While each accident and incident may have its unique characteristics, the lion’s share of them can usefully be classified into roughly two dozen or so categories (23 of these are described by accessing the links below, many along with photographs illustrating them).
Within these broad, often-overlapping categories, a typical public transportation incident may involve dozens or scores of errors and omissions. Yet while many or most of these errors and omissions may contribute in some way to the incident, often the elimination of only a single one of them would likely have prevented or mitigated it.
Far more interestingly, and often surprising to most attorneys who are usually not experts in the field, most of the obvious characteristics of an incident are mere symptoms of more deeply-rooted causes. For example, many attorneys immediately think of training as a principal cause of driver error, whereas, in contrast, training is actually one of the few things that many sectors within the public transportation field actually provide well. Of course, training has no meaning unless it is (a) understood, (b) retained and (c) applied — and all three of these elements rarely are. Otherwise, far more typically — and the underlying cause of almost half of the nearly 500 lawsuits in which I’ve been engaged — has been that the schedules were too tight! This is particularly true with transit service, since even highly subsidized, the pressure to provide adequate “coverage” and “frequencies” (i.e., the time between each bus passing by a stop) within an environment of high costs and funding shortages translates into schedules whose “running” times (i.e., the actual time needed from one end of the route to the other) is, in real life, significantly longer than the “cycle” time depicted on the schedules distributed to the public. As a consequence, the “recovery” or “layover” time at the end of each run is an illusion — and this illusion has become increasingly exaggerated as union strength and work rules have become diluted, and particularly following the promulgation of the Americans with Disabilities Act (ADA), in 1991, since the addition of a single wheelchair user to a route can easily add 10 minutes or more to the vehicle’s already-tight running time (the chair or scooter must be loaded via a lift or ramp, it must be positioned in a “securement” area, it must secured to the vehicle at four points, a lap and shoulder restraint must secure the user into his or her chair, and all these steps must be reversed at the destination or drop-off point). So when a wheelchair is added to a route, weather is inclement, or traffic heavy, recovery time not only disappears, but the driver is doomed to hour upon hour of constant driving, creating a dangerous environment of fatigue, and encouraging the driver to commit a number of risks that often translate into injury-related incidents in order to “catch up.” Also, unlike all or most other modes, a transit driver almost never knows when he or she is likely to come upon a wheelchair user — and often “shaves” minutes and seconds from his/her running time in anticipation of having less of it. Among the most common “tricks” or approaches to reducing running time:
- Drivers operate their vehicles too fast for conditions
- Drivers do not secure wheelchairs
- Drivers do not belt wheelchair users into their chairs
- Drivers stop on the wrong side of the intersection, depending on whether they are “caught” in the light or “beat it”
- Drivers pull out before a passenger can reach a point of “seating or securement” (i.e., a vertical or horizontal stanchion)
- Drivers accelerate or brake too severely
- Drivers prematurely close doors on passengers, raise or lower the “kneeling feature” with passengers still on them (thus transforming what the passengers expect to be a stepwell into a virtual escalator), or fail to “kneel the bus” when they need to
These are all instances of what I call “safety compromises,” and I delve into these issues further on a website for attorneys and colleagues in the field of public transportation that I developed as a companion to Transportation Alternatives.
In paratransit service (i.e., commonly door-to-door or curb-to-curb service) — particularly the “complimentary paratransit service” required under the ADA and non-emergency medical service — scheduling has been increasingly performed by software programs whose “developers” are in competition with one another to keep the schedules tight (optimizing efficiency and lowering costs) in return for creating risks similar or analogous to many of those that exist in transit service.
In sharp contrast, school bus accidents are almost entirely different, since most school bus-related fatalities and serious incidents occur when the passengers are not even on the vehicle – but in most cases, crossing to or from it, and often struck by third parties passing the bus’ engaged “red flashers.” However, school bus crossing practices are designed to factor in the likelihood that motorists will ignore the flashers and “pass by,” often striking a student not properly directed across the roadway by the school bus driver. So beyond a school district’s “deep pockets” (compared to those of the motorists whose vehicle most often strikes these victims), some aspect of the school district’s driving, management and/or policy-making is almost always the genuine cause of the incident, even when the school bus is not the “striking vehicle,” and does not even appear on a police accident report. Further, as scheduling software increasingly selects bus stops, and fewer and fewer live Earthlings ever examine them for safety or any other reason, crossing incidents have become rampant – comprising more than an eighth of all the cases I do.
Overall, the Achilles’ Heel of public transportation is an abysmal failure to monitor service properly. Drivers’ logs — of which I personally reviewed more than 200,000 during the decade in which I directed the operation of my own 70-vehicle system transporting 1100 physically and developmentally-disabled individuals of all ages (except school-age), are rarely if ever reviewed, since with the advent of digital technology, management personnel with a genuine “feel” for operations have been replaced by an army of computer geeks, who rely on the software for a range of functions which rarely includes any monitoring. Management is difficult without monitoring: If no monitoring exists, there is no basis for evaluation. With no evaluation, there is no basis for supervision. And with all three of these missing, there is no basis for enforcement. As a consequence, entire operating functions are missing. This helps to explain why I have been involved in 19 cases involving passenger molestation or assault — one of the most common paratransit and special education (school bus) scenarios after wheelchair tipovers and negligent lap-and-shoulder belt securement.
