John D. Winer, San Francisco
A. The Law of Bus Accident Cases May Differ Depending on Who Owned the Bus and Whether or Not the Victim Was a Passenger on the Bus.
Depending upon the following circumstances, the liability and responsibility for damages to a person injured or killed in a bus accident may differ:
- was the bus owned by a public entity or private company?
- was the plaintiff a “passenger” on the bus or someone who was otherwise involved in an accident with the bus?
As will be stated in more detail below, if a bus is owned and operated by a public entity, i.e., a government entity, such as the Municipal Railway in San Francisco, the same limitations that apply to all government liability cases will apply to accident involving buses, independent of whether the plaintiff was or was not a passenger on the bus.
The most significant of these limitations is that a claim must be brought against the bus company and/or public entity within six months of the date of the accident (or the date that the cause of action accrued); a settlement or verdict over $500,000 can be paid out over time; and the plaintiff is not entitled to recover punitive damages. If the bus is privately owned, none of the above limitations apply.
If the plaintiff is a passenger on the bus, the bus company, whether public or private, owes that plaintiff the “utmost duty of care” because it is considered under law to be a “common carrier.” This will be explained in detail below; however, this duty of utmost care owed to passengers is higher than the ordinary negligence duty owed by the bus company to drivers of other vehicles and pedestrians.
B. Who Can a Bus Passenger Sue.
A bus passenger is not limited to suing a bus driver or bus company in the case of an accident. Rather, the passenger can sue anybody who is responsible for their injuries including another vehicle driver that causes the collision, a dangerous condition of public or private property that causes the collision, the manufacturer and supplier of the bus or any other person or entity who negligently contributed to the injury or death.
The spouse of the injured plaintiff can also bring a lawsuit for loss of consortium damages; that is, damages for the loss of society, comfort and care of the injured plaintiff. See the section on Damages in this article.
C. Cases Against Buses That Are Owned and Operated by Public Entities.
i. Limitations in public entity cases apply to cases involving a publicly-owned bus company.
Cases against bus companies that are owned or operated by public entities are subjected to all of the limitations and pleading requirements that apply to any government liability case. Most significantly, this includes:
a. A special claim requirement that shortens the ordinary one-year statute of limitations.
A formal, written claim with certain procedural requirements must be brought against a public entity within six months of the date of the accident (or the accrual of the cause of action). There are exceptions to this claim requirement so a potential plaintiff should still seek the advice of an attorney if they believe that they have been injured or a loved one killed by a public entity bus.
b. Installment payments allowed.
Any verdict for over $500,000 can be paid in installments at the public entity’s election.
c. No punitive damage award against the public entity.
There can be no award for punitive damages against the public entity itself, although there can be an award against the bus driver or any other public employee responsible for the accident.
d. Some immunities may apply.
In certain cases in which the plaintiff is claiming that something other than the negligent operation and maintenance of the bus caused or contributed to the accident, a public entity may have immunities which a private bus company would not have. For instance, a public entity may be immune from liability for the negligent design of a bus route.
ii. Dangerous condition of property cases involving bus stops or buses owned by public entities.
a. Higher standard of proof for dangerous condition cases against public entities.
When a case involves an allegation of dangerous condition of public property, such as the design of a bus or a bus stop, a plaintiff must establish more than the mere existence of a dangerous condition and the public entity may be immune for the design of the bus and the bus stop under certain circumstances.
iii. Standard for public entity liability when bus accident involves a dangerous condition of public property claim.
A public entity is only liable for an injury or death proximately caused by a dangerous condition of its property if the property created a reasonably foreseeable risk of that kind of injury, and either the entity’s employee created the dangerous condition within the scope of employment or it had actual or constructive notice of the condition in time to have taken protective measures.
a. Substantial defect requirement.
For a condition to be dangerous, it has to create a “substantial” not “trivial” risk of injury when the property is used in a foreseeable manner.
b. Notice requirement.
Further, the public entity must have notice of the dangerous condition involving the bus or bus stop unless it created it.
c. Design immunity.
