The transformation of fixed route bus and rail services to better accommodate disabled passengers and the creation or modification of paratransit services to supplement them have placed a strain on transit agencies from a number of perspectives:
- Overextending already-limited operating resources has led to reductions in transit service (e.g., increased headways) and, on occasion, to the elimination of selected fixed route lines altogether. One could argue – and there may be evidence to support it – that increased costs from ADA obligations have translated into lower drivers’ salaries, or at least compounded the degree to which they have been outstripped by higher wages in other economic sectors.
- The regular or irregular loading and unloading of wheelchair occupants on fixed route service gobbles up recovery time – in some cases causing routes to run late, and adding to driver fatigue and stress. Additional buses added to provide adequate recovery time, and/or ensure that system capacity is not diminished by longer running times, increase operating costs.
- Liability exposure has spiraled almost exponentially – in both transit and paratransit service. Among the most costly scenarios are the killing and maiming of wheelchair occupants as they and their improperly- or un-restrained chairs tumble about within the passenger compartment following excessive acceleration, deceleration, turning and braking. Priority treatment provisions place elderly and/or ambulatory disabled passengers in the bus’ most vulnerable positions – side-facing seats or forward-facing seats immediately behind them. Increased headways, leading to capacity problems, have increased incidents where such passengers ride as standees.
- Class action suits related to ADA violations either directly (e.g., drivers skipping stops where wheelchair occupants await) or indirectly (e.g., buses cannot accommodate wheelchair occupants because of overcrowding – including the problem of moving standees from securement areas) have compounded planning, system design and operations, and have often led to settlements more demanding and disruptive than the problems which led to them. In response to cases which may fairly be described as lunacy – including Taylor v. Denver RTD – some transit districts now permit wheelchair occupants to ride when they refuse to let drivers secure their chairs – a reckless policy which may be indefensible in tort suits, especially if the defendants cannot prove that the passengers refused securement.
- The responsibility for transporting disabled passengers with often unique needs and problems has undoubtedly increased driver fatigue and stress – apart from recovery time problems and its uncertainty from run to run. These responsibilities have triggered a variety of dysfunctional responses in fixed route service, ranging from the avoidance of heavily wheelchair-saturated routes in run selection to the contracting of routes most heavily used by wheelchair occupants and whose recovery times are most often compromised as a result.
- The fear of reprimand, discipline and firing for safety-related errors and omissions is so pervasive that many drivers of both fixed route and paratransit service do not even report incidents, but rather, try to cover them up. Unfortunately, one salient characteristic of almost all incidents is that they come with witnesses. Eventually, these evasions catch up with transit agencies, contractors and insurance underwriters, with serious consequences in pricey damage awards.
Little in public transportation is as challenging as transporting wheelchair occupants with unique needs, and often unique chairs. In fixed route service, few of these individuals ride with the same driver from day to day, and many of their trips are not predictable. In paratransit service, the provision of load upon load of them, traveling in all directions, with last-minute, one-of-a-kind trips dispatched into already-tight schedules, compounds the difficulty of their transportation. A common theme in many or most transit and paratransit accidents is that the vehicles were running behind schedule. Such a finding by the victims’ attorneys (or their forensic experts) signals doom at the trial level, and may add significantly to the need for settlement, not to mention its costs.
The task of transporting disabled passengers, particularly in wheelchairs or scooters, is demanding for even career drivers. The task can be overwhelming for new ones:
- On his first day of solo operation, a paratransit driver picked up a wheelchair occupant 90 minutes behind schedule, spent an hour trying (unsuccessfully) to secure her chair, got lost, traveled in the wrong direction down a freeway ramp, made a U-turn at the bottom, scraped a guard rail, ignored repeated calls from his dispatcher, ignored pleas from his passenger, disappeared from radio contact altogether for 90 minutes, and finally reached the passenger’s home almost six hours after the originally-scheduled pickup time. In the process, the passenger and chair were jostled so badly that she sustained bruises, her urine bag broke (scalding her legs with uric acid), her feeding tube disconnected, and she missed taking five of her 29 scheduled medications. Needless to say, this case settled handsomely.
