Crossing accidents are among the most common of public transportation accidents and incidents—particularly in school bus and transit service, the two sectors which rely mostly on designated stops. As the school bus community knows, more than half of all school bus-related fatalities and serious injuries occur “off the bus”–in other words, while crossing to or from the bus. In transit service, most crossing accidents occur when buses make improper left turns into crosswalks, often in streets too narrow to accommodate proper turns by vehicles too large for the streets into which they are routed turn.
Transportation Alternatives (TA) President Ned Einstein has served as an expert witness in more than 85 crossing-related lawsuits through mid-2016, helping win tens of millions of dollars for victims and their families. His work on crossing-related accidents was preceded by decades of consulting projects in the public transportation field, as well as forays into bus design and public transportation operations.
Targeted largely to attorneys working on crossing- or turning-related cases (see turningaccidents.com), this portal website aims to provide an overview of the dynamics that cause these largely-preventable incidents. The vast majority of these incidents involve violations of principles so basic that they are inexcusable for even ordinary drivers, much less professional drivers and the agencies and companies that employ them. In simple terms, crossing fatalities and serious injuries are anything but accidental.
Crossing Accidents: Basics
Before getting into the broader issues of liability and causation, some basic facts that may help explain where a particular case lies among the myriad kinds of crossing accidents. The majority of crossing accidents involving transit service occur at intersections (see turningaccidents.com). In contrast, many crossing accidents involving schoolbus service occur at mid-block positions: Schoolbus route designers generally avoid stops at signalized intersections, since the buses contain their own “traffic signals” that may confuse motorists.
One startling finding from Mr. Einstein’s experiences in this accident-scenario is that, In roughly half of all crossing incidents, the passengers’ “crossing orientation” is backwards. School children cross behind the bus, or transit passengers cross in front of it — both places where motorists do not expect to find them. Otherwise, poor bus stop selection often induces crossing at dangerous positions — particularly mid-block stops along high-speed roadways, since all mid-block stops induce jaywalking. In contrast, many transit-related crossing accidents are turning-related rather than stop position-related.
Beyond the depth and diversity of information in this website, the reader can find a wealth of additional information about this subject from the 30 or so articles written about crossing accidents by TA President Ned Einstein (see “Articles and Publications by Ned Einstein” on transalt.com), and other individuals with similar expertise on this subject (see “Articles“). Key among the latter are roughly a half-dozen articles about mid-block stops–a stop position so taboo in reasonable and prudent transit system route design that few articles or studies even mention them. (The “bible” on bus stop positioning and treatment (TCRP Report #19: Guidelines for the Design and Selection of Bus Stops) rarely mentions them, as well–other than to point out that they “encourage J-walking.”)
Because transit and schoolbus service provide multiple stops (compared to most motorcoach services which provide few), it is understandable that these two modes commit, or create the environment for, the greatest number of bus-related crossing accidents. In contrast, other public transportation modes like paratransit, non-emergency medical transportation, special needs schoolbus service, taxi and shuttle service are door-to-door or curb-to-curb–where passengers are almost always picked up and discharged on the same side of the street as their origins and destinations (and usually at their origins or destination). Further, transit and schoolbus services greatly outnumber other modes of transportation. For example, roughly 475,000 schoolbuses (fixed route, and demand-responsive service for special needs students) operate in the U.S., compared to only 33,000 motorcoaches. Of course, the nature of these services hardly provides an excuse for their failures. But these statistics at least place their comparable number of accidents in perspective.
The most thing well-known about schoolbuses is the fact that that are equipped with amber flashers to inform motorists that they are about to stop, and red flashers and one or two “stop arms” (depending on the state) swinging out from the left side of the bus for motorists to see and react to after the bus has come to a stop. Countless studies have found that motorists ignore these signals in almost astonishing numbers. But one fact not well-known about schoolbus service is that crossing procedures are designed to expect motorists to ignore this equipment. Drivers are trained to direct the students across the roadway–but only when they have either brought approaching vehicles in both directions to a stop, or where they are much too far away to reach the crossing area while students are traversing it. This includes stopping approaching and oncoming vehicles—and not letting any students cross until they do.
Regardless, if prevailing case law in your state limits a driver’s or defendant’s duty to protect passengers only when on the bus, such precedents defy industry standards in most public transportation sectors. Schoolbus service provides the most obvious example of this short-sightedness. But these overly simplistic laws also violate the application of Federal laws in many states, where, for example, under Medicare regulations, drivers are required to physically escort every non-emergency medical transportation (NEMT) patient between the vehicle and his or her origin or destination. In most modes, drivers have responsibilities acknowledged as industry standards that lie beyond simply protecting their passengers when on the vehicle.