Further, if it did create the dangerous condition, it may be immune under “design immunity” if the public entity can establish that the alleged dangerous condition was caused by a “defect” in the plan or design of a public improvement, such as a bus stop or bus route, if:
- a causal relationship existed between the plan or design and the accident.
- the entity or an employee exercising discretionary authority approved and advanced the plan, design or standards for it.
- substantial evidence supported the reasonableness of the plan or design.
iv. Dangerous conditions created by privately-owned bus cases do not have any of the special restrictions, limitations and immunities listed above.
Cases against privately owned busing companies for negligent maintenance and operation of a bus or a dangerous condition of its own property, do not contain the same restrictions, limitations and immunities that apply to public entities.
D. Duty of a Public Entity or Private Bus Company to its Passengers.
i. Common carrier duty generally.
As previously mentioned, either a public entity or private bus company owes the “utmost duty of care” to its paying passengers because it is a “common carrier” under the law. The law recognizes that passengers who are paying an entity to transport them safely are entitled to special protections.
ii. Obligation of a common carrier.
A common carrier must, if able to do so, accept and carry whatever (and whomever) is offered to it and must not give preference in time, price or otherwise to one person over another.
iii. Bus company must not discriminate.
Thus, liability can be established for discriminating against one person or a class of people, and the discriminatory rejection or ejection of passengers can lead to liability.
There are exceptions such as danger to other passengers in which a common carrier would not be found liable for rejecting or ejecting a potential passenger.
iv. The special duty of a common carrier to passengers.
A bus company that transports passengers in exchange for money must use the utmost care and diligence for their safe carriage, provide everything necessary for that purpose, and exercise a reasonable degree of skill.
A bus company must do all that human care, vigilance and foresight can reasonably do under the circumstances and is responsible for even the slightest negligence.
However, a bus company is not an “insurer” and is not liable for injury to its passengers without some negligence on its part.
Further, the bus company must exercise the utmost care to provide safe, suitable and efficient buses for the conveyance of passengers. This includes servicing, inspecting and maintaining its equipment.
A bus company cannot escape liability by claiming that another company improperly maintained the bus or improperly manufactured the bus.
v. Common carrier’s duty to protect passengers from assault.
A bus company may be liable for failing to use the utmost care and diligence to prevent one passenger from injuring another.
However, even under the “utmost care” standard, a bus company is not liable for failing to prevent an attack that it did not know, or should not have known, was about to occur.
Further, in the case of public entities, there may be additional immunities from liability from assaults of third persons on passengers.
vi. When the duty of utmost care begins.
a. Intent to board manifested of acceptance of a passenger begins the utmost duty of care.
A person may become “a passenger” and the bus company’s special duty to them may begin even before the person boards the bus when:
- the person puts himself or herself under the bus company’s control or otherwise manifests an intent to board; and
- the bus company or bus driver manifests acceptance of the person as a passenger.
b. Examples of situations in which common carrier liability has been found.
A bus company can be found liable to a boarding passenger if it:
- it fails to maintain safe steps or entrances.
- closes the door on a passenger.
- starts the bus before the passengers are safely seated.
- starts before a passenger is safely aboard.
- attempts to load a passenger in an unsafe place.
Further, a public entity can be responsible for a passenger exiting a bus under the same circumstances listed above.
vii. When the duty of common carrier ends.
Discharge of the passenger from a bus does not terminate the utmost duty of care until:
- the passenger has safely alighted at a relatively safe place out of the way of other traffic.
- is no longer exposed to risks of the bus’s operation.
viii. Common carrier liability can extend to maintenance of bus stations.
Under certain circumstances, a bus company is even responsible to utilize the utmost care in maintaining bus stations. The bus company has a duty to stop its bus at a place reasonably safe for passengers to board and alight and must use the utmost care in maintaining stations and conducting operations in them to avoid injury to boarding or alighting passengers.
ix. Duty to assist passengers limited.
Other than people with disabilities, a bus company has no duty to assist passengers in boarding or exiting from the bus. However, the company has a duty to give each passenger “a reasonable degree of attention” and once a bus operator does undertake to assist a passenger in boarding or exiting, he or she must use due care in doing so.
Further, a bus company must give special assistance to a passenger who needs it because of age, illness or other condition, if this need is known or apparent.
