Motorcoach (Bus) Crash: Human Cargo - Scott L. Turner

Motorcoach (Bus) Crash: Human Cargo - Scott L. Turner

 

Whenever people are in transit, the stakes are high. All too often we turn on the news to hear of yet another motorcoach crash on the way to a casino, or a busload of children on their way to school or sporting event. In any event, the consequences are typically tragic, at best a minor few injuries.

In this article, I will provide a cursory look at inspection procedures for motorcoach and bus commercial motor vehicles (CMV's), a few regulatory issues, and causation factors.

The USDOT has incorporated motorcoaches and buses into the Federal Motor Carrier Safety Administration (FMCSA) regulations where they, too, are subject to the stringent regulations governing their operations, and rightfully so. However, as in motor carrier trucking operations.

Being FMCSA-trained in motorcoach/bus (hereinafter "bus") and truck roadside inspections, I would like to educate counsel on some of the issues involving bus operations, violations, regulations and other general information. This article, of course, is not an overview of bus operations; it is merely a snapshot. For further information, one must consult the FMCSR (regulations) where the near inextricability of truck and bus regulations reside; specifically parts 382, 383, 387, 390, 392, 393, 395, 396, et al.

A bus inspection is essentially a 22-step process, recommended to be carried out by three FMCSA-trained inspectors. This will likely be changed in the future, to a two-inspector process. As with property-carrying motor carriers, a Commercial Motor Vehicle (CMV) that is in commerce (including buses) can only be inspected by, and notices of violations issued by, a certified FMCSA inspector who is an enforcement officer. In other words, a regular police officer, Trooper or Highway Patrolman cannot issue FMCSA violations without being trained and certified as such by the FMCSA.

As stated previously, motorcoaches and buses are CMV's, with few exceptions. A CMV by FMCSA definition is any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle -

1. Has a gross vehicle weight rating or gross combination weight of 4,536 kg (10,001 pounds) or more, whichever is greater, or
2. Is designed or used to transport more than 8 passengers (including the driver) for compensation or
3. Is designed or used to transport more than 15 passengers including the driver and is not used to transport passengers for compensation or
4. Is used in the transportation of hazardous materials (HM) in a quantity requiring placarding.

Intrastate motor carriers - motor carriers that do not transport outside of their respective state - are governed by state law and not the FMCSA, therefore specific state law regarding motor carriers applies. However, most states adopt the FMCSR verbatim or very near to verbatim.   

Before determining if a motor carrier of passengers meets the applicability of the FMCSR, there are many factors that must be considered.  I will address a few of the questions that must be asked for this determination:

• Is the motor-carrier for hire?
• Is the motor-carrier compensated directly or indirectly?
• Indirect example: A hotel chain offers a shuttle back and forth to their hotel from the airport.
• Direct example: A tour company is compensated by the passengers for a tour of Nashville, Tennessee.
• Is the carrier a private motor-carrier?
• Is the carrier a private motor-carrier of passengers (business)?
• Is the carrier a private motor-carrier of passengers (non-business)?
• Is the carrier a school bus operation?

Specifically for the definitions of the aforesaid, one must consult 49 CFR 390.5., Subpart A - General Applicability and Definitions. There is more information that must be known regarding the motor carrier prior to being certain of the specific regulation parts that must be followed by a motor-carrier; for example, there is a big difference between a motor-carrier that is transporting a country music band around from concert location to concert location, and a motor-coach traveling from Los Angeles to New York, picking up and dropping off passengers along the way.

Insurance Requirements:

The insurance requirements for passenger-carrying motor-carriers were increased in1985. Prior to November 19, 1985 passenger-carrying motor-carriers were required to have only 50% of the coverage required today. After November 19, 1985, such motor-carriers were required to have $5,000,000.00 in coverage for any vehicle with a seating capacity of 16 passengers or more; for 15 passengers or less, the required amount is $1,500,000.00.

Motorcoach/Bus Inspection:

During an inspection of a motorcoach, it is important for the inspection team to be cognizant of the inconvenience to passengers; therefore, typically speaking, the best inspection location is the destination, where the Motorcoach operator has dropped off his passengers: e.g. amusement parks, museums or casinos. Specifically, the following inspection location opportunities are typically available:

• Carrier Facility
• Destination
• En-route

The en route inspection is the type of inspection that should be avoided unless serious or egregious safety violations are observed in-transit. Furthermore, en route inspections can- not be random, as they are with property carrying type CMV's, if passengers are onboard. There must be probable cause to pull a bus over for inspection purposes.

