Trial Magazine

Millions of Americans rely on buses every day. They come in a dizzying array of shapes, sizes, and purposes—from ticket-based operators that transport passengers across the country to local tours that transport people even on water. (Yes, those scary duck boats are buses.) In 2017, U.S. public buses transported more than 4.7 billion passengers; by contrast, domestic airlines carried approximately 741 million passengers.¹

But when people are injured or killed in bus crashes, you can’t approach the case as merely another motor vehicle collision—you must have a full understanding of the different bus categories and the various duties of care before you begin. Here are some strategies for navigating what can be a rather complex route to justice.

First Stop

A patchwork of regulations. The Federal Motor Carrier Safety Regulations (FMCSR) broadly define a bus as “any motor vehicle designed, constructed, and/or used for the transportation of passengers, including taxicabs.”² The regulations narrow this somewhat for commercial motor vehicles to specify vehicles “designed or used to transport more than 8 passengers (including the driver) for compensation” or “designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation.”³ However, much like the type and size of a bus is not uniform, no one set of statutes, regulations, or policies controls every type of “bus.”

Knowing where to look is half the battle. The U.S. Department of Transportation (DOT), through its Federal Motor Carrier Safety Administration (FMCSA), has issued the FMCSR to govern most commercial motor carriers, including buses.⁴ Although some buses are exempt, the FMCSR generally provide the standards for how buses are to be inspected and maintained and also govern fitness, qualifications, training, and supervision of commercial drivers.⁵ In addition to FMCSR that list required parts and accessories on buses, the Federal Motor Vehicle Safety Standards (FMVSS) set forth minimum design and manufacturing standards.⁶

When a bus crash occurs, the National Transportation Safety Board (NTSB) often investigates because crashes are frequently catastrophic and raise significant safety issues that fall within the agency’s scope.⁷ While its findings are expressly inadmissible, the NTSB investigation can provide a good road map. For example, the NTSB will ­interview witnesses, examine documents, perform an accident reconstruction, and possibly conduct testing on exemplar vehicles or create animated crash simulations—all of which may uncover or highlight important claims, defenses, and evidence.

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If a carrier does not engage in interstate travel, the federal regulations may not directly apply. But be familiar with them because most states have adopted them to some degree and with exemptions.

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If a carrier does not engage in interstate travel, the federal regulations may not directly apply. But be familiar with them because most states have adopted them to some degree and with exemptions.⁸ Finding the relevant state regulations when the federal regulations do not apply can be more challenging. How and where a bus operates often dictates the applicable regulations. For example, a municipal bus may be governed by municipal regulations or state government codes, and a school district’s bus services can be regulated by the state’s education code or possibly the school board policies. Start with the broad national rules, then look more closely at local regulations as the scenario dictates.

Duty of care. Although most vehicular cases, including trucking cases, use the basic standard of reasonable care, a bus driver’s duty of care often depends on the bus carrier operations.⁹ A common carrier holds itself out to the public as ready and willing to serve the public impartially, so it has a duty to receive all passengers who buy a ticket as long as room is available and no legal excuse exists for refusing them—such as a passenger appearing extremely intoxicated.¹⁰ This almost always applies to municipal buses and to interstate motor carriers for hire. A private motor carrier undertakes to deliver passengers by special agreement or contract to transport certain people from one place to another—either for free (such as a school bus) or for hire (such as a chartered tour bus).¹¹

A common carrier has a much higher duty to its passengers: Most states require common carriers to exercise the utmost diligence, skill, and foresight to keep passengers safe.¹² A private carrier, by contrast, must use ordinary, reasonable care under the circumstances.¹³

Insurance requirements. Despite the widespread use of bus transportation, the protection afforded to passengers and compensation for those injured or killed on buses has lagged far behind what should be considered minimally adequate. Under the FMCSR and in states that have adopted these regulations for intrastate carriers, any commercial vehicle with a seating capacity of 15 or fewer passengers must carry $1.5 million in coverage, while any commercial vehicle for hire with a seating capacity of 16 or more must carry $5 million.¹⁴ Those levels were set in 1985 and have remained unchanged. If the carrier is intrastate only and is not a ­for-profit carrier, the insurance ­requirements may be less. Typically, each state will set its own coverage requirements for those carriers.

Carrier Types

Buses tend to fall into particular categories, and identifying the category into which your bus falls is important since this will govern the applicable standard of care, regulations, and coverage issues.

