Many movie fans of my generation have seen the classic “The Piano Movers.” In its most memorable dialog, shortly after their loaded moving van struck a bump at the crest of a hill, and began traveling downhill, Stan Laurel peers out the street-side window and says, innocently, “Hey Ollie, look at that piano rolling down the hill.” The viewer expects to be treated to the cacophony of an upright piano smashing to bits, with its brass harp and 200-some strings reverberating and detuning in harmony with Stan Laurel’s wimpy weeping.
The People Movers
Thankfully, apart from some poor and hackneyed comedies, film audiences have been spared the sound of an activity bus full of schoolchildren experiencing or anticipating a similar fate: Death and mayhem rarely work as comedy, and are needlessly gruesome as tragedy. Nevertheless, passenger transportation counterparts of this escapade unfortunately occur in real life:
- Discharging its load of whining, overtired students from their day-long, out-and-back field trip, the first driver in a caravan parked his motorcoach at the school’s main entrance on a steep, downward-sloping hillside and, with the motor running, stepped off the bus ostensibly to help the passengers alight. When the last 22 passengers waiting to alight scrunched toward the front, shifting their collective weight onto the front axle, the coach began to roll downhill. When the driver allegedly leapt to assist a small child dangling at the entrance doorway, the front curb-side tire ran over his foot. At the bottom of the hill, the bus swung left, and had it not struck a monument at the intersection, would have barreled down an even steeper hill and plowed into the Hudson River. Miraculously, none of the passengers were injured. However, the driver whose foot was broken sued the school district!
- Upon arriving, a platoon of schoolbuses transporting students to an apple orchard/petting zoo was directed, by the orchard’s staff, to park atop a hillside overlooking the orchard. Consistent with other similarly-mis-parked buses, the co-defendant’s drivers chose to park nose-downhill, without turning their wheels, and without engaging even a simple wheel chock. Unlike the single state (North Carolina) that required an auxiliary brake system, and its handle on the wall-side of the driver’s seat, this state required neither – even though the contractor involved in the incident had purchased buses for its operations in that other state. So when the driver left the bus unlocked and wandered off to pick apples, some students re-entered the bus, began wrestling, and fell into the improperly-cocked, emergency brake. The bus rolled down the hill, smashing apart one pedestrian’s head with the curb-side, exterior mirror, and transforming a second bystander into a quadraplegic.
Needless to say, neither of these cases made it to court. The latter case cost its co-defendants millions. The first one cost the defendant tens of thousands merely to have it dismissed.
Rubes and Rudiments
Both these cases illustrate what I have often called the “Duh Factor,” a phrase I conjured up in honor of most jurors’ likely response to hearing such facts. It is difficult to proceed with a case involving the Duh Factor because it almost always involves at least one error or omission so obvious to jurors’ that their intelligence is insulted by its defense, and so elementary that their sensibilities are affronted by the degree of stupidity, and the ease and minimal costs with which the incident could have been avoided.
When injuries are severe, or particularly when fatalities are involved, these conditions leave the defendant(s) with a unique problem: They cannot defend the case in court, as a practical matter. This is especially true if some potential exists for a finding of “punitive damages,” a finding which leaves the jury free to assess almost unlimited damages in many cases, but irrespective of the value of actual or “compensatory” damages.
Defendants occasionally “stipulate” to (i.e., concede) the negligence, and fight the case solely on the value of “the meds” – the medical costs, and the plaintiff’s pain and suffering – as well as argue the limited value of the plaintiff’s lost earnings (non-existent for most elderly plaintiffs), and the limited change-in-lifestyle (e.g., for someone already in a wheelchair before the incident occurred). Thus, such a defense generally operates successfully only when the plaintiff is very old and/or already severely disabled – and I have been engaged by plaintiff’s attorneys in cases involving both where neither condition rescued the defendants from seven-figure damage awards. When a bus or coach full of schoolchildren is involved, the only practical solution is often to simply hand over the limits of the insurance policy.
The Simple Things
In these two cases, I knew the first set of defendants were courtroom fodder the morning I met the plaintiff’s attorney: Sitting alongside his desk was an aluminum wheel chock. He beamed as he proudly displayed the sales receipt from his effortless retail purchase – barely over twenty dollars. In the second case, representing the defendant school district, I beamed when I inspected the motorcoach only to find a plastic cover over the push-button parking brake release mechanism – suggesting the unlikelihood that any of the passengers on board had released it. The outcomes of both cases mirrored this evidence.
Attorneys on both sides of a case loathe complexity. Knowing that defendants often obfuscate the facts, many plaintiff’s attorneys utter, among their initial instructions to their experts, the idiotic platitude, “I like to keep it simple.” My typical response to this admonition is usually something like, “Well, you can like whatever the —- you want, but the facts are whatever the —- they are.” Of course, as the cases above illustrate, many times things do indeed resolve to simple issues – even though considerable exploration is generally needed to narrow them down.
Jurors are generally more tolerant of things they cannot or do not understand. But it is difficult to defend errors or omissions that jurors can visualize their favorite comedian making. Tolerance for stupidity – even moreso than tolerance for negligence – only goes so far. Omitting rudimentary procedures or costs, or making fundamental errors, rarely evokes sympathy. The fact that such errors or omissions lead to tragedy rather than comedy only makes things worse.