[Update II, April 30, 2012: As some media outlets have reported, our law firm now represents the Tezsla family. The below post was written and published before we were retained and should not be considered the family’s or our law firm’s official statement on the case.]

[Update, February 24, 2012: The NTSB confirmed several facts this morning, including the school bus driver’s statements that his line of sight was obstructed and so he inched forward at the intersection and that he never saw the dump truck. The investigators also said the dump truck was overloaded past its weight limit, which, as discussed below, would factor into its ability to stop. Obviously, overloading a truck is itself negligent, and it subjects the trucking company to further liability.]

Readers of this blog anywhere near New Jersey undoubtedly know the story; for readers elsewhere, here’s NBC Philadelphia’s coverage. Thursday morning, a dump truck hit a elementary school bus at the intersection of Bordentown-Chesterfield Road and Old York in Chesterfield, NJ, killing 11-year-old Isabelle Tezsla, seriously injuring two other students including one of her triplet sisters, and leaving 17 more students with minor injuries.

I have written about some of the unique issues that arise in school bus accidents before — an issue that’s often on my mind now since my four-year-old twins rode a yellow school bus for the first time last week (and seemed to enjoy the bus ride more than the field trip destination) — but I didn’t intend on writing about this accident until I saw that the National Transportation Safety Board has already begun investigating the accident, with a focus on the seat belts in the school bus. I’m glad to hear there will be more investigation into the use of seat belts in schools buses — as discussed below, it’s a complicated issue that goes beyond a simple trade-off of cost versus safety — but I don’t want the two biggest factors that may have caused the crash, dangerous road design and driver error, to go unnoticed.

In general, there are five major contributing factors in fatal automobile accidents: dangerous road conditions, dangerous road design, driver error, vehicle malfunction, and vehicle crashworthiness.

From what I’ve read so far, the road conditions didn’t seem to be a factor. There was light rain, but nothing that substantially impaired visibility or traction. As far as I know, there’s no indication of a spill on the roads or a pothole or the like. Similarly, I haven’t seen any discussion of a vehicle malfunction, such as the brakes on the dump truck failing, the tires on either being too worn down, or the like.

My suspicion is that the road design was likely a cause of this accident. The intersection of Bordentown-Chesterfield Road (County Route 528) and Old York Road (County Road 660), which can be seen on Google Maps, is undeniably unsafe. There’s no signal or stop light, and only one road, Old York, has to stop. It’s not necessarily a problem when only one road stops; at least where drivers aren’t distracted, we assume that drivers on Old York will obey the stop sign then look both ways before crossing, and that drivers on Bordentown-Chesterfield Road will slow down if they see someone cross in front of them.

The problem is visibility.

The New Jersey Road Design Manual instructs:

Intersection designs should provide sufficient sight distances to avoid potential conflicts between vehicles turning onto or crossing a highway from a stopped position and vehicles on the through highway operating at the design speed. As a minimum stopping sight distance must be provided.

In other words, when you design an intersection, make sure that “vehicles turning onto or crossing a highway from a stopped position” can see far enough on the cross street that they can tell if cars are coming, and “vehicles on the through highway operating at the design speed” can see cars crossing from far enough way to come to a stop if someone is crossing.

There are two problems with the intersection here. First, the roads don’t intersect at right angles, but rather what looks like 120°/60°. If there’s nothing obstructing visibility at all, that’s more an annoyance than a hazard, but in this case the angles of the road mean that, even if a driver inches right up to the intersection and then looks perpendicular to their vehicle — as you can do at a 90°/90° intersection and see all the way down the road — they still may not see cars who are less than “stopping sight distance” away.

Second, as you can see on Google Maps, visibility at the intersection itself is obstructed by numerous trees. My guess is that The school bus driver traveling northeast on Old York could barely see the dump truck heading southwest on Bordentown-Chesterfield, and vice versa. Bordentown-Chesterfield is a 45 mph road, so it’s unlikely any cars approaching like that can see each other “stopping sight distance” away.

Presumably the intersection (and maybe the trees on its shoulder) are owned by the State of New Jersey or the Chesterfield township, and so their liability is defined by the New Jersey Tort Claims Act:

The New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, specifies the circumstances under which a public entity can be held liable for injuries to another. Generally, immunity for public entities is the rule and liability is the exception The exception relevant to this case is found in N.J.S.A. 59:4-2, which provides that public entities may be liable for injuries caused by a “dangerous condition” on the property of a public entity.

A successful plaintiff under this subsection of the TCA must prove by a preponderance of the evidence that at the time of the injury the public entity’s property was in a dangerous condition, that the condition created a foreseeable risk of the kind of injury that occurred, and the action the entity took to protect against the dangerous condition or the failure to take such action was palpably unreasonable. The term “palpably unreasonable” connotes behavior that is patently unacceptable under any given circumstance.

Within the TCA, a “dangerous condition” is defined as “a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” N.J.S.A. 59:4-1a. A dangerous condition under that provision refers to the “physical condition of the property itself and not to activities on the property.”

Wymbs v. Township of Wayne, 750 A. 2d 751, 756 (N.J. 2000)(edited for clarity). (Regular readers will recall similar sovereign immunity / tort claims issues in my post about the Ashley Zauflik school bus accident in Pennsbury.) In sum, the state government can be held liable for defective road design or maintenance if they were “palpably unreasonable” in creating or allowing a “dangerous condition” to exist.

