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November 01, 2000  |   Comments (0)   |   Post a comment

Presumed Guilty?

Lawsuits are nearly inevitable. Transportation managers can avoid a courtroom disaster by focusing on driver and student training and documentation and by staying abreast of the industry's 'hot topics.'

by Steve Hirano, Editor


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The witness stand can be a very lonely place. Ask any transportation manager who’s learned the hard way that his substandard driver training program contributed to a fatal school bus crash or that an ill-considered bus stop location contributed to the death of a 6-year-old girl. As the plaintiff’s lawyer grills him about his district’s alleged negligence, he fantasizes about being anywhere except in a courtroom with 12 men and women clinging to his every word — and registering skepticism. The harsh truth is that a child was killed, and he didn’t take the steps necessary to foresee and prevent the accident.

“Rightfully, juries are very uncompromising,” says Jim Ellis, curriculum development specialist for the Pupil Transportation Safety Institute in Syracuse, N.Y., and an experienced expert witness in school bus trials. “You’re held to a high standard in this business.” So what should you be doing to minimize the chances that you’ll end up in court or, if you do end up in court, that you won’t be on the losing end of the judgment? We interviewed six transportation professionals who have been hired as expert witnesses in hundreds of school bus trials as well as a school attorney who is an expert in special-needs transportation law. This article is a compilation of their insights based on their experience and their understanding of juries and the law.

The fundamental things apply
Stick to the basics. In football, that would be blocking and tackling. In school transportation, it’s training, not just of drivers but of students as well. It’s also regular review of your policies and procedures and constant monitoring of industry trends, especially those that deal with safety. That includes an awareness of equipment recalls and evolving guidelines for best practices, such as those contained in the document approved every five years by the National Conference on School Transportation. Because lawsuits often involve the location of school bus stops, you need to review their placement annually or more frequently. You also need to ensure that drivers are not modifying the stops without authorization. Special-needs transportation is an area that must be factored into any discussion of school bus lawsuits. Because drivers and aides can face severe challenges in transporting children with special needs, they require specialized training to understand the physical and emotional disabilities of their passengers.

Justice can be blind
The first thing you need to know about a lawsuit that reaches the courtroom (that isn’t dismissed or settled out of court) is that you’re at the mercy of judges or jurors who don’t fully understand the complexities of running a school bus operation. “A courtroom is an artificial environment where the people making the decisions don’t understand much about what you do,” says Ned Einstein, an expert witness and president of a consulting firm in New York called Transportation Alternatives. “They learn about what you do from people who are not trying to teach them, but to take advantage of them.” On top of that, the plaintiff, who might have lost a young child in a school bus accident, generally has the sympathy of the jury. “You have to realize that juries are made up of human beings with feelings,” says Ed Donn, transportation director at Whitfield County Schools in Dalton, Ga., and an expert witness in many school bus cases. “The emotional aspect is there, above and beyond the facts.” The best you can do, Donn says, is train your drivers to follow the department’s policies and procedures. “Sometimes we haven’t done anything wrong, but the jury might not perceive it that way.” Donn often uses a baseball analogy when trying to explain to his drivers the importance of putting safety first. He says a major league ballplayer who gets three hits in every 10 at-bats year in and year out will likely be voted to the all-star team and could wind up in baseball’s Hall of Fame. “But we have to be 100 percent every day because we’re sitting in the seat of possible disaster,” he says.

Get started now
The best time to prepare for a lawsuit is, of course, before there’s a need to prepare for one. “Transportation managers need to do a lot of work before there’s even a hint of an incident that could lead to a lawsuit,” says Ted Tull, the administrative director for the National Association of State Directors of Pupil Transportation Services. Tull, who spent 20 years as a state trooper and is the former state pupil transportation director in Delaware, believes failure to properly train staff and riders is the most common error that he’s seen in his experience as an expert witness. “That creates vicarious liability,” he says. “That means they’ll sue the driver, the trainer, the transportation director, the superintendent and right on up the line. They’re all supposed to make sure that this training comes about.” “The average school district has only one safety meeting per year,” says Dick Fischer, a highly experienced expert witness who operates a school transportation consulting firm in Peyton, Colo., called Trans-Consult. “In some states, there are no requirements at all.” In comparison, Wal-Mart requires its employees to undergo 80 hours of training each year, Fischer says. In-service training might not be required in some states, but Fischer says transportation managers need to draw their own conclusions about how much training drivers need annually. Doing what’s reasonable and prudent, even if it’s not required by the state, is always a sound decision, he says. But it’s not just driver training that has to be scrutinized. The passengers, all 24 million of them, need to understand the safety requirements of riding a school bus, especially in regard to safe loading and unloading procedures. Classroom training of the younger children not only helps to encourage safe behavior aboard and around the bus, but it also suggests that the transportation department shows common sense and prudence in trying to minimize the safety risks of its riders. But school districts and contractors shouldn’t stop there. For example, when a substitute driver is behind the wheel, he or she needs to be extra cautious when dropping off children on the afternoon run. “The sub driver needs to ask every kid if they cross the road,” Fischer says. Bus operators also need to be aware of children who are new to the district and may not have received training on how to ride the bus safely. If that child is killed because he didn’t understand how to cross the street in front of the bus, a lawyer will certainly ask the transportation director about the training of the child, Fischer says. But children and drivers aren’t the only ones who need to be enlightened about safety concerns on a regular basis. Parents should also be part of the loop. Fischer recommends that school districts send materials on bus rules and regulations home to the parents of every bus rider. It’s best to have the parents sign and return a form that says they have read and understand the district’s bus policies and procedures. The transportation department should keep a copy of the form in case of a problem. “In today’s environment, you need to document everything,” he says.

