• The A - Z Of Representing Bus Accident Cases - A Personal Injury Lawyers' Guide
  • October 23, 2018 | Authors: Daniel A. Murphy; Bernard F. Walsh
  • Law Firms: Shapiro, Goldman, Babboni, Fernandez & Walsh - Bradenton Office; Shapiro, Goldman, Babboni, Fernandez & Walsh - Sarasota Office
  • A study conducted in 2017 by the Department of Transportation found that there are, on average, 486 school bus accidents every year in the State of Florida. On average, nationally, there are over 32,000 bus accidents of all types (school bus, tour bus, and so on) and at least over 300 facilities each year for the past 5 years.

    Buses are recognized as common carriers. A common carrier is any sort of vehicle which holds itself out to the general public as being willing to transport anyone who pays the necessary fare (for example, city, metros, or trolley buses). Common carriers differ from private carriers due to the fact that private carriers transport select groups of people, and do not hold themselves out to the general public (such as: greyhound, charter, tour buses, etc.). Private carriers on the road have the duty to act as a reasonable person would do to make sure that passengers arrive at their destination uninjured. Common carriers, however, are required to demonstrate an even higher level of care, requiring the bus driver to go far above and beyond what a reasonable person would do under the same circumstances.

    Under §390.3 of the Federal Motor Carrier Safety Administration (FMSCA), for-hire passenger transportation across state-lines, even occasionally, and acceptance of any type of payment for transportation is considered "for-hire" and must comply with the rules of interstate commerce (FMCSR). The financial responsibility for "for-hire" interstate Passenger-Carrier Transportation is determined by the seating capacity of your vehicles. Vehicles with a seating capacity of 15 or fewer passengers require $1.5 million of coverage, while vehicles with a seating capacity of 16 or more passengers require $5 million of coverage.

    There are exemptions and exceptions under the §390.3 that certain Passenger- Carrier Transportation may qualify under. The General For-Hire, Airport Transportation, Education - Related, Employer - Related, and Faith-Based-Organization- Related entities are not subject to FMSCA commercial regulations.

    These entities are defined, further:

    • General for-hire companies transporting passengers only within a commercial zone (geographical areas in and around cities that are designated by regulation);
    • Highway transportation of passengers that is incidental to aircraft transportation confined to an area within a 25- mile radius of the boundary of the airport;
    • Education - Related is divided into sub-parts of: (i) private schools and universities that receive no compensation for transporting passengers and are not available to the general public, (ii) transportation of students and teachers to or from school in interstate commerce, (iii) school bus contractors providing transportation of pre-primary, primary, and secondary students in interstate commerce, and (iv) school bus operations transporting only school children and school personnel in interstate commerce from home to school and school to home.
    • An employer that transports employees in interstate commerce operating a vehicle designed to transport 15 or fewer passengers, if a company collects no fees from its employees for transportation, or if an employer organizes a company retreat.
    • A faith-based-organization that transports members with its buses in a private capacity and collects no compensation for the passenger transportation, organizes a retreat, or if all transportation of passenger for compensation is within a commercial zone (geographical areas in and around municipalities that are designated by regulation).

    Who is Responsible? Unlike a car accident, determining liability in a bus accident can be difficult.

    • Liability caused by Third Party: In some cases, bus accidents may be caused by a third party. Potential liable parties include other drivers on the road, pedestrians, motorcycles, or bicyclists. Victims must prove that the third party had a duty to prevent harm, breached that duty in some way, and that they were harmed as a result.
    • Liability caused by Government/Municipality: In some cases involving buses that are owned by government/municipalities or drivers employed by government/municipality, your claim has to be against the municipality. They typically have protections that can impact what steps you can take to recover damages in your case. The statute of limitations in personal injury cases against the municipality is generally much shorter than other personal injury lawsuits. In some states, this statute of limitation can expire in as little as 6 months after an accident.
    • Liability caused by Private Company: Tour companies must enter into a contract with a bus company and it has a duty to hire a company with a clean safety record. When injuries occur on a bus-operated by a company cited for multiple safety violations, the tour company may share liability with the owner of the bus. The bus company, which owns the vehicle, must have reasonably safe buses in its fleet, must only hire properly licensed drivers who meet the driver requirements, and typically must prove its fitness as a common carrier to the other parties in the contract. Even if these criteria are met, a negligent driver exposes the bus company to liability.
    • Liability caused by Bus Driver: Bus drivers have a greater responsibility than other drivers to operate the vehicle safely. Buses are considered common carriers, which imposes a greater duty of car on operators. As told in Liability Following a Bus Accident article on BestLawyers.com, rather than exhibiting reasonable care, common carriers must exercise "the utmost caution or highest degree of vigilance, care, and precaution." (Arzani, S., 2017)

    What are the Four Main Causes of Bus Accidents?