Private for-profit interstate carriers that use a ticket-based approach (think Greyhound). These are most likely common carriers, which means they must exercise the highest duty of care and will be governed by the FMCSA and its regulations. The size of the carrier often dictates the insurance available. Large carriers like Greyhound typically have appropriately high levels of coverage.

However, many private curbside carriers, such as the no-name carriers that pick up in New York City’s ­Chinatown, are seriously underinsured for the volume of their business, operate in a highly dangerous fashion, and conduct their businesses under multiple shell companies to hide ­ownership. When one of these carriers suffers a serious crash, there are often multiple fatalities and dozens of serious injuries—making recovery a significant challenge.

Private for-profit carriers that operate either intra or interstate but function on a charter or tour bus basis (think tours to the Grand Canyon or Atlantic City casinos). These likely will be treated as a private carrier, although the question of ticket purchases becomes important in discovery to determine the standard of care—if people can buy individual tickets, this could impose the higher common carrier duty of care.¹⁵ If there is any doubt, plead both carrier standards of care in the complaint. The FMSCA governs interstate carriers, while a local operator falls under the state’s authority. A quick check to the FMCSA Safer website should tell you whether the carrier has a DOT operating license,¹⁶ even when the type of vehicle might not immediately appear to be a “bus.”

Remember that not all buses look like buses. A limousine with a capacity for more than eight passengers that drives from Las Vegas to the Grand Canyon would be considered an interstate bus carrier for the purposes of these regulations.¹⁷ Again, the size of the operator often determines the levels of insurance. However, the minimum typically required by states is $1.5 million for smaller “van” type vehicles and $5 million for larger buses, since this generally tracks the federal requirements. Remember, seating capacity dictates the coverage and regulatory requirements, not the number of passengers at the time of the crash.

Private for-profit intrastate carriers (think local hop-on/hop-off tour buses). They likely will be considered a common carrier because they typically sell tickets.¹⁸ Again, assess their ticket purchasing policies during discovery to ensure that you can establish common carrier status. Because they operate solely within the state, they probably are covered by the state’s motor carrier laws, even if they are listed on the FMCSA website. That said, if it has a DOT listing, the carrier should be familiar with and implementing federal safety regulations throughout its operation. Again, the size of the operation dictates any insurance beyond the mandatory minimums.

Government carriers (think school buses and municipal buses). First, most municipal buses are common carriers while most states consider school buses private carriers. School bus drivers must simply exercise reasonable care, but it must be reasonable care under the circumstances, which is often dictated by the age and abilities of the children.¹⁹ Regulations for municipal carriers and government-run school buses likely will not be identical to those governing privately owned carriers.

This brings up an emerging issue that impacts a large number of school buses.²⁰ In the past, most school districts ran their own transportation departments and, therefore, plaintiffs were subject to any damages cap, immunities, and other regulations applicable to government entities. In recent years, many districts have begun using private contractors to provide some or all transportation services. Therefore, in some states, the damages cap or government immunities for discretionary acts when the wrongdoer is a government entity may not apply if a negligent driver works for a private contractor. However, this is by no means universal.²¹ Be sure to investigate recent rulings on the subject.

Carefully examine education, government, health and safety, or vehicle codes, as well as local municipal regulations or school district policies for specific requirements for bus maintenance, stops, routes, and driver responsibilities and qualifications. School bus regulations can trigger negligence per se when the violation directly results in injury to a child. In Ohio, a bus driver was negligent per se because a statute expressly prohibited the driver from starting the bus before the child reached the safe side of the street.²²

Statutory regulations are particularly helpful in overcoming any claims of sovereign immunity by the municipality or school district because a government entity cannot use its discretion to violate a statute.²³ Time frames for making claims against a government entity are often tight. For example, in California, a plaintiff usually has six months to file a claim with the government entity (not the court) to preserve the right to file a lawsuit. And there is no tolling for minors.²⁴

Private noncommercial carriers (think church buses or nonprofits for elderly or medical transit). These are considered private carriers because they are directed to transport a specific group to a specific place. Many of them are expressly exempt from the regulations governing most carriers, including minimum insurance requirements. Federal regulations specifically exempt private nonprofit carriers such as church organizations from many regulations, including those requiring full medical certification.²⁵ When you encounter cases involving these types of carriers, alert clients to these realities and the difficulty of recovery.

