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ANALYSIS State-by-State Variation in Crossing By Ned Einstein


Procedures: Liability Part 2 in a seven-part series As the first follow-up to last month’s introduction to this


series of installments, the reader may be surprised to find li- ability even included, much less the lead topic. Tis is because differences in liability among states have profound impacts on an enormous range of vehicle requirements and specifications, policies and procedures, retrofit requirements, and even the conformity with what many believe to be universal crossing practices — such as students crossing in front of the bus. Sadly, our nation is splattered with examples where safety


has been deliberately compromised by efforts to reduce liabil- ity exposure. Most significant of these differences is the fact that, in Alabama, Delaware, Maryland, North Carolina, and Virginia, the victim of an incident cannot collect any damages if it is determined that he or she has contributed a mere one percent to the cause. Exceptions are typically made for indi- viduals below age seven, whom legislators have found difficult to hold accountable for any form of contributory negligence.


COMPARATIVE NEGLIGENCE Formulas for assigning negligence among various parties,


including the victim, differ vividly among states. Where they exist, the three most common forms are often referred to as “split-the-pie states,” “51-percent states” and “1-percent states” (the five states identified above). In pure split-the-pie states, a jury may simply assign any percentage of negligence to any party. Most states


have evolved into 51-percent states because this practice often leads to some parties being assigned a small “slice” of the damage award despite the fact they contributed no negligence. If a victim in one of these states committed 51 or more percent of the negligence, the remaining co-defendants can simply “walk away,” relieved of any and all responsibility for the incident, even if the facts show they may have contributed significantly to it. By far, the worst liability abuses in crossing incidents occur in 1-percent states. With the exception of chil-


dren under 7 years old who cannot commit contributory negligence as a matter of law, it is hard to conceive of a crossing victim not contributing some tiny degree of negligence to the incident, if only because that student failed to look both ways before crossing the street. Or, perhaps, the child ran across. Te fact is that children below age 13, and particularly below age 10, do possess the ability to cross streets as


a function of their age and development, according to the 1968 Swedish study “Children in Traffic” by educator Stina Swindell. But such realities are completely disregarded in 51-percent states, and school districts and con- tractors can ignore crossing safety responsibilities with impunity, since even the majority of motorists who run them over walk away from any liability. Liability on the part of school districts is almost impossible to establish, although I helped do so in two lawsuits in Maryland. With virtually no responsibility for liability in these five states, one can easily see how abuses can be exaggerated to


tip the scales even further away from a school district or its contractor. Te city of Baltimore is a stunning example. After having removed its crossing control guards from its fleet, the Baltimore Public School District implemented a set of procedures for boarding and alighting that insulate them from liability almost entirely (with one of my excep- tions, noted above). Children are required to cross to their bus stop before the bus reaches the location (whereby its flashers would otherwise assist them in crossing) — a common error made by a vast number of schools across


76 School Transportation News Magazine July 2011


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