As to destination inspections, an inspection team must be aware of trickery that may be played by the carrier. If they know a bus is questionable, they simply state that the bus is in for repairs. Therein lays the justification for destination inspections. The bus is in an "as is" operational state; therefore, no excuses. However, carrier facility inspections are typical for post-crash inspections unless the vehicle has been impounded. If the CMV is stored post-crash at the carrier's facility, spoliation can be a concern.

A good example of an inspection at a destination location is at an amusement park. The passengers are out of the bus for an eight hour or so day. The driver is available with all of his required documentation.
As for required driver documentation, a driver should be required to produce the following, at minimum:

• Driver's License/CDL with proper endorsement(s)
• Operating authority
• Medical Certificate or Waiver/Skills Performance Evaluation Certificate (if applicable)
• Record-of Duty status (for driver and *co-driver [*if applicable])
• Shipping Papers (if HM is present)
• Driver's Daily Vehicle Inspection Report (DVIR) (if available)
• Documentation of Periodic Inspection
• Any other documentation (i.e. registrations, trip envelope, proof of insurance, tour itinerary, charter orders, interline agreements, toll receipts, fuel receipts, etc.)

In general, the hours-of-service rules for passenger-carrying motor-carriers differ from that of property carrying motor-carriers (trucks). A snapshot of a property-carrying motor-carrier's hours-of-service is 11 hours of driving time in a 14 hour on-duty status period.  This restricts the driver from driving over 11 hours or past the 14^th hour. In addition, the property-carrying motor-carrier must get 10 hours of rest; again, this is very general.

As for passenger carrying motor-carriers, the general 10 hour rule is as such: a driver may not drive more than 10 hours following eight consecutive hours off-duty. As to the 15 hour rule, again, the driver may not drive after being on-duty 15 hours following eight consecutive hours off-duty.

Causation:

One of my favorite subjects in any crash is investigating "causation," second only to performing post-crash inspections, the importance of which is often underestimated by counsel.

What follows is a list of many potential causation factors with applicable notations:

• Distracted driving: Distracted driving comes in many forms. It takes a keen eye to uncover why a bus crashed in the first place. Several examples are, but of course not limited to: 
• Cell phone/texting - As of January 3^rd, 2012, the FMCSA prohibited the usage of cell phones while operating any CMV.
• Other electronic devices: I-Pods, GPS systems, etc.
• Passengers conversing with the driver causing inattentive driving.
• It is an FMCSA violation for the driver to be able to see the television screen in a motorcoach, Van-Hool (double-decker) type bus, or any bus for that matter. 

• Fatigued driving: often discovered through keen post-crash gumshoe investigation. It is not difficult to determine falsification of logs if one knows where to look and how to look. I use the term, "Record-of-Duty Status Forensic Audit" for figuring out if a driver was in compliance.
• Speeding and/or careless driving: often this information is available by ECM data, GPS systems, EOBR's, logbooks, EZ Pass (electronic toll pay systems), toll receipts, deposition statements of witnesses and passengers.  
• Equipment failure: the potential for equipment failure exists, but is often not the cause of a crash.  Typical equipment failure can include, but is not limited to the following:
• Tire blow-out - The tire should be closely examined by a tire expert, a true tire specialist. As a side note; retreads, recaps and re-grooved tires are forbidden on the steering axle. However, the tire may say "re-groovable" but not having been re-grooved.  
• Brakes - Brake types, chamber sizes, pushrod stroke, air system leaks, airline chaffing, s-cam flip-over, insufficient brake shoe friction material, treadle valve air leak, air loss rate, etc.
• Suspension; broken suspension, leaking air bag(s)
• Steering wheel lash - determining how much play is in the steering wheel. Steering wheels with too much play can cause under or over correction in an emergency action, thereby causing a bus to roll-over.
• Exhaust system - exhaust leaks into the bus cabin area can cause carbon monoxide asphyxiation. Chemical-asphyxiation will cause confusion and poor judgment followed by possible death or long term health issues.
• Encroachment of a car or other CMV into the bus's space cushion causing over-reaction, over-correction, or maybe there was nothing the bus driver could do to avoid the impending crash. 
• Vehicle dynamics: the most common dynamic to affect a motorcoach's performance is center-of-gravity (COG), most common in Van Hool (double deckers). 

There are many other issues surrounding causation that must be investigated on a motorcoach crash. There are potentially indirect causation factors that must be considered, such as driver history, driver's health condition and driver training to name a few. These factors may also exonerate the good and responsible driver.

Investigating a CMV crash, performing post crash inspections and researching a carrier's history in any CMV crash is no time for conjecture. The facts must bear out the truth of what happened. It is only by experience that a CMV crash can ultimately be determined as to why and how? The stakes are high for both plaintiff and defense.

© 2013-2015

Scott L. Turner

SLTurner@SLTurnerConsulting.com