Sometimes the errors and omissions made by drivers and management are compounded by vehicle quirks and deficiencies. One example is the failure of most state legislatures to require retrofits, This is why in almost twenty states, schoolbuses are still not required to contain crossing control guards. To their credit, some non-schoolbus vehicles (particularly transit buses) are increasingly being equipped with crossover mirrors (not even requirements), although not the huge antennae-type convex mirrors installed on every schoolbus of every size.
Another unfortunate trend that affects crossing accidents (particularly where turns are involved) is the oddly-expanding number of objects that tend to create blind spots–devices such as thicker-than-necessary window posts (or A-pillars), and accessories like passenger-counting devices, enunciators and mobile data terminals mounted adjacent to window posts instead of on or above them. These objects actually provide more clutter that would seem to interfere with right turns. However, the nature of right turns–much slower turning speeds, and the reality that right-turning buses often spend time in the oncoming lane of perpendicular streets into which they much turn–translate into far fewer crossing accidents (although the rear curb-sides of the buses regularly scrap the sides of vehicle parked to close to the intersection). One transit district, Seattle METRO, actually found in a study that both these “blind spots” and insufficient running time in the schedules were causing increasing numbers of left turning accidents (see Seattle METRO). As noted, the victims of these accidents are usually crossing when struck.
On modes with either designated stops or stops presumably-selected by schedulers or dispatchers (transit, schoolbus and motorcoach services), poor stop choices induce crossing at profoundly dangerous places—where better stop selection would not have done so. This is particularly true with schoolbus service. Otherwise, a seminal Swedish study found that children below age 10 do not possess the mere ability to safely cross the simplest of streets (Children in Traffic, Stina Sandels, University of Stockholm, 1968)–even though young children manage to cross most of them without incident. Their ability to process more complex things like negotiating an intersection or understanding signage is far more limited. For example, one’s hearing is not fully-developed until about age 16. For such reasons, stop selection vis-à-vis an intersection and its complexity is often a factor highly-related to both risk and negligence.
Crossing Accidents: Who Is to Blame?
Particularly in schoolbus-related crossing accidents, most public transportation crossing victims are struck by third-party vehicles. Yet, by far, the principal errors and omissions are most often made by school district or their private contractors’ drivers, management, and policy-makers. These realities are often hidden to even diligent attorneys, since the bus whose management and driver’s errors and omissions are largely responsible for the incident are often omitted from police accident reports, including photographs and diagrams.
Otherwise, due to certain legal and institutional dynamics, the understandable tendency of most attorneys is to go after the public transportation provider. This is largely because U.S. motorists are required to carry a pittance of insurance: The majority of them carry only $15,000/$30,000 of coverage – if they have any. At the same time, a “common motorist” is held to an ordinary standard of care. In contrast, the professional driver of a “common carrier” is held to the highest standard and duty of care. And while defendants’ counsel often try, it is hard for any public transportation mode to hide its common carrier status: In California, an amusement park ride (Gomez v. Superior Court, 2005) and a ski lift (Squaw Valley v. Superior Court, 2005) are common carriers.
At the same time, in many states, another layer of institutional and legal requirements limit the exposure of the defendants. In many states, public agencies enjoy immunity caps (e.g., $100,000 in Alabama, or $200,000 in Florida, among others) or similar types of caps on damages. Many public agencies are immune from errors at the planning and system design levels, while not at the “operating” level–an important distinction because management is an operating function. At the same time, about a third of all schoolbus transportation is contracted out to private service providers. Increasingly, fixed route transit services are being contracted out to private companies, as well. The importance of this relationship is obvious: The contracts between these entities universally require the private contractor to indemnify the “lead agency.” At the same time, most of the negligence is often committed by the lead agency–the transit agency or school district, both of which typically design the routes and schedules, and select the bus stops. So it can be a serious mistake to not file against the public agency whose contractor’s driver ran over a pedestrian while crossing (or anything else). Further, in transit service, the public agency almost always owns the vehicles, regardless of which party operates them–since the Federal Transit Administration pays for 80% of vehicles purchased by public agencies. So there are at least two layers of negligent entrustment.
As attorneys in Maryland, Delaware, Virginia, North Carolina and Alabama well know, the comparative negligence formula is one percent. So in a crossing accident, it would seem hard for the victim to not have been at least one percent at fault. The inference is that he or she could or should have at least looked. Yet this shield is hardly impenetrable: In 2015, TA President Ned Einstein helped a plaintiff’s counsel in one of these states win $4.5M at trial, after his client was struck by a transit bus as she nearly completed traversing a crosswalk.