Such chaos is not relegated to new drivers:
- Another paratransit driver, with nearly two decades of experience in medical evacuation, watched a passenger wedge his electric scooter, obliquely, between the lift gate and wheel well. When he allegedly declined her request to reposition it, the driver left his scooter covering part of the rear securement track, and secured it at only the left rear and single front wheel positions. Because the shoulder belt was designed to attach to the waist belt, and the waist belt to the wheelchair belt, the passenger remained unsecured even though occupant restraint system was draped over her. When the van stopped short and/or turned sharply, the scooter and passenger tipped over, breaking loose the passenger’s hip replacement, from which he eventually died.
Such mishaps are also not confined to paratransit service:
- After loading a wheelchair occupant via the lift, a shuttle bus driver failed to secure both her chair to the vehicle and the passenger into her chair. When the vehicle accelerated, the chair flipped over backwards, breaking the passenger’s neck. The driver testified that this was the only wheelchair occupant he had ever transported.
- Another wheelchair occupant was thrown onto the bus floor as it turned too sharply around a corner, and her partially-secured, manual wheelchair flipped over sideways. Also not secured to her chair by the occupant restraint system alongside it, the passenger spilled out onto the floor.
Such incidents have been repeated, in almost endless variation, in the past decade. Their causation often involves multiple errors and omissions. One theme which weaves through many such incidents is the fact that the driver had little experience with wheelchair transportation and its elements – driving, loading, unloading and securing chairs (or scooters) and their occupants.
One factor which clearly contributes to this problem is seniority. This practice is hardly confined to largely-unionized transit operations, since some form of seniority in driver assignment is employed in many or most non-unionized operating environments. Further, the problem is also common to paratransit operations, which are largely contracted to private, non-union companies. One cannot conclude, therefore, that the problem is institutional. In contrast, the root of the problem lies in the failure to acknowledge the importance of specific types of experience in the safety equation, and to take steps to apply these principles to driver assignment. The practice of doing this may be referred to as “progressive driver assignment.”
Lessons from Paratransit Operations
During this author’s 10 years directing the operations of a large paratransit system, nothing resembling any of the incidents cited above remotely occurred. The reasons for this were numerous, ranging from coherent system design to the regular review of drivers’ logs. But one factor which unmistakably contributed to this record was the progressive assignment of drivers to runs of increasing complexity and responsibility. Drivers advanced through a series of carefully-regimented steps:
- Drivers rode along, as observers, with experienced drivers
- Drivers served as attendants
- Drivers operated loose routes with only ambulatory passengers, while observed and supervised by training instructors or “senior drivers”
- Drivers operated tight routes with a mix of ambulatory and non-ambulatory passengers, while observed and supervised by senior drivers doubling as navigators and attendants
- Drivers operated in solo service on loose routes with only ambulatory passengers
- Drivers operated loose routes with ambulatory and non-ambulatory passengers
- Drivers operated tight routes with ambulatory and non-ambulatory passengers
- Drivers served as “cover” drivers – assigned to routes otherwise left vacant by vacations, sick-leave, turnover, expansion, system change or other variables
- Drivers served as senior drivers – monitoring, evaluating and supervising the performance of new drivers
Following this progression, those drivers eventually assigned to challenging routes had assimilated a considerable range and depth of post-training experience. These experiences improved upon driver performance skills developed from layers of pre- and post-service training in a range of highly-interrelated disciplines, including:
- defensive driving
- loading and unloading
- wheelchair securement
- passenger securement
- map reading and service area orientation
- CPR and seizure training
- emergency first aid
- radio communications
- vehicle handling and care
- passenger handling and care
- passenger management
- emergency evacuation
Because drivers executed most of these procedures routinely (CPR and evacuation were the exceptions), their experiences not only reinforced their pre-service training, but refined and enhanced it. So while experienced drivers undoubtedly made minor errors and omissions, major ones – like failing to secure a wheelchair or passenger – were rare: For drivers who had progressed to handle them, such omissions were almost unthinkable.