Retraining ignored?
Not only is it important to train drivers well, it’s critical that they be retrained when necessary. Retraining practices can be the Achilles’ heel of school districts or contractors who are ship-shape in all other aspects, says PTSI’s Ellis. Ellis says drivers who have had some tangible problem, such as a preventable accident, a pattern of violations in their personal vehicle or a series of complaints against them should receive some retraining. “Anything that would cause a reasonable transportation supervisor to have concerns about that driver should be addressed with some kind of corrective action,” Ellis says. Juries can be very understanding about incidents that were unpredictable, but they can be harsh when they’re convinced that there was a foreseeable problem, when “you should have seen this coming,” Ellis says. “I think districts leave themselves wide open by identifying problems but either not doing anything about them or not documenting the retraining that took place,” Ellis says. As an example, he describes a scenario in which a driver has a minor preventable accident. The supervisor sends the driver out with a trainer to work on his right turns. Later, the driver is involved in a crash in which a student is badly injured. Through the process of discovery, the plaintiff’s attorney finds the report of the minor accident — but no documentation of the retraining. “Then the district’s naked,” Ellis says.

Driver qualifications
Proper training of drivers is critical to a sound transportation program, but that presumes that the driver is right for the job. With the current driver shortage, it’s understandable that a school transportation manager might put a person behind the wheel before he has completed all of his training or cleared a driving record or criminal background check. But that decision could end up turning into a school bus tragedy and a disastrous lawsuit. “So many times, this industry takes shortcuts because of the driver shortage,” says Carlisle Beasley, former transportation director at Metro Nashville Schools and one of America’s busiest expert witnesses in school bus cases. The most common shortcut, Beasley says, is sending a new recruit out before he’s ready. “You should not put a person on the road until you’re comfortable that he can handle the job,” he says. Even if it means that another driver will have to double back and cover that route, no compromise should be made involving safety. “I’d rather be late than put an inadequately trained driver on that route,” he says. Donn says failing to check a driver’s background, both for a criminal history and for driving infractions, is also risky. “Sometimes in the rush to hire people, you might let things slip through the cracks,” he says. Such failures can have devastating results. Donn said he was involved in one school bus fatality case in which the driver was discovered to be a convicted sex offender. Although that fact might not have been related to the accident, it badly damaged the school bus operator’s credibility. In another case, a school district failed to check the record of a former employee who had returned to the transportation department after a two-year absence. After the driver was involved in an accident, lawyers discovered that “a lot of things happened” during those two years, Donn says. These types of oversights are particularly damning because they give lawyers the ammunition they’re seeking. “Generally, lawyers are looking for errors of omission,” Donn says.

The bus stops here
Placement of bus stops is a critical decision made by a school transportation program. Every stop should be reviewed annually, if not more often. “A good bus stop in December could be a bad stop in June because of the growth of overhanging foliage,” explains Beasley. That foliage, he says, could obscure children from oncoming traffic. Not only should school districts and contractors inspect each stop at least once a year, they should also train their drivers to help identify stops that may be dangerous. “That’s part of a good driver training program,” says Beasley. “Drivers should receive classroom instruction on what constitutes a safe bus stop. After all, they have the potential of being at a stop up to six times a day.” Along the same lines, drivers need to be reminded often that they cannot modify their routes or school bus stops without authorization. “There are a lot of cases in which drivers, trying to be good-hearted, drop a student off somewhere other than their regular stop and that student tries to cross the street and gets hurt,” says Peggy Burns, an attorney for Adams Twelve Five Star Schools in Northglenn, Colo. Burns suggests that districts and contractors impress upon drivers the dangers of this unacceptable practice by describing instances in which children were seriously injured or killed. “Frankly, there are quite a number of horror stories,” Burns says. It also might help to remind drivers in other ways, such as including a short article in the department newsletter or perhaps inserting a note on this subject in the envelope with their paychecks. In addition to possibly preventing an incident, the reminders could be used in court if a tragedy should occur. “You’re going to want to make sure to save and date a copy of these reminders,” Burns says.