Interestingly, when the facts and evidence are examined, it is often clear that there is no need for the plaintiff to look. For example, a victim may have almost completed his or her movement through a crosswalk. Or the vehicle may have approached the victim from behind. Quite often, regardless of the movement of a pedestrian and a vehicle, there is nothing that the pedestrian could have done. Many crossing victims cannot look, nor should reasonably be expected to. The members of this class include the visually-impaired, hearing-impaired, cognitively-impaired, Alzheimer’s sufferers, dementia patients, and many elderly individuals. Then, of course, there are children.
For many of these reasons, the defense in crossing-related cases is comprised largely of shenanigans. But shenanigans also occur at the operating level. One inexcusable example involves deliberately inverting the students’ crossing orientation: In Baltimore, MD and Osceola, FL, for example, students are instructed to cross behind the schoolbus–and sometimes only after it has receded over the horizon. This liability ruse runs counter to industry standards and practices. But the ruse is employed because members of the pupil transportation community are fully aware that the majority of schoolbus-related fatalities and serious injuries occur when the students are off the bus–i.e., when they are struck (most commonly) by third-party vehicles while crossing to and from their bus.
These principles should be important to insurance carriers and their attorneys, as well as plaintiff’s attorneys, since most American motorists carry either minimal insurance or none. Plaintiffs’ attorneys are forced to explore the errors and omissions made by the parties with deep pockets. At the same time, in the vast majority of crossing cases I have done, those deep- pocket parties (even including public agencies with immunity caps) are far more often responsible for errors and omissions than are the common motorists whose vehicles often strike the crossing pedestrians. The victims of all crossing accidents are necessarily pedestrians or bicyclists, whereas the victims of turning accidents also include fellow-motorists, commercial vehicle operators and motorcyclists. (See turningaccidents.com.)
Finding Fault: Driver or Management?
There are plenty of other factors that play into crossing-related risks and the negligence that allows these risks to materialize. One is drug and alcohol use. Another is distraction–recently found to be the principal cause of a full 20 percent of vehicular accidents of all types.
But far more central is driver or motorist fatigue. 29 percent of bus operators say they get poor sleep on work nights according to the National Sleep Foundation. According to a 2012 government study, fatigue was the cause of 37% of all passenger bus crashes.
Attorneys also must understand the rarity of regulations governing driver fatigue (see “Holes in HOS Regulations and Why We Need to Plug Them“). Until late 2016, when merely screening drivers for Obstructive Sleep Apnea was under consideration as a regulatory matter, the only aspect of commercial driving controlled by the Federal Motor Carrier Safety Administration (FMCSA) was the duration of a driver’s vehicle operation and his or her shift-length (including the time spent on duty but not driving). Largely in response to lobbying efforts by the motorcoach sector’s information-sharing organizations in the early 2000s (about which most evidence has vanished), the regulation of shift inversion (beginning a shift three hours earlier or later than the previous day’s shift)–or what Mr. Einstein has coined as “bus lag” –was never initiated. The limits of shift inversion are regulated in most “developed countries.”
At the same time, while a studies have also shown that a considerable number of commercial drivers possess Obstructive Sleep Apnea (OSA), the hours schoolbus drivers operate their vehicles are usually limited and regular. Transit drivers typically operate a few more hours a day (or night), also on the same shifts for months at a time. So the “bus-lag” that motorcoach drivers experience (largely from constantly-changing shift, the inclusion of all-night-long runs, and an inadequate regulatory structure) are much greater than the fatigue experienced by schoolbus drivers. As a result, fatigue is occasionally a factor in a crossing incident. But it is usually not the principal factor, and in most cases, it is not a factor at all.
Why Expert Assistance is So Important
As a matter of evidence, TA President Ned Einstein typically finds dozens or scores of errors and omissions in crossing cases. As a plaintiff’s attorney involved in a schoolbus-related crossing case, it is critical to recognize the difference between what one might consider reasonable and prudent and the ugly reality of what often exists: “reasonable and prudent” is exactly what it sounds like–even if many industry members operate below this standard.
