending money with which to pursue other potential defendants – like the state department of transportation (which constructed the guardrail!) and, of course, the chassis and body makers. More intimidated by the multinational automotive giant that manufactured the chassis than the converter making the body, the plaintiff’s settled against the former for pocket change. When I and one of my colleagues were enlisted in the case (long after a biodynamic and reconstructionist had been engaged), the body maker was fortunate to settle for a fraction of the settlement tendered by the operating company – although still a sizeable sum for its vehicle effectively being in the wrong place at the wrong time. Among this defendant’s problems, its chief engineer advised us that while he suspected that the roof would support several times its unladen weight, the bus had never been formally tested for FMVSS #220 (which requires only 1.5 times the unladen weight) or #217 and, thus, would have to now be tested to these standards, after-the-fact, simply to defend its manufacturer in the lawsuit.

In the second case, the plaintiff’s case against the operating company took more time. So, long before this resolution, my attorney (representing the dealer) was successful in obtaining a Motion to Dismiss, possibly because the plaintiff’s attorneys did not have a barrel of spending money from which to sue everyone and everything from God to clouds.

Principles and Practices

In simple terms, a primary difference between the outcomes of these two cases on a vehicle manufacturer and dealer, respectively, was the sequence of the case’s prosecution against other defendants. While some defendants were clearly more to blame than others (even in the first case cited, the operating company paid out roughly 10 times as much as the manufacturer in damages), they were nevertheless chained together like our proverbial oarsmen. Further, the breakdown of every successive link in the chain did not quell the thirst for breaking apart other links, but rather, fueled it, providing both momentum and revenue for pursuing – and outspending – additional defendants. So while the vehicles provided life rafts for many of the passengers involved in these accidents, they served as death rafts for their owners and insurers.

Like many legal systems, the American system is founded strongly on principles refined from centuries of experience and re-examination. Unfortunately, these principles are severely compromised by concerns about risk, concerns which our legal system both legitimizes and exaggerates. Among these risks is the principle of comparative negligence which exists in most states, according to which the jury gets to divide the responsibility for paying the damages among multiple defendants, in correspondence to their relative fault. In a catastrophic accident, of course, even a tiny slice of the damage pie may involve a considerable sum.

Plaintiffs’ attorneys understand these principles and risks well. Both are especially exploited when the contingent fees from a defendant or two settling out early provide these attorneys with spending money. Similarly, these dynamics also encourage defendants to settle out early, since they know that the plaintiffs’ attorneys are often looking to recoup their investments in the case as quickly as possible, and may “settle out” the first defendant more cheaply to finance their efforts against subsequent ones. There are many variations on this theme, although most follow one of two strategies:

Settle out the most significant defendants first, and with the contingent fees therefrom, squeeze additional money out of the lesser significant ones.

Settle out the lesser defendants to finance the case, eliminate the clutter they would otherwise present, and focus on the more serious defendants.

These strategies even have their own corrolaries:

For a less significant defendant, it may be cheaper to settle out for a small or moderate sum than to mount a legal defense – much less against a now-well-funded plaintiff’s attorney.

Clever plaintiffs’ attorneys make testimony and other cooperation against the remaining defendants a condition of the settlement.

The Death Raft

In real life, passengers often go down with the ship. In the courtroom, the ship generally goes down with the skipper. This being the case, those who make the ship should take more of an interest in the skipper – particularly vis-à-vis his or her employer. As I have argued to many manufacturers, one should not simply sell his or her products to just anyone who wants them. Or, like insurance carriers, perhaps manufacturers and their dealers should factor the buyers' risks into the price.

Being more selective at the dealership level would also help balance the dynamics unleashed on the motorcoach industry by de-regulation. While a dealer and manufacturer might indeed lose sales to their competitors willing to sell to virtually anyone with money or credit, those dealers and manufacturers which do would also sink with their ships – as our legal system so aptly demonstrates.

While even the most prudent operator can experience a genuine accident, the odds of a prudent operator having one are considerably lower. Pricing those with higher risks out of the market would lower the operating costs of those associated with lower ones. Were I an insurance carrier, manufactuer or dealer, I would bank on the ship whose oarsmen are well rested, well paid and properly nourished.