CHAPTER 1
Torts, Transit, and the âMajestic Equalityâ of the Law
The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.
âAnatole France, The Red Lily, 1894
Your honor, you are about to enter, with your glossary, a seemingly complex, jargon filled world of transit planning, and you are going to have to learn a new language of funding sources and regional transportation. However, this case, at bottom, is actually simple. As evidenced by the existent factual stipulations, there are many facts that are not in dispute. MTC agrees that AC Transit is in dire need of operating funds. MTC agrees that it does not fund all of AC Transit's operating needs. MTC agrees that AC Transit's ridership is overwhelmingly composed of members of the plaintiff class. . . . MTC agrees that it allocates billions of dollars to rail expansion while bus systems in the Bay Area are experiencing a reduction in service levels. While they may not agree with this characterization, what this comes down to is favoring one component of the region's transportation system over another.
âBill Lann Lee, Opening Statement in Darensburg v. MTC, October 1 2008
In his book Democracy in America, Alexis de Tocqueville observed that there was âhardly a political question in the United States which does not sooner or later become a judicial one.â1 This chapter suggests that a similar insight might be said to apply to urban mass transit. As with most areas of public policy, urban transit has hardly been immune from the influence of the courts or from judicial review. When transit officials stake out new routes, when they threaten to cut service, or even when they deign to add a new bus stop, not only must they confront the scrutiny of the public, but they must also, invariably, confront
the possibility of a summons, or of legal action. To the degree that this chapter focuses on the courtâs impact on transit, it also returns, yet again, to the skeptics of rights talk with whom the book began. To recall, for such skepticsâlike the AC Transit board member quoted earlierârights were a waste of time. Indeed, they were a distraction. Far more important than rights was the practical task of simply getting a âbetter transit system for everyone.â2 The focus ought to be on âimproving what weâve got.â Of course, as we argued, such demands, however understandable, often rest on a rather flimsy premiseânamely, that avoiding rights is actually possible, and that securing a âbetter transit systemâ can be accomplished without dirtying oneâs hands in hoary disputes over moral minimums or entitlements. Nowhere is this appeal to pragmatism or this disregard for rights more clearly dispelled than when transit agencies like AC Transit come face-to-faceâas they are prone to doâwith an enterprising lawyer or an aggrieved transit patron who believes that their rights have been thrown under the figurative bus.
This chapter begins with a question: In the East Bay, where do the legal duties of transit agencies begin, and where do the corresponding rights of the transitriding public end? To this question, the chapter turns its attention to three court cases: Bonanno v. CCCTA, Lopez v. SCRTD, and Darensburg et al. v. Metropolitan Transportation Commission. While the first two are tort casesâthat is, they deal with questions of liability and tortious behaviorâthe last case is a civil rights case and thus hinges on questions of equal protection under the law. As becomes clear in discussion of these casesâespecially the tort casesâlegal disputes over the rights of riders play a fundamental role in shaping what transit looks like. Legal disputes dictate everything from where transit agencies site bus stops to how drivers interact with patrons. In debating the future of transit, rights are hardly distractions; indeed, they are inescapable. The following cases also serve to make yet another pointâand this is most evident in the Darensburg case. To the extent that the courts take a necessarily narrow view of what transit means for people or of its role in cities, they are often simply responding to the narrowness of the alleged rights at issue.
Torts and Transit
Tort cases are ubiquitous. They are the cases that deal in personal injury, product safety, and assigning fault in accidents. As noted by legal scholar William Prosser, torts are best defined as civil wrongs.3 Tort laws, by extension, refer to the rules governing what constitutes a wrong and how to assign responsibility when a wrong is identified. Public transit agencies, like many government agencies, are often subject to tort challenge. In fact, these challenges can be quite daunting. A 1994 report by the Transit Cooperative Research Program (TCRP) noted that tort liability payments, on average, accounted for 5.67 percent of total fare revenue. At one agency, this number was nearly 23 percent.4 As the following examples suggest, the implications of tort rulings extend beyond fiduciary concerns to impinge on what the transit map actually looks like.
In 2010, an AC Transit senior planner responded to a question regarding the challenges of transit planning in the East Bay by making note of a curious case, and the even more curious court ruling that followed. The case was Darlene Bonanno v. Central Contra Costa Transit Authority (CCCTA). In 2003, the California Supreme Court held the CCCTA liable for injuries sustained by Darlene Bonanno while she approached a bus stop. Per the decision, transit companies were now liable for accidents in which the company was directly involved (i.e., a bus hitting a pedestrian), as well as for accidents âcausedâ by the very location of a bus stop.5 According to the planner, the ruling fundamentally shaped the nature of transit planning in California.6 The details of the case are notable and worth rehearsing.