Another challenge is to get the jury to confront the magnitude of failure often found in crossing cases–sometimes including dozens or scores of errors and omissions made throughout the driver and management hierarchy–and accept it, when most of them are stunned by the depth and diversity of this evidence, and simply don’t want to accept the fact that transportation in their community is as bad as one proves it truly is. Sometimes, it takes time for even excellent attorneys to accepting these realities, but instead, prefer to focus mostly on superficial themes like driver errors, and errors and omissions in hiring and training. Yet the most important and material errors often were made in route and schedule design, stop selection, monitoring, management and, in particular, policy-making. One common error is the request that students arrive at their bus stops before the bus does–instead of arriving at either there bus stops or the waiting area directly across the street from it. Waiting at this latter point, when the bus arrived, the driver can engage the red flashers, stop arm and, when appropriate, direct the student across the roadway. Without this help, the students are effectively asked to cross often high-speed roadways, or jaywalk across mid-block stops, when they are not expected to, and with limited skills for doing so.
Engaging a genuine industry insider with a broad swath of experience in multiple modes is not simply a more-costly choice. A novice expert may know the standard of care, and proper crossing procedures. But only an industry insider with decades of experience can know the depth of this industry’s deviations from these standards. One effective way to gauge an expert’s genuine knowledge of both a case’s subject matter–and the strategy to both win or settle it and optimize the damage award or settlement–is the degree to which that expert helps you explore the case, and is willing to challenge your initial assessment or understanding of the case. The expert who simply agrees with everything you say may provide you with a comfort level. But to win the case, or settle it for the most amount reasonable and possible, you need someone to knows every nook and cranny of the transportation landscape, every regulation, and particularly where the defendant has a commercial agenda, who the “players” are.
Another unfortunate reality is that public transportation cases often appear far more simple than they genuinely are. For example, Mr. Einstein has have found that the underlying causation in roughly half the 600 or so lawsuits in which he has been engaged as an expert is that the schedules were too tight, and the vehicle was either running behind schedule, or committing “safety compromises” to ensure that it was not. Not reasonably understanding the full set of dynamics, a shred attorney could proceed far down the road before engaging an expert, onto to discovery wasted opportunities, and find that his or her case is actually in what good experts “rescue mode.” The wise attorney welcomes a change in direction and emphasis when it is possible, Of course, the further along a case proceeds, the fewer options may exist for shifting its course. For more on the overarching concept of safety compromises, feel free to navigate to Safety Compromises.
Given the realities of the public transportation environment, employing the “KISS” principle (“Keep it Simple, Stupid!”) in crossing cases is almost always counterproductive. Further, hearing this from a plaintiff’s attorney is a death knell to a good expert. That is because, like it or not, crossing cases are not simple. Often they are not simple when an attorney engages a good expert–because opposing counsel reverts mostly to shenanigans–spoliation, stonewalling discovery, time-consuming and specious motions, threats of Daubert hearings, and everything else that the reader had doubtlessly encountered when an attorney is overwhelmed by opposing counsel’s expert. Otherwise, most crossing cases require effort. A good expert may actually turn down a case whose counsel characterizes it as simple, or worse, simply wants to make it simple. Simplifying the presentation of a case to a jury is an entirely different matter. But the key elements of a crossing case must often be boiled down from the examination of hundreds of pieces of evidence, and thousands of thoughts. As the article noted above about the Seattle METRO study explains, turning accidents correlate highly with insufficient “running time.” As I noted, insufficient running time, even when the vehicle is not behind schedule at the time the incident occurs, is responsible for a full half of all public transportation cases involving almost any theme. Crossing cases are among them.
Another grave error that poses a particular problem in a crossing case is trying to settle it without having to engage an expert, much less one whose presence in the case will “sober up” opposing counsel. The way to optimize the settlement value or damage award in a crossing case is to engage an expert (ideally with intimidating credentials, a mastery of the subject matter, and experience in case strategies) as soon as possible, and use the discovery process (including an incident scene inspection, and sometimes a vehicle) to figure out the case. Then plaintiff’s counsel can then use the depositions to win or settle it–instead of wasting the discovery process, and using the depositions to figure it out. Not following this approach, it should surprise no attorney that he or she has not been offered a settlement that reflects anything close to the actual damages.
At the same time, all is not lost if things have proceeded far in the wrong direction. A good expert who can identify the genuine causation can “sober up” opposing counsel at any time by identifying the genuine errors and omissions. But it unfortunately costs more, in both legal terms, expert terms and resolution terms to reorient a case radically if it has already gone far, particularly when discovery has closed. This is largely because the attorney and his expert did not have the opportunity stop the case “in its tracks” before so much work was done. But also, evidence not asked for early in the discovery process may not be retained (although sometimes it is spoliated immediately), the vehicle may have been sold, the bus stop or intersection may have been modified, and the risk is great that a sharp defendant’s counsel might have been victorious in a Motion for Summary Judgment.
