From a safety standpoint, school buses are like commercial airlines. Mile-for-mile, they’re one of the safest modes of transportation; as the National Highway Transportation Safety Administration noted a decade ago while reviewing whether or not to require seat belts in school buses (more about crashworthiness here), the fatality rate for school buses is 0.2 fatalities for every 100 million vehicle miles traveled as compared to 1.5 fatalities for cars.

Like with commercial airliners, though, if a school bus accident does occur, then it’s likely to cause a lot of damage, and the accident is likely the result of colossal negligence. Current NHTSA data shows there are on average 142 school transportation-related fatal crashes every year — nearly three deaths a week — most of them occupants of other vehicles that were hit by buses or vans, a fifth of them being bicyclists or pedestrians, and just under a tenth of them being occupants of the school transportation vehicle. In many ways that’s not surprising: it’s well known that passengers in heavier vehicles are more likely to survive multi-vehicle crashes, and school buses are heavier than most of the vehicles with which they’re likely to collide.

One of the more shocking statistics revolves around school transportation vehicles hitting school students:

On average, 14 school-age pedestrians are killed by school transportation vehicles (school buses and non-school bus vehicles used as school buses) each year, and 3 are killed by other vehicles involved in school bus-related crashes.

More school-age pedestrians have been killed between the hours of 3 p.m. and 4 p.m. than any other time of day.

It’s not hard to see why most accidents happen then: everyone’s tired and has let their guard down. School bus drivers typically report to work before 7 a.m., work until at least 10 a.m., then either work at the school (as a janitor, mechanic, or teaching assistant), do shuttle routes, or take a short break until they return again around 2 p.m. to take the kids home. By 3 p.m., they’re tired, ready to finish the day, and not nearly as alert.

Which is how Ashley Zauflik had her pelvis fractured and lost a leg. As the National Transportation Safety Board summarized the accident:

On Friday January 12, 2007 at approximately 2:30 p.m. EST a 1995 Thomas, 78 passenger school bus was one of several school buses parked side by side in the parking lot of the Pennsbury High School East Campus. After loading 10 students, the 54-year old driver placed the school bus in gear and released the parking brake, when he reported that the school bus suddenly accelerated and he was unable to stop the school bus. The bus traveled approximately 23 feet when the right front wheel of the bus climbed a 4-inch high curb onto the sidewalk in front of the school. The bus continued to travel approximately 25 feet on the sidewalk, striking 18 students on the sidewalk (pedestrians).

The driver wasn’t as familiar with that type of Thomas school bus, and so committed a classic driver error by stepping on the accelerator rather than the brake. He panicked when the bus jumped forward, causing him to mistakenly press even harder on the accelerator.

The case should be clear-cut in terms of automobile liability law. It is plain, clear, unequivocal negligence for a school bus driver parked at a school to hit the gas instead of the brake when preparing to begin his run. We call it “pedal misapplication.” When the NTSB looked at the Pennsbury / Falls Township crash and a couple other instances of pedal misapplication in heavy vehicle accidents, the NTSB recommended:

To the National Highway Traffic Safety Administration:

1. Require the installation of brake transmission shift interlock systems or equivalent in newly manufactured heavy vehicles with automatic transmissions and other transmissions susceptible to unintended acceleration associated with pedal misapplication when starting from a parked position.

2. Analyze pedal configurations in heavy vehicles, including innovative designs, to determine the effect of pedal design on the driving task, examining—among other things—pedal error, reaction time, driver acceptance, and driver adaptation.

3. Once the analysis of pedal configurations requested in Safety Recommendation is complete, publish pedal design guidelines for designers and manufacturers.

To the National Association of State Directors of Pupil Transportation Services and to the National Association for Pupil Transportation:

4. Advise your members—through your newsletters, websites, and conferences—of the following safety issues: (1) the risk of pedal misapplication and the need to educate school bus drivers about such incidents, and the need to develop and implement plans to ensure that school bus drivers undergo annual refamiliarization training on all bus types that they might drive; and (2) the risk of unintended acceleration during loading and unloading activities, as exemplified by the Falls Township, Pennsylvania, accident on January 12, 2007; and suggest possible mitigation strategies, such as installing bollards or starting buses only after loading is complete.

As they say, you don’t need a weatherman to know which way the wind blows. When fatigued drivers hop onto school buses on which they have only minimal training and experience, they’re going to make some mistakes, including by pushing the wrong pedals. Buses should be designed to minimize that possibility — such as by installing brake transmission shift interlock systems and by ensuring the pedals are far enough apart and that each pedal has a distinctive feeling — and schools should train drivers on the problem. When it happens, school districts, virtually all of which are insured, should be responsible for the damage caused. Simple enough.

Pennsbury High School, however, denied responsibility for the accident, and hid behind a state law limiting the compensation available. More on that in a moment.

Ashley unsurprisingly sued for her near-death experience which, through no fault of her own, cost her a large part of her leg and her mobility and left her with the need for at least a million dollars in future medical care, probably two or three million. She sued the manufacturers of the bus and its pedals (Thomas Built Buses, Freightliner, and Williams Controls), presumably raising the same issues identified above, and reached a confidential settlement. Sadly, none of that is newsworthy: most school bus litigation goes without notice by the media. The case has received a large amount of attention, though, because of the ambitious goals outlined by her lawyer, Tom Kline, an alumnus of our firm and arguably Bob Dylan’s #1 fan.

