No, this article is not about pedestrians and bicyclists, even though they are common victims of many bus and coach-related accidents and incidents. Instead, “cycle” time represents the time identified for the trip on a bus or coach schedule, while “running” time represents the actual, on-the-street time it takes the vehicle to travel the scheduled trip or run.
Common sense suggests that running time should be less than cycle time. The subtracted difference is commonly referred to as “recovery” or “layover” time. Yet the number of incidents that occur when recovery time is too limited is astonishing as a safety matter, and costly as a liability matter if and when the victim’s attorney or expert finds it related to the incident. This revelation is even more damaging when they discover that running time exceeds cycle time.
The Transit and Paratransit Blues
The most widespread illustration of insufficient recovery time occurs in demand-responsive paratransit and special education services. Of the nearly 50 lawsuits involving negligent wheelchair and/or passenger securement in which I have been involved, I found the vehicle running behind schedule in almost every case. Failing to secure, or properly secure, a wheelchair is an clever way to shave entire minutes from running time. But the reasons for insufficient recovery time encompass a surprising range of errors and omissions apart from drivers simply taking too long to “make the schedule.” Among the causes are inadequate software travel time algorithms, lead agency ignorance and paranoia (hiring one contractor to make the schedules as efficient as possible and another one to operate vehicles according to them), regressive driver assignment, and poor system design (e.g., an operating structure and organization poorly-equipped to assist drivers, or “TX” passengers from, vehicles running behind schedule). Failing to anticipate traffic or foul weather rarely provides a justifiable excuse for insufficient recovery time. This is because such contingencies are the very things that sufficient recovery time is designed to include.
In contrast to those of demand-responsive services, fixed route transit schedules often contain insufficient recovery time because adding more of it translates into the need to add extra vehicles to the route. As a simple illustration, a bi-directional route with 55-minute running times, and operating on 30-minute, clock-face headways, can be covered by two vehicles running in each direction: At the end of each run, the driver would have roughly five minutes to recover before heading out after the previous bus that departed 30 minutes earlier. However, when a driver encounters a single wheelchair occupant – and the resulting 10 minutes of loading, securement and unloading time associated with him or her – the driver will not only overshoot five minutes of recovery time entirely, but depart behind schedule on the very next run in the opposite direction. To remedy this situation, the system would either have to add another vehicle in each direction – multiplying driver- and vehicle-related costs by 50 percent – or revise the route to operate “off clock-face.” In this simple example, one can begin to understand the heavily-subsidized transit industry’s resistance to wheelchair accessibility. Adding weather, traffic and protective bargaining to the mix, one can also understand the industry’s frustration. These dymanics have combined to generate more than one ADA-related class action suit – including two of the largest, Beauchamp v. LACMTA and Martin v. MARTA – where drivers routinely passed by bus stops at which wheelchair occupants were awaiting pickups.
Making Up for Lost Time
While the challenges which insufficient recovery time create for fixed route transit and paratransit operations are understandable, drivers’ efforts to safeguard or expand their recovery time manifest themselves in a surprising number of motorcoach scenarios:
- An intercity carrier’s 1500-mile route encompassed 26 hours and three driver changes. The son of a diabetic passenger whose insulin withdrawal began at the first rest stop encountered repeated resistance from drivers to his request to retrieve his mother’s insulin cartridge from the luggage compartment, and during the one time he was permitted to even search for it, he was rushed and could not find the appropriate suitcase. About an hour before reaching the destination, his mother went into insulin shock, experienced seizures that jack-hammered her head into the passenger window, and suffered a heart attack.
- Another charter coach slammed on its brakes and swerved violently to the left to allegedly avoid striking a car which the motorcoach driver testified had, immediately before, skidded across three traffic lanes in front of him and rebounded back into his travel lane after striking a freeway guardrail (all this during “heavy” traffic). The phantom car in the motorcoach’s obvious tailgating incident was never found. But before he returned to his seat after asking the coach driver a question, a passenger was thrown forward into the windshield and pitched into the stepwell.
While most jurors experience the frustrations of heavy traffic, they also know that most vehicles without cowcatchers cannot move those in front of them out of the way, or push them farther along. Similarly, these jurors have all experienced the maniacs who try to induce them into making lane changes by “riding up their bumpers” with their high beams ablaze. As motorists, these jurors tend to not like such treatment from vehicles 10 times the mass of their automobiles, and tend to sympathize with their victims. Punative damages provide them with a means of “getting even.”
