Rob Ammons

Imagine that a commercial airliner crashed somewhere in the United States, and the subsequent investigation determined that the plane had numerous safety issues: There were no seat belts and no fire extinguishers on board, the fuselage was not structurally sound, and the windows were defective. Even worse, the airline had unlawfully delayed maintenance on critical aircraft components, such as brakes and landing gear.

No one knew this, though, because the plane had never been inspected. Moreover, the airline was not licensed to carry passengers, and the pilot was flying on a suspended license due to an expired medical certificate.

It couldn’t happen, you say. Not in this country.

But if you board a bus instead of a plane, the sad reality is it can and does. Every day, Americans ride buses that lack up-to-date safety equipment and are driven by improperly trained or unlicensed drivers.¹

For a variety of reasons—poor oversight, poor bus design, maintenance problems, and lax operators—the level of safety on the average bus is far from what it should be. Until steps are taken to address these problems, Americans will continue to be needlessly injured and killed in tragic bus accidents .

Unlike plane crashes, bus accidents occur frequently in America, often with catastrophic results. In recent years, several highly publicized, tragic incidents have called attention to the problem:

Why do these tragedies keep recurring with depressing regularity? The problem is twofold. First, buses are not nearly as safe as they could be. Because of political pressure, inertia, or lack of will, safety features that can increase survivability in bus accidents are not required as standard equipment on buses.

Second, the regulatory structure that is supposed to protect the traveling public is abysmal. Not only have regulators failed to require safer buses, they also aren’t enforcing the regulations that do exist. The result is an environment where bus operators and drivers feel free to operate outside the rules without fear of consequences.

Without serious changes in the industry, the problem is likely to get worse. With fuel prices likely to go up and the economy trending down, people who used to fly or drive will take buses instead. And in emergency situations, evacuations of large cities could require people to ride on the nation’s buses.

Slow on safety

Compared with safety measures in airplanes or even automobiles, advances in passenger safety have been slow to find their way onto buses. And it’s not because the technology doesn’t exist. Experts around the world have conducted extensive research and collected significant data on how to improve bus safety. But that knowledge is not being used.

There are many ways to make buses safer, but we won’t see safety improvements until the federal government forces bus manufacturers to implement them. When that does happen, certain measures should be priorities.

Seat belts

Seat belts have been standard on both airplanes and automobiles for so long that most Americans can’t recall a time when they weren’t mandatory equipment. Incredibly, though, buses are rarely equipped with them. This omission is not an accident.

Safety advocates first proposed mandating seat belts on American buses more than 30 years ago, and other countries—including Australia and most European nations—long ago made seat belts in buses a requirement. Most studies show that placing belts in buses saves lives.⁶

Just as they do in cars and on airplanes, seat belts in buses keep passengers in their seats during an accident. A collision or rollover subjects passengers to tremendous forces that can propel them out of their seats and slam them into the bus’s interior surfaces. These forces are usually strong enough to eject people through windows and out of the bus—which is an alarmingly frequent cause of death in bus accidents.⁷

Critics of mandated seat belt use say seat belts would be expensive, would add too much weight to the bus, and would be difficult to install. But it is possible to use an existing seat design that would add no weight and cost the same as seats currently used in buses.⁸

Stronger roofs

Any time a bus crashes, passengers’ survivability depends on the bus maintaining a “survival space” free from any encroachment by the damaged structure of the bus itself. Passengers face significant risk if the side or roof of the bus collapses. When the survival space is compromised, passengers can be severely injured.

The strength of the roof depends on its support structure, the pillars between the windows of the bus. As bus manufacturers have enlarged their vehicles’ windows for the convenience of passengers, the support structure for roofs has gotten smaller. Weaker roofs are more likely to give way in rollover and other accidents, increasing the injury risk. Mandating stronger roofs on buses would save lives.

While bus safety experts have been aware of the problem for some time, buses continue to operate under regulations that permit a bus’s roof to be less rigid than is necessary. The NTSB has identified stronger bus roofs as a top priority.⁹

Window glazing

Because passengers can be thrown through bus windows during an accident, safety experts have developed technology, known as ejection-resistant window glazing, to strengthen the windows. Because studies indicate that ejection is a leading cause of death in bus accidents, ejection-resistant glazing in all buses would help reduce the risk of death and injury.¹⁰ But again, the failure of government authorities to require this critical technology means that it remains woefully underused.

