Motor coaches are widely used for a variety of trips, including school sporting events, family vacations and outings for seniors. But a number of serious crashes have prompted the National Transportation Safety Board (NTSB) to recommend the Federal Motor Carrier Administration (FMCSA) work with bus operators and the trucking industry to implement improved commercial vehicle safety measures that would include:
- Flame-resistant interiors;
- Data recorders;
- A second door for emergency evacuations;
- Pre-trip safety briefings for passengers;
- Windows that can stay open during evacuation.
The FMCSA, the federal agency responsible for overseeing commercial vehicle safety, has yet to approve these measures. They can pull carriers out-of-service for non-compliance with current standards. But as the outcome of a recent federal injury lawsuit revealed, suing the agency itself for a bus accident may not be an option.
In the case of Pornomo v. U.S., the adult son of a motor coach passenger killed in a highway accident in Virginia sought damages from the FMCSA for allowing the carrier to operate beyond the usual 45-day window for carriers whose safety record has been deemed “unsatisfactory.”
According to court records, plaintiff’s mother was a passenger aboard an interstate bus traveling from North Carolina to New York. The 37-year-old driver fell asleep at the wheel shortly before 5 a.m., causing the bus to careen off the side of the highway and overturn.
Plaintiff’s mother, 63, was killed when she became trapped between a seat and window. She was one of four killed on a bus with 58 passengers, and the driver was later charged with reckless driving and involuntary manslaughter. The three other women killed were 46, 78 and 25. Twenty passengers were hospitalized.
Approximately seven weeks prior to this tragedy, the carrier that owned the bus had been given an “unsatisfactory” rating from the FMCSA. It had 50 previous citations for fatigued drivers, 17 citations for unsafe driving and four crashes.
Under the policy in place at the time of the crash (in 2011), a carrier would be given 45 days to correct such problems. If issues were not adequately addressed in that time frame, the carrier would be taken out-of-service. But there was also the option (that no longer exists) for carriers to request a 10-day extension. That’s what this carrier did and it was granted. The crash occurred during that 10-day extension window.
Plaintiff sued the FMCSA, alleging the agency negligently allowed the carrier to continue operating, even though it was known they were unsafe.
But the lower court ruled – and the U.S. Court of Appeals for the Fourth Circuit recently affirmed – that the federal agency could not be held liable in this case because the decision to allow the carrier to remain operational was a discretionary one, rather than a ministerial function. The government waives sovereign immunity for negligence in ministerial functions, but generally not for those in which government employees must use some level of independent discernment.
Due to that exception, the court concluded it had no subject matter jurisdiction and the case was dismissed, with the the appellate court affirming.
However, that does not mean plaintiff must walk away empty-handed. Litigation against the bus company itself and any affiliate companies or carriers would still be a very viable option. At least one lawsuit was filed against the carrier and the online company that sold tickets to passengers. The outcome of that case is not immediately known.
There could also be an option to pursue a case against the bus manufacturer if evidence exists that the vehicle or any of its parts were defective or improperly repaired.
Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.
Pornomo v. U.S., Feb. 25, 2016, U.S. Court of Appeals for the Fourth Circuit
More Blog Entries:
When Negligent Repair of Auto Plays a Role in Crash, Feb. 6, 2016, Florida Bus Accident Lawyer Blog