Tools and Tips

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

Damages caps. The majority of states (approximately 28) have a cap on damages against any government entity of just $500,000.²⁶ More than one dozen states have set damages caps of less than $300,000 and a maximum available for all claims arising from a single incident of no more than $500,000.²⁷ Given these obstacles, you must evaluate the causes of injury or death very specifically and think outside the box.

Potential defendants and causes of action. Buses are wildly diverse, making potential defendants just as varied. And given the hurdles in dealing with insurance levels or government entities, it’s important to assess all other possible wrongdoers. The driver and motor carrier operating the bus are the obvious defendants, but depending on the circumstances, consider the following potential defendants:

• a tour company that organized the bus trip
• a maintenance company contracted to service or repair the bus
• a casino that contracts with bus companies and advertises “free” rides to patrons
• a private contractor who provides safety training to drivers or supplies the drivers themselves
• the bus manufacturer or distributor, if facts indicate a product defect in the bus itself.

In addition to the obvious claim of negligence against the bus driver or operator, be sure to consider others such as products liability; negligent entrustment, hiring, training, and supervision;²⁸ and negligence per se.²⁹ Because a product defect case can be costly, it might be feasible only in certain circumstances. As to the defect, evaluate bus components and systems, including crash avoidance technology, ­forward-collision warning systems, and automatic braking; fire resistant interiors; school bus emergency exit doors; roof strength; and seat belts. For instance, in litigation arising from a failed rear axle wheel bearing assembly that sparked a fire in a bus, trapping and killing nursing home residents trying to evacuate during Hurricane Rita, ­plaintiffs named the bus manufacturer; the designer of the axle and rear wheel assembly; and SKF Industries, a component maker.³⁰

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A typical accident reconstructionist or trucking expert may not have the appropriate background to be helpful.

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Select the right expert. A typical accident reconstructionist or trucking expert may not have the appropriate background to be helpful. Since buses are subject to governance that varies widely by state, by city, by school district, and even by purpose, having an expert with a background in these regulations is critical. For example, in a recent case in California, our expert had experience running a large school district’s transportation department and could testify about the reasonableness and efficacy of a policy for bus drivers to report families who crossed the street mid-block to reach a bus stop.

Preserve the evidence. While federal agencies investigating large crashes is a benefit, the investigations can take a very long time, may concern factors that have no direct bearing on liability, and are even subject to influence from input by large carriers. Use their work as a road map, but independently review the evidence. For example, today most buses have some type of video surveillance on board with multiple angles, including inside and outside the bus. Get the video footage as early as possible—including the entire trip. Often, events earlier in the trip offer clues to how the incident occurred, but the bus company typically will give you only the minute before the crash.

Don’t go it alone. With any large bus crash, the ensuing litigation likely will be complex and involve many attorneys representing multiple victims. Use as many resources as possible, including joint prosecution agreements, AAJ Litigation Groups,³¹ and local trial bars that can provide helpful list servers and expert recommendations.

Buses have become a massive public transportation resource, so it is paramount that safety and justice do not take a backseat. Preparing a bus case with these considerations in mind goes a long way to this goal.

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Katherine Harvey-Lee is an attorney at Arias Sanguinetti Wang & Torrijos in Los Angeles. She can be reached at kate@aswtlawyers.com.