To accommodate such a progression, of course, a long list of system elements had to be carefully coordinated and synchronized – including bio-sensitive driver assignment. Drivers were assigned to early or late shifts according to their sleep-wakefulness cycles: “Larks” to early A.M. and P.M. shifts, and “owls” to late ones. However, a number of other factors had to be integrated into the mix, and balanced to the degree possible (or reasonable given the complexity of the variables). These factors included:
- Drivers were generally assigned to shifts encompassing the number of hours per week they wished to work (i.e., either full-time or part-time), largely reflecting the drivers’ own special needs (single-parent households with school-age children, attending classes, etc.).
- Efforts were made to match drivers with unusual language skills to those language spoken by the passengers (all of whom were developmentally disabled) – particularly challenging in Los Angeles County where more than one third of households were headed by an individual whose native language was neither English nor Spanish.
- Most drivers were not equally familiar with all parts of the service area.
- Some drivers possessed unusual skills or sensibilities for dealing with certain types of clients, and/or “bonded” with certain individuals with whom other drivers could not.
- To minimize deadhead time and mileage, program start and end times were synchronized: The average deployed vehicle operated 9.5 hours a day (for a school-oriented, split-shift operation) – providing an enormous range of driver assignment choices and work shift lengths.
- To minimize operating costs, the amount of overtime worked had to be minimized by the appropriate pairing of A.M. and P.M. shifts.
- Performance was of paramount concern to the lead agency: As a consequence, more than 90 percent of vehicles operated at full capacity during some portion of their runs – a challenge for a fleet of 11-, 15-, 19- and 25-passenger vans and minibus conversions. To accomplish this, and deliver more than five trips/hour in two huge service areas (Los Angeles County’s San Fernando and Antelope Valleys), schedules were continually modified: Additions, deletions and address changes were made twice weekly, and the entire system’s schedules were overhauled roughly four times a year.
- On-time performance was critical. As a consequence, 99 percent of all trips were provided on-time according to the 15-minute early and late “windows” defining it.
- To optimize performance and minimize ride times, the “core” vehicle was an 11-passenger van which converted to five wheelchair positions or any combination in between. While this flexibility contributed enormously to performance, it also increased the number of runs containing wheelchair occupants.
Despite these other constraints, driver familiarity with the various degrees of difficulty in passenger needs – from those of ambulatory passengers (many had visual impairments, uneven gaits from Cerebral Palsy, etc.) to those using mobility aids like manual and electric wheelchairs – lay at the core of system safety. So the consideration of other constraints was often driven by the need to match driver capabilities with the difficulty of each assignment. Largely as a result, no one was ever injured as the result of wheelchair- or passenger-securement errors or omissions.
In the provision of 2,200 trips per day to passengers who were all developmentally disabled, many of whom were physically disabled, the perfect execution of passenger and wheelchair securement procedures in every instance did not likely occur. And because of the numerous variables involved in operations, and the constant change which comprised the very essence of demand-responsive transportation service, the sequential advancement of every driver through every step of the driver assignment progression was not always accomplished. However, because progressive driver assignment as an approach was so heavily-emphasized and universally-applied, its basic principles were rarely, if ever, violated. This meant that new drivers were almost never assigned to tight routes carrying wheelchair occupants. Conversely, drivers assigned to difficult and challenging routes were almost always prepared for them. Long before a driver was permitted to transport a wheelchair occupant, he or she had considerable experience in the transportation of passengers with far less severe needs. Similarly, drivers were rarely assigned to tight routes before they had opportunities to learn parts of the service area by driving loose ones. Regardless, progressive driver assignment protected the system, its drivers and its passengers from exceptions.
Digital Madness, Safety and Operating Reality
The system described above had the fortune of operating mostly in the pre-ADA era, where a misunderstood obsession for administrivia did not overwhelm principles of safe and productive operating reality and common sense. One important element of this environment involved the system’s balanced use of digital technology. Fortunately, scheduling and dispatching software was in its infancy during most of this era. However, the system would not have employed it by choice even if it had been available. While performance evaluation, client information and numerous other variables were tied together by elaborate, custom-designed software programs, dispatching and scheduling were performed manually (with computer-assisted information). As a consequence, operations were directed by a crew of transportation professionals, not an army of computer wonks.
