Bus accidents are relatively rare, but the rate tends to be higher with commercial companies that require drivers to travel long distances, often overnight.
Driver fatigue is a major problem in the industry – which is popular for Orlando tourists – and it’s why the Federal Motor Carrier Safety Administration (FMCSA) sets limits on driver hours. It’s the same agency that is responsible for ensuring drivers are qualified, buses are in good working condition and the company adheres to industry rules.
However, the legal liability of the FMCSA for bus accidents may be extremely limited. That fact was further underscored in the recent case of Pornomo v. U.S., before the U.S. Court of Appeals for the Fourth Circuit.
According to court records, plaintiff is the adult son of a woman killed in a bus accident in Virginia. The bus was traveling from North Carolina to New York when the driver reportedly fell asleep at the wheel while driving on the interstate. Decedent lost her life when the bus rolled over, pinning her between a seat and a window.
Plaintiff filed a wrongful death lawsuit against the FMCSA, alleging the agency was negligent in allowing the bus company to continue operations even after it had received an “unsatisfactory” rating. This rating means the carrier lacks adequate safety management controls and that this insufficiency could result in safety violations that put passengers at risk.
Usually, an unsatisfactory rating means the carrier is allowed to operate for just 45 days, after which time the FMCSA can deem it “fit” after the company has addressed the underlying violations. Otherwise, it must cease operations.
At the time this crash occurred in 2011, a rule was in place that allowed unsatisfactory operators to continue operate after that 45-day window by requesting a 10-day extension. In this case, that request was made and granted, even though the review at 45 days revealed the company still hadn’t corrected the safety issues at hand. The accident happened during the extension period.
Plaintiff alleged the 10-day extension wasn’t allowed by statute, and even if it was, the federal government agency was negligent for granting it.
The problem is that government agencies are entitled to a host of special legal protections when it comes to liability. Although the government generally waives sovereign immunity for most negligent actions, those rooted in discretionary actions are the exceptions.
Discretionary actions, as opposed to ministerial actions, are those in which the government employee has some discretion in what course of action to take. Ministerial actions, meanwhile, are those that involve government functions for which there is no room for individual employee discretion.
In this case, the federal district court ruled the decision to allow a 10-day extension was discretionary. Further, although such an extension is no longer an option for carriers deemed “unsatisfactory,” it was a valid option under the statute in 2011 when the crash occurred.
Plaintiff appealed to the 4th Circuit, and that decision was affirmed.
This does not mean plaintiff is without legal options. He may well still have a strong case against the carrier for direct and vicarious liability. No option should be overlooked.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.
Pornomo v. U.S., Feb. 25, 2016, U.S. Court of Appeals for the Fourth Circuit
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Carlson v. Town of South Kingston – Ball Field Injury Lawsuit Weighed, Feb. 22, 2016, Orlando Bus Accident Attorney Blog