School bus accidents are a fact of life at all operations. In most accidents, the damage is minimal and no one is injured. In other cases, however, the crash entails significant damage to the bus and injuries to the passengers. In these cases, you can almost be assured that one or more of the passengers will file an injury claim against the school district and transportation department as a prelude to a possible lawsuit.
Many times, school districts or their contractors may not have a choice in the decision to “stand and fight” or “duck and run.” If the claim is substantially true and valid, then the district or contractor should duck and run — that is, admit to the error, apologize and settle out of court to avoid litigation.
If the claim is false, then the attorney for the school district may choose to stand and fight. But that choice may be influenced by the transportation department’s diligence in preparing for such an encounter.
Following are a dozen recommendations to help school districts and contractors use the “stand and fight” strategy. Please note that this article is for educational purposes only. The information it contains does not replace the advice of a lawyer.
1. Keep student ridership logs for seven years
It’s important to know who was aboard what bus at the time of the accident. Thus, you should keep a ridership log to verify who was riding each bus during the morning and afternoon runs when the accident occurred. Will your records verify that the student claiming injury was on the bus on Thursday, Oct. 18, 2001, at 6:59 a.m.? Unless your state limits the number of years you must keep certain documents, maintain student bus ridership logs up to the statute of limitations (seven years). Remember that a lawsuit can take several years to work its way through the court system.
2. Have a qualified on-site collision investigator
Who does the on-site collision investigation? All school bus collisions, especially ones involving a special-needs bus, must be investigated.
Was the school’s safety officer at the collision site a fully qualified accident investigator? Safety officers must be trained for comprehensive collision investigations, including digital photodocumentation, field sketches and measurements, skid and road evidence analysis and other procedures. Without a complete collision investigation, your counsel may recommend to duck and run.
3. Comprehensively photograph the accident scene
Were photographs taken of the accident scene, including interior and exterior bus damage? Also, do you have “before” photos of the interior and exterior of the bus on file? Before- and after-collision pictures of the bus interior and exterior can be very persuasive to a jury. Does the district rely on the police officer’s vehicle accident report alone, without the district investigator’s photodocumentation? If the police vehicle accident report does not include a field sketch with accurate measurements, it will probably not stand up in court.
4. Don’t rely on police accident reports
Were the police called to complete a vehicle accident report? A completed vehicle accident report is not a complete collision investigation. Police may not treat the collision in the same way that the school district should. Officers must complete the report and obtain a complete listing of the names and ages of all students on board. This delays clearing the accident scene before normal traffic flow resumes. Police supervisors press their officers to shorten the investigation and clear the accident scene, which leaves an incomplete investigation.
5. Use assigned seating
Do your bus route sheets show student seating assignments? Is the bus seating chart valid for the date of the accident? Can all students be identified at their specific seating locations at the time of the accident?
If you don’t know where a student was seated at the moment of impact, you cannot determine the forces to which he or she was subjected at impact and post-impact. This data could help to corroborate or refute the student’s injury claim.
6. Try to determine the student’s position at impact
What was the student’s seating position at the time of the bus collision? Actual seating position at the moment of collision will determine if the child was inside or outside the compartmentalization envelope. If he or she was outside the compartmentalization envelope, liability may be reduced. If anyone can testify as to whether the student was compartmentalized, this information could be useful during the trial.
7. Review any videotaped evidence closely
Was the accident caught on videotape? Footage of the bus interior taken during the actual crash is like DNA evidence in a criminal trial — it can lead to a jury quickly finding against the plaintiff or the plaintiff withdrawing its lawsuit and settling out of court.
Even for minor accidents, videotape archiving should be routine. Though your school district may have the technology to alter the videotape to blur students’ faces, do not modify the original videotape in any way lest the plaintiff’s attorney claim that you have altered the evidence.
8. Make copies of crash videotapes
There’s no excuse for losing videotape of an accident, especially if videotaping was done on other buses at that same date and time. The “missing videotape” is an invalid argument and a poor defense that is comparable to former President Nixon’s missing minutes of audiotape. Transfer videotape footage of any reported bus accidents to digital format on a hard disk, no matter how minor.
9. Don’t invoke FERPA to shield videotapes
Do you invoke the Family Educational Rights and Privacy Act of 1974 to shelter bus occupant videotape from legal access in litigation or from private access by means of the Freedom of Information Act? This defense will not work when a subpoena is issued by the court.
10. Avoid immediate student release to parents
Do you release students involved in a bus crash to their parents at the accident site? You shouldn’t. Don’t release any student to his or her parents until the first responders have completed triage and authorized emergency transport for those needing critical care.
11. Obtain student medical injury assessments
Every child involved in a bus collision should be brought to the emergency room if there is any suspicion or evidence that they are injured. Some districts have a policy that all students on a special-needs bus are taken to the emergency room for an injury assessment, or they are taken directly back to school for an on-duty school nurse assessment.
12. Always follow up with students and parents
Did you express genuine sympathy to the parents and the student? Personal visits to the emergency room and hospital bedside and phone contact with parents are courtesies that should always be extended. Unless they’re injured themselves, bus drivers, attendants and supervisors should visit students and parents at first opportunity and during the healing process.
Dr. Ray Turner is an accident reconstructionist, special-needs transportation authority, expert witness and author of numerous books and newsletters. For more information, e-mail him at [email protected] or visit www.whitebuffalopress.com.