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Notes

1. Am. Pub. Transit Ass’n, Quarterly and Annual Totals by Mode (2018), https://www.apta.com/resources/statistics/Pages/ridershipreport.aspx; U.S. Dep’t of Transp., 2017 Traffic Data for U.S Airlines and Foreign Airlines U.S. Flights (Mar. 22, 2018), https://www.bts.gov/newsroom/2017-traffic-data-us-airlines-and-foreign-airlines-us-flights.
2. 49 C.F.R. §390.5T (2018).
3. Id.
4. Fed. Motor Carrier Safety Admin., Policy, https://www.fmcsa.dot.gov/mission/policy.
5. See 49 C.F.R. §§396.3, 396.9–396.25 (inspections); §§383.110–383.123, 391.1–391.65 (qualifications and fitness); §§392.1–392.82 (required safety precautions).
6. See 49 C.F.R. §§393.9–393.94 (FMCSRs); 49 C.F.R. §§571.101–571.500. However, just as in litigation against passenger vehicle manufacturers for design and manufacturing defects (such as a lack of seat belts or poor roof strength), ample case law has established that an FMVSS (or lack thereof) does not preempt state products liability claims against bus manufacturers. See, e.g., Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861 (2000); Doomes v. Best Transit Corp., 958 N.E.2d 1183 (N.Y. 2011); Lake v. Memphis Landsmen, LLC, 405 S.W.3d 47 (Tenn. 2013); MCI Sales & Serv., Inc. v. Hinton, 272 S.W.3d 17 (Tex. App. 2008), aff’d, 329 S.W.3d 475 (Tex. 2010).
7. See Nat’l Transp. Safety Bd., FY 2018–2022 Strategic Plan, OMB Final Submission (Dec. 2017).
8. See, e.g., Iowa Code Ann. §321.449 (West 2018); Or. Admin. R. 740-100-0010 (2018). 
9. See, e.g., Huang v. The Bicycle Casino, Inc., 208 Cal. Rptr. 3d 591, 598–99 (Cal. Ct. App. 2016).
10. 14 Ohio Jur. 3d Carriers §1 (2018).
11. 49 C.F.R. §390.5T. 
12. E.g., Carlson v. Chi. Transit Auth., 10 N.E.3d 426, 431 (Ill. App. Ct. 2014); Dietrich v. Cmty. Traction Co., 203 N.E.2d 344, 347 (Ohio 1964); Korner v. Cosgrove, 141 N.E. 267 (Ohio 1923); see also Gomez v. Super. Ct., 113 P.3d 41, 44 (Cal. 2005).
13. E.g., Long v. Ill. Power Co., 543 N.E.2d 525, 535 (Ill. App. Ct. 1989). 
14. 49 C.F.R. §387.33T.
15. See, e.g., Huang, 208 Cal. Rptr. 3d at 598–99.
16. See U.S. Dep’t of Transp., Safety and Fitness Electronic Records (SAFER) System, https://safer.fmcsa.dot.gov/CompanySnapshot.aspx.
17. 49 C.F.R. §390.5T.
18. See, e.g., Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976).
19. 57 Am. Jur. 2d Municipal, County, School, and State Tort Liability §577 (2018); 57A Am. Jur. 2d Negligence §§204–206 (2018); see also Hunt ex rel. Gende v. Clarendon Nat’l Ins. Serv., Inc., 691 N.W.2d 904 (Wis. Ct. App. 2004).
20. An in-depth discussion of this issue is beyond this article’s scope but should be looked at when handling such cases.
21. See, e.g., Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 844–45 (Tex. 2018) (“[T]he statute does not extend immunity to private contractors, but instead limits the liability of private contractors performing an essential governmental function . . . and they are therefore subject to the same liability limits as FWTA would have been had it performed those same functions.”).
22. Sallee v. Watts, No C-130122, 2014 WL 812452, at *2 (Ohio Ct. App. Feb. 28, 2014).
23. See, e.g., Jong Ja Jun v. Chaffey Joint Union High Sch. Dist., 2014 WL 2433720, at *9 (Cal. Ct. App. May 30, 2014).
24. Cal. Gov’t Code §§911.2, 911.4 (West 2018).
25. 49 C.F.R. §391.68.
26. Scott H. Moulton, 50-State Analysis of Liability Damages Caps Compendium of Law, U.S. Law Network, Inc. (2017). 
27. Id.
28. Some states, such as California, may not separate an employer’s negligence from the employee driver or allow evidence of such negligence into court. See, e.g., Diaz v. Carcamo, 253 P.3d 535 (Cal. 2011). However, in appropriate jurisdictions, these causes of action should be pleaded and may be helpful when a third-party defendant, such as a tour operator, is responsible for hiring the bus company. 
29. See Amir Vera, Eric Levenson & Dakin Andone, Chattanooga School Bus Driver Found Guilty of 6 Students’ Deaths in Crash, CNN (Mar. 2, 2018), https://www.cnn.com/2018/03/01/us/chattanooga-school-bus-driver-trial/index.html; see also Tenn. Code Ann. §29-39-102(h)(4) (West 2018).
30. Terri Langford, Settlement Over Hurricane Rita Bus Fire Brings Closure, Hous. Chron. (June 4, 2009).
31. AAJ has a Bus Litigation Group for members handling bus, school bus, motor coach, and recreational vehicle litigation. To join, visit www.justice.org/litigation-groups/bus or call (202) 965-3500, ext. 8700.