This balance of analog and digital disciplines paid off constantly as dispatchers, who had absorbed their details, commandeered the execution of procedures involving layers of precise information. When dispatchers were required to “TX” routes – capabilities which lay beyond all or most current-day software programs – they had internalized many of the nuances of passengers temporarily transferred to other vehicles and drivers, and were able to improvise the procedures necessary to not only protect them, but to get them to their respective destinations nearly on time. And as they were more tuned into the nuances of operations, and in constant touch with drivers, dispatchers and other management personnel were able to address safety issues and potential problems long before they translated into incidents or mishaps. Among the information gleaned from this constant, close monitoring – including regular log review – were incidences where drivers’ skills were not optimally matched to the demands of their assignments. These assignments were quickly adjusted before they evolved into safety-related problems – often by simply reassigning drivers to less-demanding routes, assigning supervisors to help them, or by instructing drivers to practice “dry runs” of selected route segments during their non-passenger time. As a consequence, flexibility in driver assignment also became a tool to improve performance.
Labor Management Issues and Opportunities
Apart from their poor performance, a curious feature of most post-ADA paratransit systems is the virtual absence of any logic or criteria for driver assignment. Yet paratransit service can hardly be singled out for this omission: Few transit, pupil transportation or motorcoach operations employ them either. In more than 70 incidents and law suits examined by this author in transit, paratransit, pupil transportation, special education, motorcoach, shuttle or taxi operations, not once were any criteria related to system or passenger safety used in driver assignment.
Misplaced blame for this omission is often focused on the union environment, where driver assignment is governed formally by seniority, and may seasoned drivers select “milk runs.” As noted, most paratransit services are provided under contract. In these services – where practically all the passengers are disabled in some respect – distinctions in driver experience are more exaggerated and more consequential. Because paratransit ridership is not as peak-hour oriented as transit ridership, flexibility in driver assignment choices is far greater. All this provides support for the fact that the absence of progressive driver assignment in fixed route service is not a union issue, but rather, a management issue. Further, it is not even a driver or labor issue: One important lesson from paratransit operations is that the vast majority of good drivers prefer tight, logical and demanding schedules. The failure to provide such routes – or to compensate those drivers capable of driving them – is a generic management problem, not a problem endemic to fixed route or any other type of service. It only becomes a labor problem when drivers, or the institutions representing them, refuse to consider such experience fairly in negotiations or salary determinations. Experience in the public transportation field provides little evidence that such considerations have been rejected by labor.
Like paratransit service, transit operations are imbued with considerable mythology. Among this mythology is the notion that most drivers will choose assignments reflecting easy routes, shift starts, shift durations and recovery time rather than most other factors. Since such dynamics are not inherently valid for paratransit services, it stands to reason they are not inherently valid for fixed route services – even though limited run and shift choices may yield limited rationales for selecting them. More like, few efforts have been to sort out the dynamics which would govern run selections were drivers given choices which genuinely reflected these dynamics, and which compensated them accordingly. The importance of factors like shift start- and end-times, operating division or shift-change locations (with respect to drivers’ homes), number and frequency of wheelchair occupants, and likelihood of at least some recovery time – much less regularly – is obvious. But the absence of progressive driver assignment has prevented most systems, and the industry as a whole, from identifying the respective importance of these variables in the context of a broader framework encompassing other important variables, and a logic for integrating them.
Without experience from such a framework, important interrelationships have also not been identified. One of these is the correlation between driver experience and securement-related incidents – although insurance underwriters have indeed sorted payout data by years of driver experience. Unfortunately, this relationship has been measured primarily by years of service compared to history of prior accidents. This approach is akin to testing buses by “putting mileage on them” – rather than testing each subsystem in the environment most conducive to measure its performance. Such a practice is unthinkable in the evaluation of vehicles. Yet it is standard practice in the evaluation of drivers.
