In a perfect world, or even a logical one, the individual or entity that caused an incident would be held responsible for it. Within our litigious society, this is often not the case.

Tales from My Backyard

In the J-walking capital of North America, most Manhattanites recognize that laws that operate elsewhere have no meaning here. One of them is the notion that pedestrians have the right of way. In a logical society genuinely concerned about safety, pedestrian’s rights would be limited, and they would be held accountable for failing to exercise their responsibilities. So too would be vehicle operators, both public and private. Instead, enforcement of these responsibilities broke down decades ago in New York City, and red traffic lights have been reduced to the role of minor cues. Pedestrian traffic is so thick that, at most intersections, one can almost always cross irrespective of the traffic signal simply by joining the constant stream of crossers ahead. In contrast, motorists with green lights must often wait endless light-cycles for the break in pedestrian traffic that permits them to inch forward without bowling over part of a crowd that negotiates intersections as if internal combustion engines had never been invented.

What does a green light actually mean? In Manhattan, it means that motorists must constantly play a form of “chicken” with pedestrians: Vehicles must creep forward as a threat, in the hope that a sub-stream of pedestrians will recognize the physical risks to which they are exposed, and allow the vehicles that pose this risk to slip or slide through. These fuzzy sensibilities translate into both near-constant gridlock and a frenetic operating environment. Because cities like New York have given up on traffic enforcement long ago, jurors often roll their eyes when a pedestrian (or his or her estate) sues a motorist after being struck by a passing vehicle. Of course, the vast majority of motorists who even possess insurance rarely have enough coverage to pay for an attorney’s preliminary work and filing fees. During the decade I spent in Washington, D.C., 70 percent of the District’s motorists had no insurance. Today, those who even have insurance typically carry only $15,000/$30,000 worth. So when even the exhaust from a bus or motorcoach wafts its way into a courtroom, the victim’s case is quickly focused on the big vehicle deployed by the large agency or company with the “deep pockets.”

Reaping and Sowing

With no traffic enforcement whatsoever, most Manhattan intersections turn into complete gridlock during rush hours, as they do to a somewhat lesser extent between the AM and PM rush hour periods. The most victimized players in “street-crossing chicken” are not pedestrians. They are buses and motorcoaches. Frantic motorists who change lanes continually can often squeeze their relatively small vehicles into the single-car-length gaps that open up when the traffic already through the intersection inches its way forward in the queue heading toward the next intersection. Without the mobility of automobiles or taxicabs, full-size buses and motorcoaches are continuously trapped in these intersections, while smaller vehicles weave their way alongside and in front of them. The worst perpetrators, by far, are taxis, whose drivers often use buses or motorcoaches as “blocks” or “picks” – to employ football or basketball terminology.

On those occasions where my forensic work took me to Manhattan intersections, I have been riveted by the large percentage of gridlock created and sustained by motorcoaches. Transit buses serve as offenders far less often, largely because their drivers “cheat” at stop positioning:

• When trapped by a red light on the near side of an intersection, bus drivers approaching stops designated at the far-side simply open the doors, boarding and alighting passengers, on the near side.
• When they “beat the light,” bus drivers ignore their designated near-side stops and, instead, stop and open their doors on the far side of the intersection.

I have been involved in many a lawsuit where the wrong side of the intersection encompassed a construction area, broken curbing, grassy slopes, snow and ice, and even patches of wet cement – much less poorly-lit corners, lines of parked cars, and roadway configurations that rendered such improvisation acutely dangerous. While I cannot cite specific evidence to support it, I have always felt that Manhattan police officers take out their wrath for grid-locking motorcoach drivers by citing them for excessive idling and other petty transgressions.

Sizing and Seizing

In many European cities, vehicles stuck in intersections are forcibly removed by mobile cranes known as “spiders.” Flatbed trucks simply pick up the offending vehicles and impound them. Particularly given the size of the fines (if the drivers hope to get their vehicles back), this form of enforcement pays for itself many times over. Yet in 60 years living in this country, I have never once seen this approach employed here.

