Zeal and Disparity

When enough errors and omissions occur, one can count on the eventual, if not inevitable, accident occurring. What one cannot count on is an accurate and honest examination of the aftermath by police forces and sheriffs' departments, particularly those at the local level:

• Rushing out the door to stop her kindergartner son from chasing his schoolbus down the street, his mother left her 20-month daughter in a highchair, monitored by her three-year-old, developmentally-developed brother. Seeing this scenario unfold, the driver brought his bus to a complete stop, in the travel lane, slightly past the victim's house. During the roughly 60-second chat the mother had with the bus driver about upcoming vacation plans, the infant slid out of the high chair, ambled down the porch steps and, presumably seeing her mother's legs on the opposite side of the bus, crawled beneath it toward her. Before the infant could exit, the driver cleared his mirrors and began moving forward; the bus' rear tires crushed her to death. Unfortunately for the defendant school district, the infant was the daughter of the Deputy County Prosecutor. So the local police pulled out “all the stops” during their investigation – including taking DNA samples of the tires, wheel wells, mud flaps and underside of the bus. While finding not a shred of blood or tissue matter anywhere but around the curb-side rear tires, the police fabricated a fantasy that the driver claimed he had pulled his bus out to the left, and they hypothecated that he had knocked down the child with the front bumper, after which she miraculously cleared the front axle stem without a scratch as the bus rolled over her, only to crush her with its curb-side rear tires. The police based their claim that the decedent was struck by the front of the bus on a “clean mark” on an otherwise smeared, cracked and scratched but relatively clean front bumper.


• Early in the morning, after his first cup of coffee, an alcoholic was walking up the street on the sidewalk. After crossing three-quarters of an intersecting one-way street, he was crushed by the rear tires of a left-turning schoolbus whose driver failed to let him complete his crossing, and claimed she had never seen him at all. Severely mutilated but still conscious, the victim – who did not notice the bus approaching from behind him, or what had struck him – babbled about slipping on the ice and consuming a quart of vodka that very morning. Disregarding the obvious severity of the victim's injuries, which could not have been caused by a fall on the ice, the police released the bus to its contract operator. Hours later, after hospital staff revealed the extent of the victim's injuries, the police asked the contractor to return the vehicle, whereupon they proceeded to take a few superficial photographs (mostly in front of the police station rather than at the incident scene), and examined the bus for “damage,” of which they found none. No evidence suggests that they ever examined the bus' tires – although, by then, the contractor had ample opportunity to wash the bus and scrub its tires before returning it to the police – although there was no evidence they did so. Regardless, nothing approaching a “reconstruction” was conducted.

Hearsay and Handicaps

When such accidents evolve into their inevitable lawsuits, the disparity between respective police department competence and integrity has a profound impact on the difficulty of adjudicating the cases, as well as their outcomes:

• In the first example above, the lies and fabrications of police reports, reinforced by parroting and exaggeration of the plaintiff's expert witness, led to a lucrative settlement forced upon the school district by the extortion of its catastrophic insurance carrier (see article “Bad Evidence, Bad Faith” in the March, 2008 issue of NBT) unwilling to take its chances in court, given the magnitude of fraudulent evidence and the likely size of the damage award should the plaintiff win.


• In the second lawsuit, the victim's counsel and experts had a fight on their hands overcoming the superficial evidence and investigation team's lethargy, despite countless errors by an unskilled and unqualified driver whose employment should have been terminated several accidents earlier.

In most lawsuits in which I have been engaged, on either side, I have found the police work wanting. Particularly where a public agency provides the service, the commonly inept and half-hearted police investigations suggest an empathy with fellow civil servants, if not a deliberate effort to handicap the upcoming lawsuit in their favor. Further in the defendant's favor, of course, is his or her counsel's access to transportation professionals at every level, for both analytical and testimony purposes. In contrast, the victim's or plaintiff's counsel must rely on outside experts.

Integrity and Impunity

In developed nations with universal healthcare systems, the consequences of such discrepancies would be muted where the victims survive the incidents. Without such a network for most American public transportation users (particularly transit and motorcoach passengers), its unavailability exaggerates the importance of lawsuits, as the failure to obtain a sizeable damage award or settlement can translate into an open-ended cost- and time-drain for the plaintiff's extended family.

These dynamics also translate into a shameful enigma: It is often cheaper for a transportation provider to pay marginal attention to safety, and have its insurance underwriter payout the occasional damage award, than to tighten up policies, procedures and their execution to minimize the chances of an accident or incident occurring to begin with.

Balance and Benefits

These tendencies tend to skew a cardinal principal of safety and liability: The best way to constrain and mitigate liability is to prevent accidents and incidents from occurring in the first place. Because of the unfortunate investigation dynamics in play, however, it is often cheaper to skimp on prevention and roll the dice on cure. The obvious cross-subsidies within the insurance industry, whereby damage awards from sketchy service providers are cross-subsidized by the hefty premiums of their safer-operating counterparts, have much to do with the quality and integrity of safety efforts. Rarely are defendants prosecuted criminally, and only when tiny companies are involved.

As an industry, we suffer when, for example, an urban motorcoach operator with a decade-long, accident-free record has access to only a handful of underwriters, while the national landscape is permeated with party buses (see “The Party Bus” in the March, 2005 issue of NBT) and other anomalies that manage to obtain coverage easily, despite the obvious and extreme risks their services usually involve. In light of such inequities, it is hard to argue that “safety pays.”

As fuel costs soar and concerns about the carbon footprint increase, bus and motorcoach ridership is almost certain to expand. As it does, these dynamics are likely to haunt our industry, particularly in a deregulated environment where the high-profile failures of our worst operators can drag down the entire industry. Realistically, these are problems we will have to fix from within. We cannot count on much support from insurance carriers or cash-starved regulatory agencies. Sometimes we can get lucky from less-than zealous police incident investigations. But it is still better to load up on prevention than roll the dice on the quality of local police work and how judges and juries may feel about it.