Because other relationships have never been identified, much less thoroughly examined, the correlations among progressive driver assignment, payouts and drivers’ salaries have, similarly, never been established. These latter interrelationships are of substantial importance when one considers that roughly six percent of farebox revenue (the average dips below five percent for those states with immunity statutes for public agencies) is consumed by damage award pay-outs – while, in some systems, they comprise as much as 22 percent.(1) Since drivers’ salaries generally comprise less than 22 percent of farebox revenue (this is somewhat proportional since drivers’ salaries are generally lower in areas where ridership is lower), it stands to reason that, at least in systems with high payouts, accident rates and drivers’ salaries are related, if only indirectly.
These relationships are also worthy of note for another reason: Even if one were to accept the premise that drivers are interested solely in their financial welfare and not at all interested in passenger safety – a premise which seems preposterous and irresponsible – one would have to agree that drivers might be willing to negotiate provisions of their employment which promise to reduce incidents, exposure and pay-outs if salary increases were tied to them. Of course, such self-centered assumptions belie actual operating experience which, in contrast, demonstrates repeatedly that drivers generally care more about passenger safety than their own: An examination of data in this author’s former paratransit system found that 80 percent of “fender-benders” occurred during the 20 percent of mileage which consisted of deadhead. In other words, drivers operated 1600 percent more safely when they had passengers on board than when they were by themselves.
Finally, the transportation of wheelchair occupants and other disabled passengers is not the sole rationale for progressive driver assignment. A full 15 percent of all transit passengers are schoolchildren. Accommodating them requires special skills not only in passenger management, but general alertness and accident avoidance: While these incidents elude many accident statistics, far more bus passengers are killed or seriously injured when struck by vehicles other than the bus itself. This is particularly true for schoolchildren, for whom crossing accidents is becoming an epidemic. In one recent case, a plaintiff was awarded a $7.5M judgment against his transit agency when struck by an oncoming car after crossing to the rear of the bus. In that particular system, drivers were permitted to improvise stops (although not at the time of day in which the incident occurred). While the policy was itself reckless, a better driver would not likely have selected the particular stop in question, much less in violation of system policy. Not only does bus safety sell – as 450,000 schoolbuses deployed in the United States suggest – but bus safety pays.
Drivers, Duty Cycles and Operating Environments
The matching of driver experience and skill to duty assignments would involve a narrow spectrum of factors were all runs or assignments the same. Were they all the same, one could employ a limited number of variables, like circadian rhythms and lifestyles, and match drivers of certain classifications to various shifts, focusing on their start-times and durations. This approach, known as performance-based scheduling or bio-sensitive driver assignment, has proven effective in a range of transportation sectors, in a number of countries, including passenger and freight rail operations, trucking and delivery services. What complicates such approaches in passenger transportation is the fact that all runs and assignments are not the same. As a consequence, the task of matching drivers to runs must take into account degrees of difficulty in many other respects (including some common to freight transportation). A number of such factors could help define the degrees of difficulty associated with each run or assignment. While some of these are obvious, others may be less so:
- Recovery time. Routes with less recovery time, or irregular recovery time, are more tiring and stressful, and provide less opportunity for rest.
- Cycle time. The longer the route, the further apart are periods for recovery.
- Frequency and regularity of wheelchair occupants. The more wheelchair occupants, the more running time is consumed by loading and unloading, the more drivers risk back injuries, and the more they must ask other passengers to abandon seats and/or standing positions in securement areas. The more frequent these occurrences are, the less recovery time. The more irregular the recovery time, the more stressful the entire route becomes – even on runs when wheelchair occupants are not transported.
- Traffic. The more traffic, the more braking, accelerating and decelerating. The more drivers must constantly be concerned with spacing and following distance. And the more intense must be their already-regular and committed focus on defensive driving techniques.
- Stop spacing. Particularly with close stop-spacing in urban areas, buses must constantly pull into and out. Arterial streets with a single travel lane, few or no left turn bays, close stop-spacing, and cars parked intermittently between them, require drivers to constantly weave and merge around other vehicles\C2 waiting to turn.
- Road conditions. Uneven road surfaces, narrow lanes, poor signage (which affects fellow drivers as well), detours, bumps and cracks, potholes, pavement irregularity, traction (particularly in rain, ice and snow) and other sub-standard road conditions make driving more complex and more tiring – and provide yet another set of variables for drivers to watch closely.