Create a paper trail
It’s so often repeated that it almost doesn’t bear repeating, but we’ll repeat it anyway: document, document, document. “If it’s not documented, then it might as well not have happened,” Tull says. Sign-in sheets for driver training sessions should be filed away in a safe place, as should any documentation of bus stop evaluations, accident investigations, driver retraining sessions, preventive maintenance and pre-trip inspections. Lawyers will ask for any and all of these documents. Having them doesn’t automatically mean you’ll be vindicated, but it shows that you’ve been conscientious in your record-keeping, which bolsters your overall credibility.

Follow the trends
Transportation managers also need to be conscientious about tracking industry trends, especially those that deal with safety and best practices. For example, they should be aware of equipment recalls and comply with them in a timely matter. In the mid-1990s, widespread handrail modifications to prevent snagging were announced by the National Highway Traffic Safety Administration. Some fleets performed the modifications within days or weeks of the announcement. Others waited for months — or years. “When there is a safety issue of compelling national concern, managers should not ignore it,” says Ellis. “Don’t think they’re talking about somebody else.” Ellis says transportation managers also need to be aware of new technologies and training concepts, even if they don’t implement them. “You should at least be able to show that you took them seriously and researched them,” he says. To stay in tune with evolving best practices, transportation supervisors should follow trade magazines as well as industry guidelines such as the 2000 National School Transportation Specifications and Procedures. “It is a strong piece of evidence and is still used in the courtroom,” says Beasley.

To tell the truth
Although witnesses are under oath during depositions and court testimony, we all know that the truth can stretched — or completely ignored — when someone’s pride, livelihood or reputation is at stake. “Just state the facts,” says Fischer. “If you’re wrong, you’re wrong.” If you can’t prove your assertions, you might not want to mention them. For example, don’t claim that every driver receives eight hours of in-service training each year if you don’t have dated sign-in sheets to prove it. “You can bury yourself that way,” Fischer says. Ellis says he was involved in a case in which a school bus operator was found to have falsified paperwork. The truth may hurt, but getting caught in a lie can be very expensive. The case, which involved clear negligence on the part of the operator, was settled out of court for millions of dollars.

Your special needs
In addition to the basics of regular-route transportation, all of your drivers should be trained for special-needs transportation, according to Burns. “Under special-education law, more and more students with disabilities are riding ‘regular’ buses,” she says. Drivers should be instructed in the specific physical and emotional disabilities of the students. They also need to be trained in confidentiality before they’re entrusted with information about the disabling conditions of their passengers, Burns says. Although it wouldn’t necessarily fall under the umbrella of special-needs transportation, drivers need to be taught to identify and handle harassment. This could include sexual and racial harassment as well as harassment of students with disabilities. “It’s clear that when a school official has control over an environment in which harassment is occurring, there is the potential for school district liability,” says Burns. “A driver who has authority over the school bus environment could be seen as a school official.” Burns recommends that transportation departments take advantage of training resources within the school district, such as nurses, occupational and physical therapists and special-education professionals. It can also help to bring in manufacturers of special-needs equipment, such as wheelchairs and lifts, safety vests and other child restraint systems. “There are a lot of cases in which a driver didn’t buckle someone in properly,” she explains. Einstein adds that special-needs drivers need to keep an eye on their inside mirror, especially if they are not provided with an aide. He says he was involved in a case in which a driver was unaware that a student had suffered a seizure and didn’t realize anything was wrong until he arrived at school and discovered that the child was dead.

The cascade effect
Occasionally, one small mistake will trigger a school bus tragedy. But Einstein believes that most accidents in which someone gets badly injured or killed are the result of multiple problems. “It’s not a few things that go wrong, it’s 10 things that go wrong,” Einstein asserts. “While no system can expect to be perfect, it shouldn’t be an absolute mess.” A good lawyer who unearths a series of problems unrelated to the incident that sparked the lawsuit can sway a jury into believing that the school bus operation is sloppy, which nudges the case closer to a finding of negligence. Train your drivers so they know how to comport themselves before, during and after an emergency. That includes training them in how to respond to questions from the media. “If you’ve done everything you’re supposed to do, then all you have to worry about is what is said by your driver after the accident,” Tull says. “Drivers can sometimes be too verbose.” Although they should answer any questions posed by law enforcement officials, they should be cautious about making public statements, especially about the cause of a crash.

Nobody’s perfect
What’s clear from the insights provided by our six expert witnesses and school attorney is that preparation is the key to reducing your chances of being targeted by a lawsuit and to winning your case if a lawsuit is filed. However, even meticulous preparation is no guarantee that a tragedy — and subsequent lawsuit — will not visit your school district. “Yes, nobody’s perfect,” says Ellis. “But if you are in compliance with the minimum legal requirements for your state and if you are conversant with best practices in the industry, whether that’s new ideas or new equipment, then even if your number comes up and something terrible happens, you’ll probably be OK.”


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