E. Effect on a Plaintiff’s Negligence in Bus Accident Cases.
A plaintiff, even a passenger on a bus, has a duty to exercise reasonable care to protect himself or herself from injury. Thus, a bus company can be found liable for a plaintiff’s injury, yet the plaintiff’s damages will be reduced on the basis of their own “comparative negligence.” In other words, if a plaintiff is awarded $1,000,000 in damages against a bus company, but the jury finds that the plaintiff somehow negligently contributed to that injury, and a jury finds the plaintiff to be 20% at fault, the plaintiff’s verdict will be reduced 20% from $1,000,000 to $800,000.
However, a plaintiff is entitled to argue that his or her duty of care to protect himself or herself is not as not as high as the bus company’s to protect the plaintiff from harm if the plaintiff is a passenger on the bus or a pedestrian.
F. A Bus Company’s Liability to Non-passengers in Vehicular Accident Cases.
i. Duty of bus companies generally to non-passengers.
Both public and privately-owned bus companies, owe a duty to pedestrians and other vehicle drivers and passengers, to maintain and operate their buses in a reasonably safe and prudent manner.
ii. Bus operators have same duties to drive safely and maintain the bus as other drivers.
A bus operator has the same responsibility as any other vehicle operator to drive safely and avoid accidents with others. Further, the bus operator and bus company owes the same duty of care as any other vehicle owner or driver to maintain the vehicle in a safe operating condition.
iii. If bus operator is within course and scope of duties when negligent conduct causes an accident, the bus company will be found liable.
If the bus operator is found to be in the course and scope of his or her duties, the bus company will be found responsible for any injuries caused by the bus operator’s negligence.
iv. Reasonable duty of care standard.
Although the bus company does not owe a non-passenger the same “utmost duty of care” it owes its passengers, it still owes non-passengers a duty of “reasonable” care.
G. Bus operators owe special duties to use care if pedestrians, especially children, are known to be in the area.
When a case involves an accident between a bus and any other vehicle or pedestrian, the same rules that apply to motor vehicle cases generally apply to cases against bus companies. For example, pedestrians are considered to have special protections and a bus operator must use extra diligence when the operator knows pedestrians, particularly children, are in the area.
H. Investigation in Bus Accident Cases.
An early and thorough investigation is critical in any motor vehicle case involving a serious injury or what may become a serious injury. A good plaintiff attorney should hire an investigator to go immediately to the scene of an accident. Even if the police report is not prepared, it is generally advisable to send a private investigator to the scene to document the state of the accident scene as close in time to possible to the date of the accident. Although this is sometimes difficult without a police report, particularly if the accident victim does not remember how or where the accident happened, but usually there is some clue. Skid marks can fade quickly; debris from the vehicles may be blown away or cleaned up and, in a case where partial fault of the accident may be due to a dangerous condition of public or private property, the condition may quickly be changed by the owner of that property.
Once the police report is obtained, it is then important for the private investigator to go to the scene, sometimes with an expert witness such as an accident reconstruction expert, to check on the accuracy of the police report and fill in some of the critical areas which might not be covered by a police report.
Most police officers hate preparing thorough reports because they feel like they are only doing the bidding of insurance companies and plaintiff’s lawyers and, in their reasonable desire to clear an accident quickly so that traffic can resume, they tend to make estimates rather than take actual measurements and, due to their haste, will fail to identify and interview all of the witnesses and make mistakes on the report.
A mistaken measurement of just several inches may make the difference between a plaintiff winning or losing a case when accident reconstruction experts are later hired to help determine fault.
Obviously, a missing eyewitness may provide critical testimony which will turn a case one way or another. Thus, every effort should be made to locate all possible witnesses. In addition, one should never rely on a statement given by a witness to the police. A police officer will usually spend five minutes interviewing a witness while scratching down notes while a private investigator hired by a plaintiff’s attorney may want to spend several hours with the witness, clearly going over the testimony. Statements should be obtained from favorable witnesses.
One thing is certain: as soon as the accident is reported by the other driver, the insurance company investigator will be at the scene within hours, if not minutes.
I. The Use of Experts in Determining Fault.
i. A variety of experts may be retained in a bus accident case.