- Lighting. Illumination of roads along the route has a bearing on fatigue and stress. Illumination of roads surrounding the route has a bearing on fatigue, stress and performance of other drivers likely to intersect the path of the bus. Bus drivers must not only watch for them, but drive in fear of them.
- Terrain. Driving downhill requires more vigilance and, obviously, more effort (more braking, and more shifting where vehicles have manual transmissions). Driving uphill strains the cooling system – often requiring drivers to make adjustments which may tax their memories (e.g., turning retarders on and off) or their comfort (e.g., turning on the heater or defroster to divert heat from the engine compartment).
- Maneuverability. Tight right turns require considerable skill and, particularly in trafficked areas with lots of pedestrian movements, considerable patience. Problems are compounded for articulated buses, even where the street system accommodates them. While mirror visibility is generally excellent on buses, fully utilizing it becomes more demanding when other aspects of driving must also be watched closely.
- Vehicle size, type and age. Newer buses generally encompass safety and comfort improvements ranging from improved ergonomic driver compartments and better mirror systems to improved suspension systems and accident avoidance technology. Most of these improvements do not lend themselves well to retrofitting. Larger buses – particularly articulated buses – are more difficult to operate even where the street system is designed for them, while vehicle length in general is a factor in merging and weaving. Monocoque buses which uniformly contain pneumatic suspension systems provide higher levels of comfort to both drivers and passengers than body-on-chassis buses with spring suspensions. (Some newer technologies, like the B.F. Goodrich “Velvet Ride” and Mor Ryde systems, provide interesting improvements to comfort.)
- Passenger profile. Schoolchildren are clearly more difficult to manage than other passengers – not even considering the loading, unloading and crossing problems they present. In contrast, elderly and ambulatory disabled passengers often require drivers to enforce priority treatment provisions. Perhaps most challenging is the presence of “gang-bangers,” hoodlums and delinquents – most typically teen age and “20-something” males.
- Loading. The more crowded buses are, the more standees, the longer dwell times, and the more areas for drivers to monitor via interior and exterior rear-view mirrors. Increased loads also mean more boardings and alightings per stop, more passenger problems to monitor (including farebox evaders boarding at the rear door), more passengers to confront (e.g., to enforce priority treatment provisions), and more difficulty in enforcement (e.g., gang members turning up radios to “announce” their stops).
- Crossing conditions. Particularly given a bus’ mass with respect to other vehicles in which it most often collides, the greatest danger to bus passengers occurs during loading, unloading and – in particular – crossing. This danger is especially omnipresent for schoolchildren who are taught to cross in front of schoolbuses. Similarly, elderly and disabled pedestrians may need significantly more time to cross – and may warrant warnings or help from the driver in accomplishing it. Even though most bus-related crossing fatalities and serious injuries involve pedestrians being struck by other vehicles, bus driver performance can help prevent or mitigate them. These acts include adherence to stops and loading zones, mirror clearance, proper curb spacing and warnings – to both passengers and fellow motorists.
These examples are not inclusive. They are meant to be suggestive. Many factors, or their refinements, may also be regional or local in nature, and may vary from one transit district to another. Regardless, considerable variation in route composition and driver assignment exists; some runs are clearly more difficult and demanding than others.
Were one to factor in the variables which make certain runs more demanding than others, one can envision how the application of a framework reflecting these difficulties – and tying them to differences in driver compensation – might draw the most experienced and qualified drivers to the most demanding routes. Without such a framework, other variables – such as shift start-times and shift continuity (i.e., single versus split-shifts), which may or may not have safety implications – will naturally govern driver assignment. As a consequence, the matching of drivers to assignments may have no bearing to safety. In many cases, however, these dynamics may operate counter to safety – when, for example, a naturally early riser is assigned to night or owl service, or a driver with seniority selects an easy route.