Many of these same principles are also true for defendant’s counsel, since the defendant and its carrier know that a law suit is likely to ensue the moment the incident occurs. Realistically, of course, the defendant’s counsel can only engage an expert when either the defendant (self-insured to what is likely to be needed to cover the damages) or its carrier allows him or her to engage one. Seasoned experts understand these dynamics, just as they understand the financial constraints that may be imposed on defendants’ attorneys by their carriers. Many experts will do the small amount of work a defendant’s counsel may ask for. A good one will not take the case if he or she feels that much more is needed.
If it is not obvious, a good expert also does not take a case he or she does not believe in. And a good expert cares almost as much about winning or settling a case properly than does his or her counsel.
Finally, as noted, a plaintiff’s attorney who engages a genuine expert in a case with genuine fault can almost always count on the case being defended largely by shenanigans. The insurance industry tracks experts in multiple fields like wild game, rare commodities or terrorists. So with a genuine expert, defendants’ counsel typically know that a weak case cannot be defended on the facts. The case can only be defended by shenanigans. Shenanigans occur in all shapes and sizes, and emerge at both the factual level (involving things your expert is responsible for, and for which evidence is commonly spoliated) and the legal level (like claims of “net opinions,” denials of common carrier status, reliance on limited appellate precedents and lower court rulings). But if your expert does not have a mastery of the public transportation landscape, and the credibility of being a major member of the sector of the public transportation community where your case lies, you can also count on opposing counsel defending the case on a distortion of the facts, the expert’s weak understanding of the technical principles involved in public transportation, and his or her peripheral membership and participation in the particular public transportation community.
A key factor in crossing cases is spoliation. Since roughly 2000, most transit buses, paratransit buses and schoolbuses have installed video cameras. And while many systems include as many as six cameras, the universal image that all of them contain is the shot of things transpiring in front of the bus. Even those cameras set to capture images only when the camera’s “memory” is triggered by a default setting (typically .5 of a g-force) capture several seconds of time before the incident–when triggered. However, the default setting can be raised. And even if not, the g-forces of a vehicle-pedestrian collision (particularly with a child) may not trigger the camera to run–and capture action 10 seconds before the collision in a “loop.” But other camera images are not set to merely trigger. There may be five or six cameras operating, and combining their information can often document exactly what happened–at least when the incident occurred. Of course, as noted, much else has problem been done wrong, at the policy-making and management levels, long before the incident itself has occurred.
As an expert with four decades of experience in the public transportation field, TA President Ned Einstein has always been surprised to find the installation of video cameras on board–since the lack of monitoring of any kind is the Achilles Heel of the entire industry. In the transit field, the purpose of this equipment is often to provide evidence to actually terminate a driver within the constraints of the industry’s heavy-handed union environment. In contrast, school districts and their contractors employ cameras most to capture aberrant passenger behavior that the passengers’ parents would not otherwise believe.
Both of these modes–again, the key perpetrators of crossing accidents–rarely produce video evidence, even when cameras (or their housings) are visible during vehicle inspections. Unfortunately, the judges in their venues rarely make them. And because transit agencies often have their own “security forces,” their law enforcement colleagues rarely pull a video drive. They almost never remove the “black box” (e.g., the DDEC system with a Detroit Diesel/Allison engine, most common in full-size transit buses). The few exceptions occur in catastrophic accidents, particularly where NTBS officials or other Federal or State government agency representatives are likely to become involved in the investigation.
In contrast, crossing accidents are almost never classified as catastrophic accidents. And they are rarely investigated by the NTSB, other than in extraordinary cases. But because crossing cases are common to transit (especially where the bus mows down a pedestrian in a crosswalk), and because a pedestrian has little chance of doing well in a collision with a 38,000-lb. steel bus, “black boxes” and video cameras are almost never pulled by law enforcement officials. They likely are pulled by the defendant’s management. But whether or not these videos are provided to plaintiffs’ counsel usually depends on what they depict. The excuses are almost endless: They were broken. They were not turned on. There were no cameras in the “housing.” In fact, it is actually common practice in the cost-starved schoolbus industry for buses to contain mostly housings, in which the few actual cameras are rotated, periodically, to capture the bad behavior of a student-passenger or two. Regardless, a plaintiff’s counsel must consider himself or herself fortunate to get a video at all, much less one not “doctored up” by the defendant’s technical support staff.