In many situations, the parties to a lawsuit hire experts to attempt to persuade an arbitrator, judge or jury on the issue of fault. There are many different types of experts who can testify in a motor vehicle case including accident reconstruction experts, mechanical engineers, human factors experts, biomedical accident reconstruction, and biomedical engineers and photogrammery experts.
ii. What will experts rely on to reach opinions?
The accident reconstruction experts witnesses will, to some extent, rely upon the testimony of the witnesses and participants to reach their conclusions regarding the causative factors in an accident; however, they mostly rely upon the physical evidence available for review. For instance, the speed of a vehicle can frequently be determined by the length and nature of skid marks and the nature and extent of motor vehicle damage at impact. The point of impact itself is frequently in dispute and can sometimes be determined by the location of debris, i.e., shattered glass and metal, that is left when the vehicles come to rest.
iii. Use of human factors experts.
Human factors is an area of expertise that most lay people do not know about, yet it can be important in determining fault in a bus accident case. Human factors experts are generally people who have a combination engineering and psychology background. They can testify to subject matter such as how drugs or drinking can effect a driver’s perception and reaction time and how a vehicle driver can be expected to act once he or she perceives a danger.
iv. Use of biomedical and biomechanical engineers.
Although their testimony is usually more significant in proving causation rather than fault, biomedical and biomechanical engineers may be called upon to investigate an accident to determine the forces involved in the accident and how these forces can cause an injury.
v. Photogrammery experts.
In some cases, if the damages warrant it, the parties might hire photogrammery experts who will attempt to create a series of photographs, a film, video or computer animation or simulation which are produced to attempt to simulate the accident and demonstrate to the jurors factors which the parties believe will help them win their case. For instance, when one side is attempting to prove that he or she did not have time to avoid an accident, that side might attempt to produce a film which would demonstrate that the other vehicle flashed in front of the driver and the driver would have had no time to perceive the danger and take appropriate evasive action. These reproductions can be very costly but very useful.
vi. Experts cannot give their opinions as to fault.
Like police officers, expert witnesses cannot give their opinions as to fault. They can only testify to the causative factors of the accident. Only the trier of fact can decide the ultimate facts.
J. Compensatory Damages in Bus Accident Cases.
In a bus accident case, plaintiff can recover for past medical expenses, future predicted medical expenses, past wage loss, future predicted wage loss and for past and future pain and suffering.
The medical expenses are determined by the testimony of physicians or other health care providers. Frequently, an economist or an expert in the industry determines the amount of future wage loss; however, no expert can testify to the value of pain and suffering.
Pain and suffering is typically the most significant element of a plaintiff’s damage and it includes emotional distress. Contrary to popular belief, there is no formula for pain and suffering awards and it varies greatly from case to case depending upon the location of the case, the seriousness of the injury and how well the case is presented.
K. Punitive Damages.
Under California law, if a plaintiff can prove that the conduct of the wrongdoer was fraudulent, malicious or despicable, he or she is entitled to recover punitive damages which are intended to punish the wrongdoer and provide an example for the rest of society. The focus of this type of case is generally on the wrongdoing of the defendant as opposed to the injury to the plaintiff. The amount of punitive damage will vary depending upon the heinousness of the defendant’s misconduct and its economic status. The law recognizes that large companies have to pay more money in punitive damages to be adequately punished than small companies or individuals. In motor vehicle cases, punitive damages are most frequently awarded against drunk drivers. Punitive damages are not available against governmental entities.
L. Claim for Loss of Consortium.
A plaintiff’s spouse can also sue and recover damages for ‘loss of consortium.” A spouse is allowed to recover damages for the loss of society, comfort and care that result from the injured spouse’s unavailability due to the injury. In order to recover these damages, a spouse must be named as a party to the lawsuit and must have been married to the plaintiff at the time of the injury.
There are advantages and disadvantages to filing a loss of consortium claim that should be discussed with an attorney before filing.