Buses and coaches enjoy an unusual immunity to such forms of enforcement – largely because they are too large and heavy to be craned out of the traffic stream. And with no room for them to even travel on the jammed roadways, there is almost never a place to “pull them over.” So the filigree of token law enforcement personnel are forced to ignore grid-locking motorcoaches, and instead, “get even with them” elsewhere. Traffic and parking enforcement serves largely as punishment for Manhattan police officers who deeply resent these meaningless, unenforceable assignments. Last week, one of “New York’s Finest” ticketed my secretary when his bicycle crossed a sidewalk along a bike path designated as such by the City. Failing to fill out five boxes on the ticket, the officer told him to “examine the ticket carefully” and, with a subtle wink, effectively asked him to at least toss the ticket into a trash barrel rather than discard it as litter.

Enigmas and Exceptions

Alongside this fuzzy co-existence of motorists and pedestrians, the motorcoach industry is plagued with an irony of our regulatory environment and its penchant for litigation. Transit buses and schoolbuses enjoy a tacit immunity from enforcement largely because police officers are reticent to issue tickets to fellow civil-servants. Because most motorcoaches are privately owned and operated, the same immunity is not extended to their drivers and owners. Because there are few places to even park a motorcoach in Manhattan – apart from a desolate patch of Hell’s Kitchen above “midtown” between Tenth or 11th Avenues lying blocks away from most pickup and drop-off points – a meter maid can sometimes dole out a week’s worth of tickets in the stretch of an hour, simply by walking “down the line” of illegally-parked, standing and/or idling motorcoaches.

Following the lead of Singapore and, more recently London, New York’s Mayor Bloomberg recently began advocating for the creation of a “congestion pricing zone” in mid-town Manhattan. Thirty years ago, when I was a mid-level staffer at Public Technologies, Inc., in Washington, D.C., USDOT offered a million dollars to any big city interested in demonstrating this approach. None stepped forward. It is doubtful that it will be implemented even in J-walk, USA. So while New Yorkers wait until 2020 for the Second Avenue subway to thin out traffic to 2018 levels, frantic, road-raged motorists and gridlock will continue to co-exist and co-mingle.

Regulation and Litigation

In the world of U.S. litigation, responsible public transportation agencies and companies are effectively punished for their enforcement efforts. Following an accident, a responsible agency or company will hold a “preventable accident” hearing, an effort designed to hold drivers accountable and rid their employers of drivers who cannot be trusted to honor the public trust or sustain the agency’s or company’s standards as a “common carrier.” When plaintiffs’ counsel learn of such hearings, and obtain the results through a process known as “discovery,” they often argue that the finding of “preventable” is tantamount to a finding of “causation.” At the other end of the spectrum, bus and coach operators – public and private alike – argue that such efforts should enjoy an immunity equivalent to that of a Catholic confessional. A compromise between these two extremes appears a long way from realization.

The ironies of regulation, enforcement and litigation run thick in the public transportation industry. It reaches the extremes in high-density communities that have long ago lost control over vehicle and pedestrian movement, and where order exists only as a primal impulse: If the motorist proceeds and actually bowls over a pedestrian, the pedestrian is almost certain to sue. In contrast, the ticketing of either party is a rarity.

History and Dysfunction

Most students of history are taught that things run in cycles. Since the Mid-Seventies, more and more Americans have begun to feel like they live in the last days of Ancient Rome. The general theory holds that every great society has its day, and that no day cannot last forever. The general feeling is also that our day is done.

Amidst such events like the U.S. invasion of Iraq, and even more importantly Hurricane Katrina, most of us engaged in the provision of public transportation feel like corks awash in a tide that we cannot remotely control. Such feelings are a shame. For the pursuit of excellence, order and virtuosity almost always contributes to a society’s upswing. The motorcoach industry’s excellence in toting around mostly the aged, the young and the sick can contribute meaningfully and measurably to the reversal of a decline that has become mainstream dinner conversation. We cannot expect our fairyland mainstream media and press to keep the lid on forever. As the conundrum goes, “Its later than you think.”