Ugly and Uglier
Some things drivers do to gain seconds or nanoseconds of recovery time distance them considerably from any remote sympathy of most jurors:
- Attempting to squeeze through a light, a paratransit driver followed a vehicle (turning left moments before) too closely, and ran over and killed a pedestrian whose sightline to the paratransit vehicle, and its driver’s sightline to this pedestrian, were blocked by the presence of the intermediate vehicle passing through the crosswalk.
- Caught in a red light on the near-side of an intersection with a designated far-side bus stop, a transit driver discharged his elderly passenger in the travel lane alongside a cordoned-off construction area, informing her that this was her “last chance” to alight at this stop. After she did, and managed to avoid a swath of construction debris on her way to the curb, she promptly stepped in a patch of freshly-poured cement.
- In separate, similar incidents, two schoolbus drivers raced through a construction area and over a speed bump, in the process fracturing the bones and spines of their respective wheelchair occupants, both of whom had Osteogenesis – “brittle bone disease.”
This last case illustrates the legal tenet that “one takes the victim as he finds him” – commonly referred to as “The Eggshell Doctrine.” Especially with such victims, jurors do not sympathize with defendants whose drivers shave the amount of time from their runs that is often measured by a stopwatch.
Ugliest and Most Ugliest
Some cases cannot help but inflame jurors, a genuine risk if the victim’s counsel can evoke punitive damages:
- Before the bus completed its left-hand turn from a dead stop at a red traffic signal, three transit passengers were thrown through the closed rear door into the street. When I rode this route during the mid-day, off-peak period, I found its “running” time to be 20 minutes longer than the time allotted to its peak-hour performance (i.e., its “cycle” time) on the printed schedule. Constantly “chasing their tails,” drivers had to drink their meals through a straw, and literally embezzle runs to take bathroom breaks at facilities off the route alignment, since no such facilities existed at layover points. These deviations not only overloaded buses and their suspension systems on subsequent runs – effectively the cause of the incident – but put these runs even further behind schedule (to the degree they could even maintain one under ideal circumstances), making their drivers even more fatigued and stressed than they already were.
- In response to one ADA-related class action suit related to the trip denials and on-time performance problems of a complementary paratransit system, the software developer “tweaked” the travel-time algorithm from 35 mph to 25 mph. One can understand the operating chaos – much less the unachievable on-time performance – of the original schedules forty percent tighter than those following this modification. Those accident victims’ attorneys who have discovered this must be salivating.
- A motorcoach driver with a complete day to layover at a hotel resort meandered his coach through the hotel grounds and discharged his passengers beneath an icy canopy across from the lobby entrance instead of onto a cleared ramp a few feet from the lobby door on the same side of the driveway. While the driver claimed that he got lost on the labyrinthine hotel grounds, I reasoned that his motive was, instead, the desire to unload luggage beneath the canopy across rather than drag it around the rear of the coach in a light snowfall. I argued as much in my Report (for the plaintiff). Two days before my deposition, I received a copy of a statement in which the driver claimed he had been traveling to this hotel regularly “since the Sixties.”
This last case illustrates the fact that drivers may shave operating time from their schedules when their recovery time is not only ample, but bountiful. This particular driver had more than a full day’s leisure before hauling his passengers home. Jurors are not likely to be sympathetic to defendants whose drivers abuse their responsibilities so that they can play a few more hands of poker or watch another sitcom.
Inflaming the Jury
In the world of motorcoach transportation, where fatigue is a driver’s second-worst enemy (the obvious top vote-getter is low wages), a driver’s conscious and unconscious efforts to maximize recovery and layover time are at least understandable. And when the trade-off for it is not having to drive while exhausted, it may even be justifiable from a driving perspective. But it is not remotely justifiable from a system perspective. Where insufficient recovery time provides a motive for driver errors and omissions, jurors are unlikely to be forgiving of their employers.
Because blame for system negligence lies above the driver in the labor-management hierarchy, where better-paid staff enjoy less physically-demanding jobs and less grueling work shifts, the doorway to punitive damages may not only swing wide open, but invite jurors inside. Where these jurors are set loose to exceed the express or implied cap on direct or compensatory damages, they may turn up the dial wildly. After all, the essential purpose of punitive damages is to express outrage beyond that which direct damages can accommodate, since the latter are designed and directed to simply compensate plaintiffs (or their families or heirs) for their losses.
Most jurors also do not like to see photographs containing a lot of blood. But they like it even less when these photographs depict the victims also covered in snow or cement. Such findings tend to make them long on anger and short on sympathy.