Also troubling are bus manufacturers’ efforts to use inadequate regulations as a shield against liability. In one recent case, a bus manufacturer asserted that the plaintiffs’ defective design claims regarding seat belts and laminated windows were impliedly preempted because they conflicted with federal motor vehicle regulations.

In a well-reasoned decision, the Texas Court of Appeals disagreed with the bus manufacturer. In holding that there had been no clear federal expression of opposition to the installation of passenger seat belts in motor coaches, the court said, “[W]e cannot say that a state common law duty in tort to install passenger seat belts is impliedly preempted; such a duty does not frustrate or ‘stand as an obstacle to accomplishment and execution’ of federal purposes and objectives.”¹¹

Lax oversight

In addition to the safety problems of the buses themselves, there are problems with the people who own and operate buses. Unlike pilots and airplanes, which are closely monitored, unfit drivers and uninspected buses are regularly on the road. There are several reasons for this.

Lax enforcement of existing regulations. While in theory buses are subject to strict rules, the grim reality is that bus safety regulations are enforced sporadically. And the procedures for keeping unlicensed drivers off the road are insufficient. Bus operators are not particularly concerned that they will be shut down for rules violations—and too often they aren’t stopped until it is too late, as the 2005 and 2008 Texas bus tragedies demonstrate.

Poor oversight of bus operators. Anyone can start a bus company: All you have to do is buy a used motor coach. While an airline cannot operate under the radar of federal regulators, bus operators can. Rogue operators can own several buses and operate for years without detection. In fact, government oversight is so poor that state and federal governments cannot even ensure that buses used for mandatory emergency evacuations are safe­­—a fact tragically underscored by ­the case where 23 evacuees died in a bus fire while fleeing Hurricane Rita in 2005.

Unqualified bus drivers. Several regulations pertain to bus drivers’ qualifications and licensing. As the industry has grown, more drivers have been needed, and some bus owners have met this demand by relaxing driver qualifications. Because of lax oversight, too many owners simply look the other way and hope that nothing happens.

Failure to update regulation and oversight. Simply enforcing the current regulations is not enough. Enforcement mechanisms need to improve to the point where regulators, charterers, and the traveling public can determine instantly whether a bus’s inspections are up-to-date and the driver is properly licensed. When owners and drivers know they can no longer get away with breaking the law, the problems of unlicensed drivers and unsafe buses will diminish considerably.

Comprehensive motor coach legislation is long overdue. Some lawmakers have taken note of the growing crisis in the bus industry. In the wake of the Atlanta bus crash that killed five students from Bluffton University in Ohio, Sens. Sherrod Brown (D-Ohio) and Kay Bailey Hutchison (R-Tex.) introduced the Motorcoach Enhanced Safety Act of 2007. It is a comprehensive bill designed to implement long-overdue reforms.

Specifically, it provides for

• improved passenger protection on buses
• motor coach crash-avoidance measures
• research into bus crashworthiness and crash avoidance
• improved oversight of motor coach operators
• better training of drivers
• more stringent license testing for drivers and oversight of their physical health
• the use of technology to track commercial drivers’ hours and locations
• improved comprehensive testing of buses that carry passengers.

These measures are not controversial. They are commonsense safety improvements that would bring the United States up to a level of safety commensurate with other countries. But the act’s future prospects remain up in the air. The bill did not pass in the last Congress, but its proponents will certainly reintroduce it in the new session. Unfortunately, it may take yet another tragedy before buses get the attention of both Congress and the traveling public.

Preparing the bus crash case

If you decide to represent bus crash victims, keep the following general guidelines in mind.

Investigate early

Things happen fast in the hours and days after a bus crash, so you need to begin your work the minute you are retained. Investment of resources early will pay off later in better evidence and a better understanding of the case.

Collect the evidence

Your case depends largely on what is photographed, observed, and collected right after the crash. Generally speaking, the more evidence you collect, the more likely you are to win your case. The reason is simple: Buses aren’t supposed to crash. When they do, something went wrong.

Inspect the scene

As soon as you can, get to the crash site and get a feel for the road, the traffic, the terrain, the obstacles, any unusual features, and other aspects of the site. Photographs and descriptions won’t give you the full context of what happened. You need to put the bus, the victims, the weather, and the road conditions in their proper place and sequence so that you can re-create the accident for the jury.