As a practical matter, the ability of drivers to perform in most or all of the areas cited above could be evaluated, and in many cases, tested. As an obvious example, two components of reaction time (recognizing the need to brake and moving one’s foot to the brake pedal) can be rigorously tested. So too can be eyesight which exceeds minimum standards, and night vision. Even if only a few cents per hour are tied to differences in performance among certain variables, their accumulation could combine into a meaningful incentive for more skilled, knowledgeable and experienced drivers to undertake assignments where such skills are most needed. Such a framework need not replace others, such as seniority – particularly where a component of salaries already reflects experience. Rather, such a framework could supplement them.
Such a framework also holds great potential as a bargaining tool. It could provide a mechanism through which disagreements over wages and wage structures might be compromised.
Finally, over a period of time, the use of such a framework might provide information which could be correlated with accident rates and pay-outs. If and when such relationships can be established, they might provide a basis for linking accident reduction to drivers’ salaries – either for specific drivers or drivers as a group.
Safety and Liability
One of the best defenses to a tort claim is to demonstrate that the incident occurred despite carefully-thought-out and systematically-applied hiring, training, monitoring, evaluation, supervision, management, maintenance, system design, planning and policy-making. But defendants must earn the right to such a defense by performing according to safe and effective standards and practices. When a wheelchair clangs around in the passenger compartment, or a passenger flies into the stepwell or dashboard, lawyers and their experts often argue that “the thing speaks for itself” (res ipsa loquitur in legal parlance). When a schoolchild is struck down after running into the street in front of or behind the bus, it doesn’t help the defendant when its driver leaves the scene and fails to report it – since a salient characteristic of almost every incident is the presence of witnesses. When the bus shows up as a silhouette on a police accident report, it is of little importance that the driver had decades of driving experience or seniority.
Within the context of personal injury lawsuits, one cannot hide from poor policy-making, poor training, poor management or poor driving. When incidents occur with new drivers, their employers become settlement or trial fodder. When these incidents occur with seasoned drivers, fingers point to the layers of management and policy-making above them. After all, how could experienced drivers make such mistakes if properly directed, trained, monitored and supervised? Sadly, many incidents could have been avoided had drivers been assigned to tasks commensurate with their abilities and experience.
Accident analysis is performed at many levels, with varying degrees of thoroughness, accuracy and sophistication. Particularly where no fatalities are involved, the vehicle collides with neither another vehicle nor a pedestrian, or the vehicle does not leave the roadway (e.g., as in a rollover), the level of analysis depicted in police accident reports is relatively superficial. In sharp contrast is the level of analysis performed by attorneys and their forensic experts. Most interestingly, many accidents reveal dozens or scores of errors and omissions. Many of these errors and omissions contribute either directly or indirectly to the incident. But even where they do not, they help plaintiffs’ counsel “paint a picture” of the nature and quality of the system. And they help characterize the management and operating environment in which the driver was relegated to perform. In certain states, an accumulation of errors and omissions helps form a “pattern of negligence” which leads to the awarding of punitive damages – often well beyond the value of actual monetary damages suffered by the victim or victims.
Within such a litigation environment, narrowing the number, range and diversity of errors and omissions can make a significant difference not only in incidents occurring altogether, but in controlling the damages awarded (or agreed to in settlement) as a consequence of them. Employing a framework for driver assignment sensitive to the safety-related demands of transportation runs and driver assignments can contribute meaningfully to the reduction of accidents and the minimization of damage awards.
Finally, the principles of progressive driver assignment are increasingly being recognized in private, personal transportation provided by non-professional drivers: Many states have “graduated licensing programs” which award full driving privileges to new drivers only in stages – early ones of which involve driving only with an adult supervisor, and driving only during daylight hours. That transit and paratransit systems rarely employ similar devices – while their vehicles transport large numbers of often disabled passengers, and as “common carriers” are held to the highest standard of care – seems hard to explain or defend. In court, it is even harder.
ACKNOWLEDGEMENTS AND DISCLAIMERS
The views expressed in this paper are exclusively those of the author, and in no way reflect those of the American Public Transportation Association or any of its other members.
- “State Limitations on Tort Liability of Public Transit Operations.” Transit
Cooperative Research Program: Legal Research Digest, December, 1994—Number 3, p. 1.