M. How Soon Must a Personal Injury Case Be Brought After an Accident?
Although there are a few exceptions, generally speaking in California a case for personal injury must be brought within one year of the date of the accident/incident. In rare cases, that time period is extended to one year from the date of the discovery of a wrongdoing and/or an injury. However, be careful. If the case is against a public entity, the claim must be brought within six months of the date of the accident. Except in medical malpractice cases and cases against public entities, minors have until their 19th birthday to bring a case.
i. Many different factors are taken into consideration when evaluating settlements.
There are many, many factors which are utilized when evaluating a case for settlement. The perception that many of the public have that a case settles for three times the medical bills and wage loss cannot be further from accurate. There are cases that settle for millions of dollars in which there are no medical bills or wage loss and there are cases that settle for a few thousand dollars in which there are hundreds of thousands of dollars of medical bills and wage loss. Following are some of the factors that are relevant to evaluating the case for settlement purposes:
The clarity of liability (i.e., fault) in the case is a critical settlement factor.
In a case in which liability is unclear or the plaintiff has a substantial chance of losing, the settlement value of the case has to be reduced significantly to factor in the plaintiff’s chances of losing.
Theoretically, if the value of an injury claim is $100,000, but plaintiff only has a 50/50 chance of winning, a $50,000 settlement may be appropriate. However, plaintiffs must always realize that cases against large defendants or in cases in which the defendant is insured, that the plaintiff has a lot more to lose than the defendant. In the example above, if the insurance company turns down a $50,000 demand and the plaintiff wins $100,000, payment of an additional $50,000 will mean very, very little to a large insurance company or corporation. On the other hand, if the plaintiff turns down the insurance company’s $50,000 offer and wins nothing at trial, it could create a devastating financial blow in which the plaintiff is unable to pay for his or her bills.
iii. Comparative fault of the plaintiff.
If a plaintiff is found to be partially at fault for causing his or her own injury, then the potential jury award is reduced on the basis of plaintiff’s percentage of fault. In other words, if a case were to go to trial, and plaintiff were to receive a $100,000 verdict, but was found to be 25% at fault, the plaintiff’s verdict would be reduced to $75,000. Thus, when settling a case, plaintiff should reduce his or her expectations of a settlement by the likely finding of percentage of fault that would occur if a case were to be tried.
iv. Likely jury verdict value of the case.
In cases in which insurance policy limits are not an issue, most good attorneys attempt to settle the case based upon what a jury would be likely to award if the case went to trial.
Determining what a jury will award in a given case is more of an art than science; however, reasonable estimates can be made based upon what jurors have awarded in similar cases in similar venues (i.e., locations). Most verdicts are reported in “jury sheets” that lawyers read and utilize when attempting to assess the value of any particular case.
v. Aggravated liability.
In cases in which a jury is likely to get angry at a defendant for misconduct that was something more than negligent, it is known that jurors are likely to “spike” their verdict and award more money for a plaintiff’s injury than they would if a defendant’s misconduct was merely negligent.
Aggravated liability situations, such as a defendant who was found to be driving drunk or a defendant who intentionally hurts a plaintiff will increase the risk to the defendant of a large jury award and this should be taken into consideration in settlement.
vi. Punitive damage exposure.
If the defendant’s misconduct is so bad that there is a risk for punitive damages, i.e., the jury awarding damages specifically to punish the defendant, this should become a major factor in settlement negotiations. A potential award of punitive damages is complicated by the fact that under the law, the insurance company is not allowed to pay an award for punitive damages; however, normally, the defendant, through a personal attorney, attempts to apply pressure on the insurance carrier to pay more in settlement so that the defendant will not be exposed to the punitive damage risk.
vii. The character and credibility of the parties.
A plaintiff’s case is worth more if he or she is likeable and believable. It is known that jurors will award more money to people that they like and believe than people whom they dislike and don’t believe.
To a lesser extent, this is also true for defendants. A likeable or believable defendant is likely to fare better in a lawsuit than someone with the opposite traits.
viii. The extent of the injury.
Theoretically, the more serious an injury, the greater should be the value of the plaintiff’s case.
ix. Objective evidence of injury.
Injuries that can be visualized or that are able to be demonstrated by radiographic evidence such as x-rays, MRIs, CAT scans or other scientific tests, will normally result in higher settlements than injuries which depend upon the believability of the plaintiff to prove.