It doesn’t matter that the blatant negligence of the school district’s bus driver caused her permanent, crippling injuries: under the Political Subdivision Tort Claims Act, 42 Pa C.S.A. § 8553, her recovery of damages against political subdivisions of the Commonwealth of Pennsylvania is limited to $500,000, despite the $14 million dollar verdict a jury awarded her last week. Indeed, because other students were injured as well, arguably all of their compensation is limited to $500,000, but as far as I know she’s the only one who sued. See the Pennsylvania Legislator’s Municipal Deskbook for more. (If anyone just had a lightbulb go off in the head wondering if that limitation applies to Penn State, too, the answer is “no,” as explained here.)

These miserly limitations on compensation for negligence by state and local entities have rightly received a torrent of criticism lately following the Indiana State Fair stage collapse. In Indiana, all of the victims are limited to a combined $5 million damages, and the families of the seven people killed have been pressured to accept settlements of $300,000 each rather than keep fighting in court to challenge the cap. It’s unfair and it doesn’t do enough to encourage local political subdivisions to put safety first.

Tom Kline’s been on the pavement, thinking about the government, and he wants to use Ashley’s case to challenge the constitutionality of that cap in Pennsylvania. As I’ve written before, making the law a reality requires first and foremost a client with the perseverance to assert their rights, and it’s heartening to see Ashley turn down the sure money — after years of bruising litigation, the school district finally admitted liability on the first day of trial, as if they ever had any non-frivolous defense, and admitted substantial damages, thereby guaranteeing her the $500,000 — and keep fighting to attempt to make the law more fair for future victims in her situation.

This same battle was already fought, and lost, back in the 1980s with Smith v. City of Philadelphia, 516 A.2d 306 (Pa. 1986), in which the Pennsylvania Supreme Court narrowly upheld the constitutionality of the cap on tort damages against municipalities and school districts.

There’s reason for hope this time around. Contrary to what law students learn about stare decisis, constitutional law changes all the time. Consider this passage from Justice Papadokas’ dissent in the Smith case:

Once again this Court has embroiled itself in a continuing drama over whether the Commonwealth and its political subdivisions are immune from suit for injuries they cause and, if they are, whether they can limit the amount of damages recoverable against them for such injuries. …

This Court has, at times, ruled that this sentence [in the Pennsylvania Constitution] created a basis for immunity from suits against the Commonwealth and its political subdivisions. Brown v. Commonwealth, 453 Pa. 566, 305 A.2d 868 (1973); Commonwealth v. Orsatti, 448 Pa. 72, 292 A.2d 313 (1972); Conrad v. Commonwealth, Department of Highways, 441 Pa. 530, 272 A.2d 470 (1971); Meagher v. Commonwealth, 439 Pa. 532, 266 A.2d 684 (1970); Bannard v. New York State Natural Gas Corp., 404 Pa. 269, 172 A.2d 306 (1961); Stouffer v. Morrison, 400 Pa. 497, 162 A.2d 378 (1960); Commonwealth v. Berks County, 364 Pa. 447, 72 A.2d 129 (1950). At other times we have ruled that this section creates no immunity from suits in favor of the Commonwealth or its subdivisions. Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978) (abolishing sovereign immunity); Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973) (abolishing local governmental immunity); Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971) (abolishing parental immunity); Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A.2d 193 (1965) (abolishing charitable immunity).

Truth is, few issues have been as unstable as governmental immunity in Pennsylvania, and there’s no compelling reason why the current Pennsylvania Supreme Court should feel bound by the Smith case just because it happened to be the most recent word on the matter. For anyone interested in the specific legal arguments, just read the Smith opinion and its dissents; they’re well-written and readable by non-lawyers.

Much of that was known and discussed, but, over the weekend, the other shoe dropped:

The stunning disclosure that the Pennsbury School District has a $10 million liability policy raises one very troubling question: Why wasn’t the policy disclosed during the civil trial involving a former student whose left leg was amputated after she was injured by a run-away school bus.

Ashley Zauflik was awarded $14 million by a jury to compensate her for a lifetime of medical needs and also for her pain and suffering. Problem is, she’ll never see that money. State law caps liability payouts by local governments, including school districts, to $500,000. That’s not nearly enough to cover Ashley’s long-term needs.

Knowing that, Ashley’s attorney invited the attorney representing the school district’s main insurance provider to negotiate a settlement that is fair to his client. That was before the aforementioned $10 million umbrella policy was revealed. What was not known beforehand is that the school district has two liability policies. The second policy was revealed in a letter to Zauflik attorney Tom Kline from insurance company attorney David Cohen three days after the civil trial ended.

I tend to agree with Napoleon (“never ascribe to malice that which is adequately explained by incompetence”), and so can believe the policy was simply forgotten in all the transitions in the school board and office managers. But it raises a much greater issue than the mere concealment of evidence: political subdivisions like municipalities and school districts are routinely insured for millions of dollars and so have no need for the $500,000 cap on damages.

For all the rubbish we hear about “taxpayers being on the hook” for compensating the victims of government employees, the same old line trotted out by corporations after they hurt people, the truth is that taxpayers have already paid their share by purchasing the insurance. If the Pennsylvania Supreme Court finds the damages cap to be unconstitutional, the harm to most municipalities and school districts will be minimal — they already have adequate insurance to cover the vast majority of claims, they just haven’t been paying them.