Leaving Money on the Table, Part 13 – Wheelchair Tipovers and Corporate Culture – Fixed Route Transit

Like general education schoolbus service, transit service is provided on “fixed routes,” with designated stops in most parts of the country. (“Flag stops” are common in extreme rural areas, where the distance between designated stops can be five, ten, 20 or more miles.) And while children are certainly allowed to ride transit, and a few rare systems are dominated by schoolchildren during AM and afterschool hours (like the Carson Circuit Transit System whose design I directed in 1983 and which I re-designed in 1993 – see https://transalt.com/wp-content/uploads/2018/08/carson_circuit_map_big.jpg and https://transalt.com/wp-content/uploads/2018/08/carson_circuit_schedule_large.jpg ), the majority of passengers are adults – although many are disabled, elderly or others who can present specific problems both in boarding and alighting and while just plain riding.

But many transit officials and drivers alike are indifferent to all or most the passengers – although I have often encountered exceptions. (The exceptions rarely involve physically assisting or even spotting anyone but a wheelchair user getting on or off the vehicle.) In general, many hate and loathe the passengers. But they really hate and loathe wheelchair users. This is largely because the schedules of most routes – if not virtually every route in every large city – are too tight even without the need to board and secure a wheelchair and its occupant into it and then detach and alight the passenger via a lift or ramp at the passenger’s destination – where securement of the chair alone could take several minutes. But unlike non-emergency medical transportation (NEMT) service, transit operators (public or private sector) are paid by the hour – including the time when the vehicle is not moving. So little but (a) tight schedules (see https://transalt.com/article/tight-schedules-part-3-fixed-route-transit-service-2/ ) and (b) bad driver or supervisor attitudes account for the results of a study done a decade or so ago (by Fall & Colleagues) that found that 73.6 percent of all wheelchairs transported on fixed route transit are either not secured at all or poorly-secured.?Under subsection (5) of 49 CFR 38.23(d) – the “two-inch-movement” rule – not secured at all or poorly-secured amount to the same thing: A violation of that passenger’s civil rights. https://transalt.com/article/tight-schedules-part-3-fixed-route-transit-service-2/ ).

In the 1980s, contracting out fixed route transit service was rare or unheard of. During an era just beginning to implement the maldistribution of wealth (the MOW) triggered by President Reagan in 1980, I was actually in favor of contracting out much of transit service – at a time when this thinking was anathema to political and transportation officials in Los Angeles County, even while their transportation bureauracies were bloated, and costs for transit service were astonishing. (Even today, transit services in Los Angeles County recoup only nine percent of their costs from farebox revenue.) ?

Yet, to settle the transit strike of 1993 (by drivers and mechanics of the Southern California Rapid transit District [SCRTD] – the predecessor of soon-thereafter-formed Los Angeles County Metropolitan Transportation Authority (LACMTA), former Los Angeles Mayor Richard Riordan did so partly by the Authority’s agreement to contract out 37 of its more than 200 routes. Of course those contracted out were the routes which most of the Authority’s unionized drivers liked the least – mostly because their schedules were outrageously tight -- even as the drivers committed countless safety compromises see https://safetycompromises.com/ ). ?So the contractors which bid on these routes were stuck with this problem.

As a response to the continued increase in wealth by the Rich, following the MOW (i.e., triggered by former President Reagan’s introduction of a regressive tax structure), more and more transit agencies across the country began to contract out their service (often only certain routes) to private companies. But because of the consolidation achieved by acquisition after acquisition, a few major contractors with deep pockets possess a considerable number of transit contracts – most notably, First Transit (part of the $4B/year U.S. operations of Scottish company First Group), National Express (which like First Group’s First Student subsidiary, also provides schoolbus service) and a few others. Further, because of the core reason for contracting out (i.e., to save money), not only do the tightest, most-undesirable routes get contracted out, but often the least productive routes (the general public rarely can “connect these dots” coherently). One line of which I am familiar, in New Jersey, transports less than a single passenger per vehicle service hour. Since the AVERAGE transit driver secures only 73.6 percent of his or her trip’s wheelchairs, and their users into their chairs, the odds that (a) a contractor (b) with tight schedules and (c) underpaid drivers (often 1099 workers with no benefits whatsoever) will do better is highly unlikely, if not inconceivable.

When the “perfect storm” occurs with such a defendant, and its driver fails to secure a wheelchair, which then tips over – or when the lap and/or shoulderbelts are not affixed to that wheelchair occupant (see https://wheelchairandpassengersecurement.com/ ), the attorney must know that that defendant CANNOT AFFORD TO GO TO TRIAL.?As noted in other posts, wheelchair tipovers are hardly the only safety compromise made by public transportation drivers (see https://safetycompromises.com/ ). However, as much time can be shaved off a tight schedule by failing to secure a single wheelchair than can be shaved off by failing to “kneel” the bus for several score of passengers (see https://safetycompromises.com/failure-to-kneel/ ), by making sharp and/or “rolling” turns (see https://safetycompromises.com/rolling-turns-and-sharp-turns/ ), by stopping on the wrong side of the intersection (see https://safetycompromises.com/stopping-on-the-wrong-side-of-an-intersection/), by speeding (see https://safetycompromises.com/speeding/ ), by zooming away from the stop before a passenger who just alighted can reach a seat or point of securement (see https://safetycompromises.com/speeding/ ) or by other errors or omissions that may save only a few seconds, or a minute or so, per passenger affected by it.

Finally, while certainly not at the level of non-emergency medical transportation (NEMT) service, or even paratransit service, brokers are beginning to make inroads into the transit sector. Like the deep pockets of Uber and Lyft, savvy attorneys should keep a lookout for those occasions where fixed route providers are relying on brokers to then engage private contractors to provide the actual service. The ground for this has been broken by these agencies decades ago when they began to contract out their ADA-required, door-to-door or curb-to-curb “complementary paratransit service.” So as cities become more and more broken, and as fares begin to be eliminated (Kansas City in 2019, and Washington, D.C. this coming 2023 – among other partial cases where certain types of routes did not require fares), savvy attorneys should be on the lookout for brokers involved in fixed route transit. After decimating most cities’ taxi industries, and denting their limousine industries, they have made inroads in pupil transportation in Los Angeles and San Francisco, and are making small inroads in the motorcoach sector. Expect more and more of opportunities to “not leave money on the table” in lawsuits involving fixed route transit service.