There are many injuries which may have severe consequences for the plaintiff which are not diagnosable by objective tests. This can include severe back problems, headaches and pain anywhere in the body. Experience has shown that jurors are hesitant to award large damages in cases in which there is no objective evidence of injury; thus, the settlement value of any case is increased by objective evidence of injury and decreased by the lack of it.
However, a credible plaintiff can sometimes overcome the lack of objective evidence of an injury and this must also be taken into consideration in the right case.
x. Past and future medical bills of the plaintiff.
As long as a plaintiff can establish that past medical expenses and likely future medical expenses are reasonable and related to their injuries, the bills will be an important consideration in settlement.
However, the defense will generally claim some amount of overtreatment and, thus, some portion of the medical bills should be excluded from settlement consideration. Further, the defense will argue that plaintiff will be unlikely to need or have the claimed future treatment and/or the future treatment would not be related to the subject incident.
xi. Past wage loss and future wage loss.
Wage loss is another important consideration in evaluating a claim as long as plaintiff can establish that he or she was were reasonably off work or will be reasonably off work due to the subject incident. The defense will likely take the position that the amount of the wage loss should be discounted because plaintiff should have been back to work sooner and, in the case of future wage loss, the defense will claim that plaintiff could be doing some type of work which would pay them as much or almost as much as the work they were doing before the incident.
Also, for plaintiffs who are self-employed or do not have a strong consistent earning history before the accident/incident, it can become very difficult to establish a wage loss claim.
xii. Is the injury permanent.
In cases in which plaintiff has a permanent injury and some objective evidence of that injury, there will likely be a higher settlement value because the case will have more jury appeal.
xiii. Venue (where the claim will be tried).
It is beyond question that cases tried in certain locations, particularly urban locations, result in much higher verdicts than cases tried in more rural counties. This is a factor that must be taken into consideration in settlement.
xiv. Policy limits and defendant’s assets.
No matter how severe the injury, the plaintiff’s ability to recover damages against defendant will be limited by either the defendant’s policy limits or the personal assets of the defendant.
However, in cases involving motor vehicles, the plaintiff may have his or her own uninsured or underinsured motorist insurance which would provide additional coverage for the plaintiff’s injury and allow the plaintiff to receive further compensation in a settlement with their own insurance carrier.
xv. Target defendants.
Even though jurors are not supposed to consider the wealth of a defendant or whether or not the defendant is a corporation in their verdict, they are far more likely to make larger awards against large companies than they are people who they perceive to be middle class or poor. So this becomes another important settlement consideration.
xvi. Reputation and ability of attorneys.
The claims representative or defense attorney will report to the insurance carrier or defendant the ability of the plaintiff’s attorney and the likelihood that the attorney will try a case and try it well.
In situations in which the defense believes that the plaintiff’s attorney will not be willing to take the case to trial, there is little incentive to offer a significant amount of money in settlement.
On the other hand, if the defense believes that a plaintiff’s attorney will not only go to trial, but will receive an optimum verdict, the defense’s risk is increased and thus the settlement value of the case is increased.
By the same token, plaintiffs must also take into consideration the reputation and ability of the defense attorney. If the case is against a good defense attorney, plaintiff will likely receive less money from the jury; thus, the settlement value of the case, to some extent, is decreased.
xvii. Expense of litigation.
The expense of litigation should also be considered in settlement. There are some cases which, if worked up properly, could result in the expenses actually being higher or almost the entire amount of an eventual settlement or verdict.
Some insurance companies and corporations are cost conscious and will take into consideration the expense of proceeding in the case versus early settlement.
However, just because a case may cost the defense $200,000 to litigate does not mean that in a case they otherwise evaluate as being worth $25,000, they are going to offer the plaintiff $200,000 in settlement.
Rather, in the above example, it may cause the corporation or insurance company to raise their offer five or ten thousand dollars or to try to settle the case early for $25,000 before expenses are actually incurred. Corporations and insurance companies are loathe to make offers of settlements based on the cost of defense because of a concern that they will be seen as an easy target for plaintiffs.
This article was authored by John D. Winer. Winer, Burritt & Scott, LLP
specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.