On November 16, 1993, while en route to a bus stop at the intersection of DeNormadie and Pacheco Boulevard in the East Bay city of Martinez, Darlene Bonanno was struck by a car. After initially lapsing into a coma, she later regained consciousness and underwent surgery on her foot. In 1994, Bonanno sued the CCCTA, Contra Costa County, Jeremy McClain, the negligent driver, and Kaiser Hospital, where she had been treated. By 1999 all defendants but the CCCTA had settled, and Bonanno was left to try her case against the CCCTA alone. Bonannoâs theory of liability against the CCCTA was an interesting one. It relied on California State Government Code sections 830 and 835âsections that identify what types of tort actions against public agencies can proceed. Government Code section 835 mandates that public agencies can be held liable for injuries caused by a dangerous condition of public property. Government Code 830 further defines a âdangerous conditionâ as a condition of property âthat creates a substantial risk of injury when such property or adjacent property is used with due care and in a manner in which it is reasonably foreseeable that it will be used.â7 The question before the court was whether the location of the bus stop at DeNormandie and Pacheco constituted a dangerous condition of public property.8
The plaintiffâs burden of proof was substantial. The plaintiff was asked to prove that (1) the bus stop in question posed a persistent risk; (2) that Bonannoâs use of the bus stop was reasonable and in accordance with how a bus stop might be used by others; and (3) that the CCCTA had knowledge of the potential risks posed by the location of the bus stop. The plaintiffâs counsel rested its argument on historical facts as well as testimony. Pacheco Boulevard, the plaintiff noted, had always been a busy street. As early as 1980, local residents had complained about the dangers of crossing it. In 1986, Kimberly Chittock, a local resident, was struck by a car at the intersection of Pacheco and DeNormandie while jogging to catch a bus. Chittock both lodged a complaint and filed a suit against the CCCTA. Although Chittock reached a settlement with the CCCTA, the bus stop at the intersection remained in the same place. During the Chittock trial, traffic engineer Thomas Shultz testified that the CCCTA should move the bus stop from Pacheco and DeNormandie to a safer intersection.9
The CCCTAâS defense focused less on challenging the plaintiffâs assertion of the intersectionâs dangerâwhich was obviousâand more on asserting the agencyâs powerlessness in preventing accidents like those that befell Bonanno. It would be one thing if the bus stop sign or the bus shelter itself collapsed and injured Bonanno, but Bonanno was injured by a car driven by a negligent driver on a property several meters from the bus stop. Since the CCCTA neither owned nor controlled the sidewalk, nor the shoulder adjacent to the bus stop, the CCCTA argued that it was erroneous to suggest that the agency be held liable under Government Code sections 830 or 835. Where these codes held that public agencies could be held liable for injuries occasioned by a dangerous condition of public property, the CCCTA argued that the location of a bus stop failed to meet that criterion. Even if the CCCTA wished to remedy the situation by moving the bus stop, it would still require the consent and authorization of Contra Costa Countyâa wholly separate entity.10
The court found this defense lacking. The court ultimately ruled that the location and maintenance of the bus stop on Pacheco and DeNormandie constituted a dangerous condition of public property. Following the Chittock incident, the intrinsic danger of the intersection was well known, yet CCCTA had done nothing about it. In 2003, and after several appeals, the California Supreme Court found the CCCTA liable for Darlene Bonannoâs injuries. The court ordered the agency to pay Bonanno $1.6 million. The Supreme Courtâs decision was not without its critics, two of whom sat on the court itself. Judge Marvin Baxter and Judge Janice Brownâs dissenting opinions were strongly worded. For Baxter, the view that âlocationâ could amount to a dangerous condition of public property was an âinapposite theory of liability.â Owners of property, he added, âshould not be made to ensure the safety of all persons who encounter nearby traffic-related hazards in reaching their property.â11 To make his point, Judge Baxter offered the following hypothetical:
A public entity owns a building with two spaces for rent, located directly adjacent to a crosswalk on a busy street. One of the buildingâs renters is subject to a two year lease; the other rents on a month-to-month basis. Like the situation here, there are no traffic lights or stop signs at the crosswalk, and the buildingâs location therefore presents a dangerous condition. . . . Under the majorityâs rule, the public entity owner would escape liability because it could not feasibly move the building. The month-to-month renter likely would be subject to liability because terminating the tenancy and relocating appears to be feasible. The two-year lessee might or might not be subject to liability, depending upon a juryâs assessment of feasibility. Thus even though all three defendants appear equally at fault in terms of attracting visitors to the same dangerous location they will not be held similarly accountable.12
Judge Baxter argued that the majorityâs opinion reflected a logical fallacy. Moreover, Baxter also raised a set of more practical worries. By significantly broadening the concept of what constituted a dangerous condition, the courtâs ruling promised to deplete the already scarce resources available to public entities. Baxter noted that under the rule of joint and severable liability, agencies like CCCTA and AC Transit might now be on the hook for 100 percent of the economic damage incurred in tort litigationâas well as whatever the percentage of culpability would be for noneconomic damages.13 In her dissent, Judge Janice Brown reiterated many of the same concerns. Like Judge Baxter, Brown argued that the concept of a dangerous condition ought to be limited to the âpurely physical conditionâ of the property itselfânot its location or geographic context.14 Bonannoâs injuries, Brown asserted, were caused solely by the negligent driver. Judge Brownâs dissent also raised some of the more practical concerns first broached by Baxter. Bonannoâs award of $1,606,130, Brown noted, was not an insignificant sumâand especially for a public agency like CCCTA. The courtâs decision, Brown noted, would also necessarily function to compel transit agencies across California to conduct costly traffic studies. Both the potential litigation and the cost of avoiding litigation promised to come at an enormous cost to taxpayers and bus riders. While the ruling in Bonanno v. CCCTA had expanded the duties of transit agencies to their riders, the consequences of that expansion did not necessarily benefit the average transit rider.15
The central conflict in Bonanno v. CCCTA was over how to define a dangerous condition of public propertyâand whether a dangerous condition referred to the faulty condition of the property itself, or whether it instead could constitute the propertyâs location. Of course, the courtâs decision in favor of Bonanno offers a partial answer to the question with which the chapter beganânamely, of where the rights and duties of riders begin and end. In Bonanno v. CCCTA, the courtâs answer was quite clear: the duties and liabilit...