Negligent hiring and retention are another paramount theme endemic to a great many incidents whose principal causation lies elsewhere. Shortcomings in these areas stem from the dynamics of an industry in a country with declining values, a shrinking economy, and a shift of wealth to fewer corporations and individuals — and within these dynamics, a reluctance to pay drivers anything close to a living wage, and the understandable drivers’ shortages that are commonplace throughout the industry. Shortages are even more severe in the non-emergency medical sector, because most drivers use this mode as a steppingstone to positions as more-highly-paid fire fighters or paramedics.
Also, while some sectors of public transportation (e.g., transit and motorcoach) are clearly more sophisticated than many others (e.g., taxi, shuttle and non-emergency medical transportation), this sophistication does not translate into enhanced safety. Part of this is because transit, full-size school bus and motorcoach vehicles are much larger, more difficult to maneuver, and contain far more complex features (air brakes, pneumatic suspension systems with kneeling features, interlocks, etc.), not to mention the challenges of mirror usage that increase with vehicle size. Further, the more digital operations become, the further removed from human oversight they become, and the less likely important operating elements are monitored.
Attorneys are also surprised, if not astounded, to discover how few things in public transportation are regulated. Even critically-important aspects of many or most services are barely regulated — often for political reasons. As an example that reflects the considerable number of catastrophic motorcoach accidents, several years ago the motorcoach industry lobbied heavily against revisions in the Hours-of-Service regulations initially promulgated in 1937, and as a consequence, the Federal Motor Carrier Safety Administration simply “gave up” on forcing it down their throats, since 99%+ of their constituents — the trucking industry — embraced these changes, as did Canada’s motorcoach sector. Otherwise, some modes are almost totally unregulated, with the exception of a handful of administrative requirements that ostensibly ensure that drivers do not have a plethora of accidents or moving violations in their recent past, and are not former child molesters. In contrast, vehicles are far more comprehensively regulated than are their drivers, and their failures (e.g., insufficient tire tread, under- or over-inflation, faulty lights and other electrical appendages, defective or poorly-adjusted brakes, mirrors out-of-adjustment, etc.) are more telltale. But most aspects of most services’ operations are governed merely by “industry standards.” Yet in rare modes, like hotel shuttles or small social service agencies with a single vehicle or two, industry standards barely exist.
Another curiosity is the inconsistency, from state to state, about which modes are considered “common carriers,” and as such, their management and drivers are held to “the highest standard and duty of care.” The principal criteria for a common carrier are that (a) the service is available to the general public, and that (b) the passengers pay a fare. These criteria recently led, in California, to an amusement park ride (Gomez v. Superior Court, 2005) and a ski lift (Squaw Valley v. Superior Court, 2005) being common carriers, while in many states, insurance carriers and their counsel argue that modes like school buses and some motorcoach services are not common carriers. The ADA also adds a curious twist to this requirement: Under the ADA, a contractor “stands in the shoes” of its lead agency — a provision inserted into the Act to ensure that transit agencies do not dilute their obligations by “contracting them out.” Thus all complementary paratransit services are common carriers regardless of whether they are operated by public agencies or private contractors.
Finally, despite other more evident symptoms, a surprisingly large percentage of accident and incidents are fatigue-related. Both the National Transportation Safety Board (NTSB) and USDOT’s Federal Motor Carrier Safety Administration (FMCSA) feel that close to half of all catastrophic accidents are in some way fatigue-related, whereas the information-sharing and lobbying organizations serving the motorcoach industry (most importantly the United Motorcoach Association and American Bus Association) claim that fatigue is a factor only in a tiny percentage of accidents and incidents. In fact, because the requirements for it are fuzzy, most bus and coach drivers engaged in incidents are not administered post-accident drug-and-alcohol tests unless their vehicles are involved in a physical collision (whereas only a tiny percentage of all public transportation-related incidents involve a collision). Regardless, what regulations that do exist to govern driver fatigue in the United States (i.e., the Federal Motor Carrier Safety Regulations) address only the duration of one’s driving, while ignoring completely the time during which the trip is provided with respect to the driver’s normal sleep-wakefulness cycle, or “circadian rhythm.” As a result, as long as minimal duration-related requirements are met, a professional driver can operate a vehicle when his body would normally be sound asleep.
Many of these parameters, along with others, are explored in the overviews below. Emphasis in these overviews is often placed on technological aspects of the various modes and services which may not be so apparent to someone outside the field — even if he or she is an excellent and experienced attorney. For such reasons, the typical “parrot” or “shill” serving as an expert witness, who is willing to do an attorney’s bidding, and who is more often than not familiar only with some details of a single mode, much less only with either the operating or automotive side of the service (rather than both, in all modes, as I am), bears the risk of not genuinely understanding the nuances of a case, much less its principal causation. While style, presentation, intelligence and articulateness matter, they do not trump knowledge, since most lawsuits taken seriously are won or lost mostly at the initial, analytical stage of a case, not on the witness stand. For such reasons, and because effort itself matters more than any of the factors noted above, the attorney who engages an expert at the outset of a case (permitting him or her to examine the vehicle, develop recommendations for discovery and, where helpful, even outline the questions and question-strings for key depositions) — all before depositions are taken —enjoys a serious advantage over his or her opponent, and stands a far greater chance of both victory and either higher settlement and damage awards or minimal settlement or damage awards (depending on which side of the case this attorney and expert are on) than does an attorney who tries to think through the case and then selects an expert simply to argue his or her theories.
An overview, often illustrated by actual case photographs (obviously not identified by the case or anything related to it), of most common accident and incident scenarios are accessible through the 27 links below. The reader should keep in mind, again, that many accidents and incidents involve multiple errors and omissions, and as a result, can often be categorized by a number of the classifications cited below.