It has become increasingly clear that the plaintiff bar is getting more skilled in the methods that work to maximize cases and verdicts against passenger transportation companies. Fortunately, there are a number of steps you can take to reduce the likelihood that they will succeed against your company.
Do you describe that to your customers in your advertising materials? Or to the travel professionals you do business with? To the corporate clients, wedding planners and affiliates who call your company asking what makes you different from your competitors?
“Commitment to Safety” is a powerful statement. The word “commitment” is perceived as just about the highest level of assurance one can give as to the effort they have put into their actions. And “safety” evokes a sense of protection to some — a virtual assurance of incident-free transportation.
When the bad thing happens, however, such as a passenger fall resulting in a serious head injury or a vehicular accident resulting in one or perhaps multiple serious injuries, your “commitment to safety” will be on trial. You can rest assured that your driver, your safety director, dispatch staff and in all likelihood, you, will be a target of the plaintiff lawyers. Their goal is to prove that your “commitment to safety” was false advertising — a deception intended to trick the unknowing public into selecting your company. It has become increasingly clear that the plaintiff bar is getting more skilled in the methods that work to maximize cases and verdicts against passenger transportation companies.
Fortunately, there are a number of steps you can take to reduce the likelihood that they will succeed against your company.
Here are a few of them:
NO. 1: Do not talk about your “commitment to safety” if you do not really have one.
Not one reader of this article will describe his or her commitment to safety as anything but complete and exhaustive. But take a reality check here to make sure you are not telling yourself stories. Those stories can cost you dearly down the road.
Do you always stick to your chauffeur/driver hiring criteria, with no exceptions? Do you adequately orient new drivers to your vehicles and procedures? Do you follow to a “T” your safety program? Do you monitor chauffeur performance in accordance with your own standards? Do you effectively manage fatigue and driver wellness, ensuring that only well rested, physically capable drivers are behind the wheel of your vehicles? And, perhaps most importantly, are you in complete compliance with the local, state and, in some cases, Federal Motor Carrier Safety Administration regulations?
Every one of these areas and many more could be on trial if you and your company are sued.
NO. 2: Is your record keeping impeccable?
When the lawsuits are filed and the subpoenas arrive at your office, you should expect to be required to hand over virtually everything you have relating to your driver, vehicles, maintenance program and safety program. We see too many cases in which everything seemed to be going right: the driver did nothing wrong, the vehicle was well maintained, a solid safety program was in place. But due to a record keeping glitch, the door was opened for the plaintiff attorney to create an argument that hurt the case.
The classic example of this is the case in which vehicle maintenance records were improperly maintained or discarded too soon. The plaintiff attorney crafts an argument that this meant the company was “covering up” something or intentionally destroyed documents it knew it had to retain. How damaging is this to a case in which everything else went right? Much depends on where the case is being tried, the mindset of the presiding judge, and the law. But every time it surfaces, it becomes another factor that could be the difference between a walk-away defense verdict and a case in which a jury has just enough to hang its hat on to find a reason to award damages against your company.
NO. 3: How closely do you monitor and react to the “little things” that could make a big difference?
When your driver calls in from the road and says he’s getting a dashboard warning that a tire is running low, what do you tell him? Keep going? Stop at the next repair facility? Don’t worry about it as long as it appears to have enough air to stay “reasonably inflated?” What’s the right answer? Before you answer that question, ask yourself this one: “After there is a loss-of-control accident resulting from the tire failure and two people are dead and two others seriously injured, and I’m sitting in court explaining my instruction to the driver to a jury, are the jurors going to believe I had the commitment to safety I described when I booked the trip?”
Or, what would you do if a part requiring installation as a result of a manufacturer’s safety related retrofit arrives the same day the limousine is scheduled to start a lengthy trip? It takes two hours to install the part but that conflicts with the scheduled departure time. How will you explain your decision to send the vehicle out without first doing the retrofit? Or, even worse, how will you explain why you scheduled that limo to be used for the trip when you had no idea if the replacement part would even arrive before the trip started? Where do you think a jury will place all of this on the “commitment to safety” scale if a serious injury resulted from the failure to have the part in place?
The lesson here is actually pretty basic: When it comes to anything related to safety, do what you say you are going to do, all of the time and without compromise as to your standards — especially if it is a written policy or required by regulations. Is this an impossible standard? Maybe. But the reality is that the unpredictability of where your accidents will be, how severe they will be, and what ultimately could matter to a jury requires you to seek perfection. Running the perfect business is impossible no matter what industry you’re in. But it is imperative to understand the trade-offs when it comes to operating safely, all the time and in all aspects of your business. There are plaintiff attorneys out there who won’t stop with your liability policy limit and really don’t care if your character is challenged or your personal assets are at stake. They tell you it’s all about justice. Some believe it’s all, or at least mainly, about money. Ultimately, it doesn’t matter. If you are truly “committed to safety” be sure it is considered in all aspects of your business and in every decision you make.