All technologies cannot be retrofitted, even though they provide significant safety enhancements. One example is the retrofit of ABS brakes — although, at this point in our evolution, practically every vehicle has them. In contrast, every brand of hybrid suspension system can be retrofitted to vehicles of almost every size and type that does not have a pneumatic suspension system (and, thus, does not need a less-effective hybrid one).

The principal barrier to retrofitting, which is largely cost-related, is the reluctance of most states to require it. One exception is Missouri; there are few others. Because most new technology, analog or digital, provides only a small leap in enhanced safety, the lack of requirements for retrofitting in most states is relatively harmless. But there are exceptions, particularly in the school bus community, and most dramatically with respect to crossing equipment: One must remember that facilitating safe crossing is essentially the rationale for deploying 450,000 school buses in this country to begin with.

The evolution of crossing equipment technology combined with the failure to retrofit it also provides a glowing illustration of why retrofitting is so important. This is because as crossing equipment evolves, the procedures for using it evolve along with it. For example, with the addition of amber flashers (a NHTSA mandate in the mid-80s), school bus drivers no longer engage their red flashers a certain distance before arriving at the stop — as they did when red flashers were all they had. Instead (with the exception of California, in which no changes in procedures occurred despite the requirement, on all new school buses, for amber flashers), drivers must now engage their amber flashers a certain distance before reaching the stop. Once they have stopped, or are relatively distant from the bus, the driver then engages the red flashers. Finally, when all vehicles have stopped in all approaching directions or are too far away to matter, the driver then directs the student across the street. Unfortunately because some states have many old buses (California, Oregon and Washington suffer the most from this, because until 1991, before the demise of Crown and withdrawal of Gillig school buses from the market, these were the only two buses that met these states’ specifications, and they often last for 40 years), motorists cannot be expected to know the different procedures for each type of bus. This problem is compounded by drivers operating “four-way” buses (i.e., those with only a red flasher at each upper corner) try to compensate by using their caution lights (i.e., engaging both turn signals simultaneously) as a substitute for the ambers — and in the process, creating yet a third type of bus insofar as its flashers. In this operating environment, motorists have no chance to know what these various signals mean, especially when there are no procedures at all for the third, “hybrid” variety.

Finding a defendant liable for failing to retrofit its vehicles when there is no requirement to do so is a challenging task. Fortunately for plaintiffs’ attorneys, such a failure is usually only one among dozens in a typical accident (e.g., a crossing accident) where the retrofit failure came into play. With types of vehicles other than school buses, the challenges of blaming an incident on the failure to perform a retrofit are more daunting.