    • Companies fail to ensure their drivers are qualified or fit for the job according to the FMSCA regulations (or specific state regulatory requirements if intrastate). According to the article Put the Brakes on 'Curbside' Bus Abuse at Trial Magazine, Medical offices and commercial driving "schools" rubber-stamp, and even cheat, to provide Commercial Driving Licenses (CDL) to drivers who often do not speak English, have insufficient qualifications, or may be medically unfit. (Harvey-Lee, K., 2013)
    • The Federal Highway Administration stated, "Fatigue is considered the most important road safety factor for large trucks." As told in the Driver Fatigue and Electronic Logging Devices article of The Lawyer's Logbook, The National Transportation Safety Board concluded that over 50 percent of single vehicle accidents with heavy trucks involved fatigued drivers. Of this percentage, 18 percent actually admit to falling asleep. According to Parker v. Crete Carrier Corporation, 2016 WL 5929210, Crete Carrier relied on the Motor Carrier Safety Advisory Committee (MCSAC) recommendations and required sleep apnea testing for any driver with a body mass index (BMI) of 35 or more. The Court held that the reasons for requiring sleep apnea testing were not pre-textual and that Crete had a legitimate business reason for requiring the testing, which is not a violation of the Americans with Disabilities Act (ADA). The hours of service rules for drivers of passenger-carrying commercial motor vehicles (CMVs) are different from the rules for property-carrying CMVs.
      • Under the FMSCA Regulations §395.5, no motor carrier of passengers shall permit or require any passenger-carrying CMV driver to drive more than 10 hours following 8 consecutive hours off duty, or for any period after having been on duty 15 hours following 8 consecutive hours off duty; as well as for any period after the driver has been on duty for 60 hours in any 7 consecutive days if the carrier does not operate CMVs every day of the week; or 70 hours in any 8 consecutive days if the carrier operates the CMVs every day of the week.
      • (B)(2) According to §395.2, on-duty time for any passenger-carrying CMV is defined as all time from the time a driver begins work or is required to be in readiness for work until the time the driver is relieved from work and all responsibilities for performing work. Performing other compensated work for a person who is not a motor carrier is also considered on-duty time.
    • Pursuant to 49 CFR §392.80, Texting while operating a Commercial Motor Vehicle (CMV) has been formally banned due to the fact that CMV drivers who 'text' while driving are over 23 times more likely to be involved in a crash. Texting while driving is still a substantial problem. The penalties for violating the rule can be up to $2,750 for drivers and up to $11,000 for employers who allow or require drivers to use a mobile device for Texting while driving. However, according to Unguided Weapons of Mass Destruction: Commercial Motor Vehicles and Cellphone/Texting in The Lawyer's Logbook, "under the FMCSA, CMV operators can still use a hands-free device, use voice-activated dialing, or can initiate, answer, or terminate a call by touching a single button. In the event of a collision, in order to argue compliance, the driver must have been in the seated driving position and properly restrained by a seat belt." State regulations may differ on the use of cellphones, tablets, and other electronic communication devices.
    • Many deaths and injuries from bus accidents could be avoided or at least reduced if the safety features of the buses were improved. While some recommendations from the National Transportation Safety Board (NTSB) involve better driver qualification and oversight, many recommend improvements to bus safety features, such as forward collision warning systems and automatic braking, strengthened roofs, improved seat anchorages, revised window glazing requirements, developing performance standards for luggage racks, and improved fire protection.

    What are the Critical Procedures on Handling Bus Accident Cases right now?

    Whenever there is a bus accident, according to the article A Comprehensive Plan for School Bus Accidents of SchoolBusFleet.com, a bus drivers' first call is inevitably to report something like; "We've just had a bus accident, but everyone is OK" (Fahey, J., 2011). However, in most cases, everyone is not OK and some passengers are actually injured. Future plaintiffs need to be aware that the bus driver has been trained, and expectations are geared toward keeping the passengers (especially children) safe, therefore, if they are injured, this needs to be abundantly clear at the scene of the bus accident. Future plaintiffs also need to be aware that due to the bus driver initially saying "everyone is OK," the future plaintiffs are vulnerable to most of the critical evidence at the scene disappearing. Even with all of the chaos of the accident, the future plaintiffs need to call 911, take photos, have an accurate report made by the law enforcement officer, and collect as much information as possible.

    Additional good practice by the Plaintiff's attorney includes:

    1. Get your Crash Team involved immediately (an investigator, videographer, photographer, and accident reconstructionist)
    2. Get the names and contact information of everyone at the accident scene (including other passengers);
    3. Ask witness and other passengers for any photographs or video taken (usually by cellphone) when taking detailed statement by your investigator;
    4. Collect any news articles or television coverage regarding the accident;
    5. Check social media posts by the driver, witnesses, and other passengers;
    6. Make sure to have the police report and review it for accuracy;
    7. Send spoliation letters to preserve evidence to all parties immediately (bus company, bus driver, government/municipality, third party, and so on);
    8. If the plaintiff was not taken to the hospital after the accident, it is critical that they see a doctor as soon as possible, preferably the same day;
    9. In many jurisdictions, there is a substantially limited amount of time to file a claim against the government/municipality; therefore you need to make sure that it is filed as soon as possible in order for the opportunity of review, processing, and determination of whether they are going to deny the claim;
    10. Get all pertinent Electronic Onboard Recording Devices (EOBRD), also referred to as "Black Box" or "Electronic Logging Device" or "Event Data Recorder" and Computer Downloads from all vehicles immediately;
    11. Have your accident reconstructionist, along with your other crash team members, go to the scene and examine all vehicles involved;
    12. Buy and store as many vehicles you can;