The Wymbs case is particularly relevant to this accident, because, as the Associated Press reported, “Police have recorded 15 accidents at the same four-way intersection since 2007 — including a minor one on Friday.” In Wymbs, the New Jersey Supreme Court held that plaintiffs alleging defective road designs can use prior accidents as evidence at trial that the road had a “dangerous condition” as long as they meet two criteria:

We hold that prior accidents can be used to prove the existence of a dangerous condition on public property if the following threshold standard is satisfied: (1) the same or substantial similarity of circumstances between the prior accident and the one involved in the case on trial, and (2) the absence of other causes of the accident.

Were the prior fifteen — and likely more if you go back further — accidents “substantially similar,” and did they not have “other causes?” I bet that’s true for at least a few of them, though those “other causes” raises another major issue: driver error.

The driver of the school bus had both a stop sign and a blinking red light, while the driver of the dump truck had the right-of-way and a yellow warning light, so the driver of the school bus is presumptively at fault. And maybe he or she is; the initial burden of safely crossing an intersection falls on the person who entered into another driver’s right of way. Even if — especially if — the intersection has limited visibility, the driver shouldn’t cross until they can confirm it’s safe to do so. I assume the NTSB will borrow an identical school bus, drive it out to the intersection, and assess just how much of the oncoming traffic the school bus driver could see.

But a potentially bigger issue is the speed of the dump truck and if the driver was distracted. The dump truck driver obviously had some time to react, given that he or she hit the rear of the bus, after it had already traveled partly into the lane. If the dump truck driver was speeding, though, a common occurrence on rural roads with long stretches without any stops, particularly by on-duty commercial vehicles, then he or she wouldn’t have had an adequate braking distance. Similarly, if the dump truck driver was distracted (e.g., by using his or her cell phone), then he or she wouldn’t have seen the bus in time to react.

Which brings us finally to vehicle crashworthiness (more about “crashworthiness” in general here), and an issue that has been debated for more than a generation now: seat belts on school buses. New Jersey is one of the few states that mandates seatbelts on school buses, and students on the bus said they were wearing their seatbelts. It’s unclear if the seatbelts were two-point (just lap) or three-point (lap/shoulder), though I assume two-point, because that’s all New Jersey requires. The NTSB has already said that they are looking carefully at the role of seatbelts in the accident. I doubt they’re investigating seat belt failure; instead, they’re looking at the broader question of how effective seat belts are in school bus accidents.

The National Coalition for School Bus Safety has lobbied for years to have the National Highway Traffic Safety Administration mandate the use of three-point seatbelts in school buses. The NHTSA most recently re-considered the issue last August, again rejecting the petition, because:

[W]e have not found a safety problem supporting a Federal requirement for lap/shoulder belts on large school buses, which are already very safe. The decision to install seat belts on school buses should be left to State and local jurisdictions, which can weigh the need for, benefits and consequences of installing belts on large school buses and best decide whether their particular pupil transportation programs merit installation of the devices.

The NHTSA’s belief since the 1980s, backed by an NTSB study, has been that “compartmentalization” — the theory that making school bus seats narrow, tall, and padded, thereby creating a safe “compartment” for children to be jostled around in during an accident — is sufficient, and that mandating the use of seat belts would not have changed the outcome of most fatal accidents. The primary reason for the NHTSA’s decision not to mandate seat belts, though, is subtle and counterintuitive:

If a national requirement were imposed, how could such a requirement affect the availability of school bus service? How might reduced availability of school bus service impact pupil transportation safety? The analysis is illustrative in nature and is based on established economic methodologies. Under the described conditions, the agency estimates that the increased risk from students finding alternative, less safe means of getting to and from school could result in an increase of 10 to 19 school transportation fatalities annually.

Is that correct? I don’t know. It’s an empirical question, and that’s why the NTSB is taking such a close look at this accident. Just looking at the pictures, we can make some assumptions about the accident: the bus was hit in the rear on the driver’s side, and so the force of the accident would have initially sent the bus rapidly towards the right, causing all of student passengers an impact to their left, after which the bus hit a telephone pole, causing an impact force to their right. If the belts were two-point, would a three-point belt prevented the fatality by restraining sideways movement? Did the two-point belts help protect those 17 children with minor injuries ?  Maybe so to both, or maybe not; that’s why the NTSB is taking such a close look. From the pictures, it looks like the passenger compartment in the back was compromised on both sides (where the dump truck hit and where the bus struck the pole), and so the seat belts may have not helped at all, and may have even made the situation worse by restraining the children as the compartment was compromised.

We’ll have to await the NTSB’s final report. Given the length of time those reports take (no offense to the NTSB: they have very limited resources), I think we’ll first learn more from criminal investigations of the drivers and civil lawsuits against the township, the drivers, and their employers. Students injured in the accident will have to file their claims against the State of New Jersey or the Chesterfield Township within 90 days of the accident (because of N.J. Stat. Ann. § 59:8-3), and that will generally start the litigation process going forward.

Truth is, all car accidents are in some way preventable, and so they are all tragedies in the classic sense. That the victims were children makes it worse. That the accident was likely caused in part by a known, correctable flaw in the intersection itself makes it inexcusable.

  • John Cord

    This is an extremely thoughtful post, Max. It really puts notice requirements in context–these are families who are mourning the death of a child or friend, and families dealing with injuries to their children. The City and State certainly know more about the accident than the families can hope to know, and yet the law still requires the families to file notice within 90 days of the accident in order to preserve their right to file a lawsuit. Many families will miss the notice requirement, and will be re-victimized.