Follow the investigations. Serious bus accidents are always thoroughly investigated, usually by the NTSB, which does a good job of commandeering the scene and quarantining the evidence. You can piggyback your investigation on the federal one, and federal investigators often make preliminary determinations that can help your case. For example, in the 2008 Texas bus crash, the NTSB determined quickly that the bus had an illegal recapped tire on its front axle.¹² It would probably take your investigators, working on their own, much longer to uncover that same information.

Drill deeper. The NTSB investigation is a great asset, but it will take you only so far. The agency paints with a broad brush, determining causation and the overall sequence of events, but it typically does not make significant findings related to individual passengers. It will not prove how your client was injured or whether seat belts and ejection-resistant glazing would have saved his or her life. Only you can do that.

Create the story

A bus accident is a story with a beginning, a middle, and an end, and your job is to put the jurors on the bus. They need to experience not only what happened, but also why and how it could have been prevented. Create a seating chart that shows where your client was and where he or she ended up. Use visuals or animation to convey the horror your client felt.

There are too many needless deaths and injuries on America’s buses, but it doesn’t have to be that way. After all, the major airlines have an enviable safety record: There has not been a single fatality on an American air carrier in the last two years. The difference is the airlines’ commitment to putting safety first. Airline regulators take steps to prevent accidents and ensure compliance with regulations.

A similar commitment to bus passenger safety could yield comparable gains in accident reduction and save lives. Until that happens, taking the bus will remain a risky proposition.

Notes:

1. For purposes of this article, the term “bus” means a motor coach designed to carry passengers in interstate travel. It does not refer to school buses or city buses—which have their own serious safety issues—as their safety problems and types of accidents differ from those of motor coaches.
2. See NTSB Accident Rep. HAR-07/01, Motorcoach Fire on Interstate 45 during Hurricane Rita Evacuation near Wilmer, Texas, Sept. 23, 2005, www. ntsb.gov/publictn/2007/HAR0701.pdf; Cecilia Kang, NTSB Seeks Stronger Safety Rules for Buses, Wash. Post D3 (Feb. 22, 2007), www.washington post.com/wp-dyn/content/article/2007/02/ 21/AR2007022101908.html.
3. NTSB Accident Rep. HAR-08/01, Motorcoach Override of Elevated Exit Ramp, Interstate 75, Atlanta, Georgia, March 2, 2007, www.ntsb.gov/ publictn/2008/HAR0801.pdf.
4. Bus in Deadly Crash Had Safety Violation, Officials Say, CNN.com (Aug. 8, 2008), www. cnn.com/2008/US/08/08/texas.crash/index. html; Assoc. Press, Death Toll in Texas Bus Crash Rises to 17 (Aug. 9, 2008), www.cnn.com/2008/ US/08/09/texas.crash/index.html.
5. Andy Furrillo & Sam Stanton, Police: Driver in Crash That Killed 10 on Casino Bus Was Drunk, Sacramento Bee (Oct. 6, 2008), www.mercury news.com/crime/ci_10651378.
6. RONA Kinetics & Assocs., Evaluation of Occupant Protection in Buses, Rep. Prepared for Govt. of Canada, Transport Canada (June 4, 2002), www.tc.gc.ca/roadsafety/tp/tp14006/ menu.htm.
7. NTSB Accident Rep. HAR-08/01, supra n. 3, at 7, 49-51; Roger Saul, U.S. Dept. Transp., Natl. Highway Traffic Safety Admin., Memorandum, NHTSA’s Approach to Motorcoach Safety, at 3-4 (Aug. 6, 2007), www.nhtsa. dot.gov/staticfiles/DOT/NHTSA/Vehicle%20Safety/Articles/Associated%20Files/481217.pdf.
8. Michael Griffiths et al., Three Point Seat Belts on Coaches—the First Decade in Australia 5 (2005), www-nrd.nhtsa.dot.gov/pdf/nrd-01/ esv/esv19/05-0017-O.pdf.
9. Natl. Transp. Safety Bd., Most Wanted Transportation Safety Improvements, Highway Issue Areas, www.ntsb.gov/recs/mostwanted/highway issues.htm.
10. See NTSB Accident Rep. HAR-08/01, supra n. 3, at 49-51; Saul, supra n.7, at 3-4, 9-10.
11. MCI Sales & Serv., Inc. v. Hinton, No. 10-06-00256-CV, 2008 WL 4172643 at *5 (Tex. App. Sept. 10, 2008) (citation omitted).
12. Bus in Deadly Crash Had Safety Violation, Officials say, supra n. 4.

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