The U.S. transit industry’s 15 years’ experience adjusting to the Americans with Disabilities Act has provided the motorcoach industry with both a decade’s head start, and a handful of bad examples. One mistake the motorcoach community should not replicate is to permit wheelchair users to capriciously compromise their own safety.
Safety versus Liability
One response to our industry’s litigation-obsessed operating environment is that safety can sometimes be compromised to reduce liability exposure – at least in theory. One blatant abuse of this trade-off in the school bus community is the practice of instructing students to arrive at their bus stops before the bus – effectively negating the ability of the bus’ “moving traffic signals” to facilitate their crossing. When a schoolchild is struck by a vehicle other than the school bus, however, the child is often at least partly at fault. Particularly in the four states where the plaintiff being one percent at fault effectively dismisses the case against the defendants, this policy can be a clever ruse – where it works.
The transit industry often employs a different ruse sometimes referred to as “passenger choice.” Under this policy, a wheelchair user can decline the driver’s efforts to secure his or her wheelchair to the vehicle floor, and the driver will have to transport that passenger whose seat is now free to roll around in response to inertial and centrifugal forces.
Ignorance and Irresponsibility
Here is a scenario: An able-bodied passenger boards your coach carrying an fold-up, aluminum lawn chair. He informs the driver: “Listen: I want to ride, in the aisle, in my lawn chair. But do me a favor, OK? Before you zoom off, give me about 10 seconds to plug the wheels in.”
What responsible bus or coach driver would let a passenger do this? The appropriate response would be to order him off the bus and notify the dispatcher. If the passenger refused to use a seat bolted to the floor, whose every anchorage was designed to withstand several thousand pounds of g-forces in a front-end collision, and then refused to get off the bus, the dispatcher should notify local law enforcement personnel, and have him physically removed.
This analogy is hardly far-fetched. In the late 1990s, a handful of wheelchair users in Denver actually filed a class action lawsuit (Taylor v. Denver RTD) for the right to ride with their wheelchairs not secured. When the Federal Transit Administration’s Office of Chief Counsel was asked to rule on it, it ruled not only that such a right was consistent with the ADA but, further, that a transit agency could choose either of the following options as long as it was codified in formal, written policy:
- Place the wheelchair back onto the lift, and lower the chair and its user back down into the snow.
- Honor the user’s wishes, and take him or her to his selected destination.
Ruses and Liability
For cow-towing to the perceived backlash from a miniscule sub-minority, the FTA should not be forgiven for this ruling. As a safety matter, such policy is indefensible. But as a liability matter, it is a clever ruse: When a driver fails to properly secure a wheelchair, and its occupant is killed or maimed as a result, all the driver need do is testify that the passenger “told me not to secure it.” Of course, this driver’s claim must be believable. Otherwise, under the policy of “system choice” (i.e., where the driver can deny this passenger ridership), this defense would be moot: Under system choice, wheelchair users are not permitted to ride unless their chairs are secured. Whether or not the Federal Transit Administration ruling was designed to create a liability loophole for its grantees is open for debate. Because no ruling on this subject has yet been promulgated specifically for motorcoach service, one suspects that motorcoach operators possess similar options.
Irrespective of whether or not one cares about safety apart from liability, it is important to know that “passenger choice” does not always work even as a liability ruse. It cost one transit system I know of millions – for a passenger who was already a quadriplegic before the incident.
Temptations and Resistance
Every honest forensic expert reviews cases for both plaintiffs and defendants. Experts who are active members of various transportation communities can help them by sharing both sets of experiences, as I do. As the plaintiff’s expert in a case where an unsecured motorized wheelchair was not secured and tipped over during a turn, I literally found scores of errors and omissions. But instead of shoveling the almost boundless negligence past the jury’s eyes and ears, I advised my counsel to focus simply on the recklessness of the defendant’s wheelchair securement policy.
Anticipating my cross-examination, I was salivating at the chance to relate my lawn chair analogy. The defendant’s attorney never gave me this chance. Instead, he began his cross-examination by projecting a slide citing a passage from the ADA stating that “the driver may ask…” He then asked me if this quotation was indeed from the ADA.
One of the cardinal rules about trial testimony is to never be cute, much less be a smart-ass. Until that moment, I had been faithful to that rule. But this question was irresistible. I replied, “Yes, but asking about something like wheelchair securement is not like asking a passenger, ‘Hey, would you like a cookie?’”
To suppress their outbreak of laughter, the judge had to gavel the jury into silence. The defendant’s counsel never asked me another question. Instead, he slunk back to his table, and slouched down in his chair. Several days later, the jury awarded the plaintiff $2.1 million.
Lessons and Leeway
The lessons demonstrated by this case are an important ones to which all transportation providers – and their underwriters and attorneys – should pay close attention:
- Just because a policy complies with regulations does not mean you are immune from liability when you follow it. The policy must make sense on its own terms. If you create or follow policies so stupid that the average juror will recognize them as such, do not expect them to excuse you when these same policies kill or maim a passenger. If and when jurors recognize that your policies deliberately increased the passengers’ risks in order to reduce your perceived liability exposure, it may be hard to contain the monetary limits of their retribution.
- Wheelchair users are not people to be feared. They are simply people whose well-being should be safeguarded. They are also people who should be afforded the same clarity of thought given to other passengers. The people to be feared are jurors.
In many states, blatantly reckless policies may trigger the awarding of punitive damages. This fountain of monetary damages is often controlled exquisitely by a dozen or so individuals who rarely exercise such power in their daily lives, and who are likely to take advantage of the unique opportunity that sitting on a jury affords them to “straighten things out” and “send a message.” You do not want to give them this opportunity.
Safety and Liability
In order to be liable, you must make an error or omission. The solution is not to. Focus on taking care of safety. If you do, liability will generally take care of itself. The corollary to this principle is both obvious and hopeful: The more money you spend on management and drivers, the less you will have to spend on lawyers and payouts.
If and when an accident becomes a lawsuit, the passengers may be held to an ordinary standard of care. Sometimes not even that. But as a common carrier, you will be held to the highest standard of care. So when it comes to safety, don’t let the passengers make the decisions. Make sure you and your drivers do.
If you think you can outsmart a jury, you had better hope for a really dumb one. Myself, I think highly of juries. After all, juries are really just us.