Wheelchair tipovers are by far, the most common accident/incident scenario in paratransit and non-emergency medical transportation (or “ambulette”) services. And wheelchair tipovers are among the most common accident/incident scenarios in fixed route transit service.
The causation of these incidents, the many federal regulatory violations they often encompass, and the range of remedies which facilitate settlements and damage awards far in excess of “direct damages” are largely unknown to even the best attorneys. Yet they are completely understandable when one understands the physical, technical, institutional and commercial dynamics of these industries, and how these modes and services operate. Properly articulated and supported with evidence, explanations of even the most complex aspects of a wheelchair tipover and its causation are also jury-friendly. Typically, the defense defaults to spoliation, lies and shenanigans.
Further, no one with even the longest arms imaginable could reach back and unfasten either end of the rear securement positions of a wheelchair “tie-down.” And from within the chair, no one could unfasten either end of even the front positions. Thus, contributory negligence is physically impossible, and inconceivable.
TA President Ned Einstein, who has served as an expert witness in more than 80 wheelchair tipover cases, typically finds between two to four Federal regulatory violations in many or most incidents involving these tipovers—particularly involving NEMT service. Most of these are violations of the victim’s civil rights.
Wheelchair Securement Regulations and Industry Standards
Like most regulations, the Americans with Disabilities Act (ADA) focuses mostly on performance rather than design elements. However, one rare and unique departure from this caveat is the Act’s specificity about wheelchair securement. The ADA is clear and forceful about several absolute requirements for wheelchair securement:
- The chair must be secured tightly enough such that it does not move more than two inches, in any direction, during “normal operating conditions” (which include slamming on the vehicle’s brakes).
- A three-point occupant restraint (or lap-and-shoulder belt) system must be installed at every wheelchair securement position (on any public transportation vehicle of every type and size).
- The securement area must be a minimum of 48 inches long.
In simple terms, every wheelchair tipover is, by definition, a civil rights violation.
Every wheelchair tipover is a civil rights violation.
Curiously, the usage of both wheelchair and passenger securement devices (i.e., lap-and-shoulder belts or harnesses) are not regulatory requirements for any public transportation mode—with the sole exception of large schoolbuses in the State of New Jersey. However, usage of a three-point securement system is the clear and irrefutable “industry standard.” Plus, installation of a three-point securement system at every wheelchair securement position is a formal requirement of the Americans with Disabilities Act.
Wheelchair Securement: Equipment Requirements
Wheelchair and passenger securement devices must withstand the exertion of 20 g-forces upon them. (A 20 g-force collision is roughly equal to driving a vehicle into a brick wall at 30 mph.) This requirement is based on standard #J2249 of the Society of Automotive Engineers, a standard accepted by the National Highway Transportation Safety Administration (NHTSA).
In the simplest of terms, what this means is that if a wheelchair is secured properly, it is not going anywhere—not moving even two inches if properly tightened—under “normal operating conditions.” To put this reality in perspective, if a car, truck or bus slams on its brakes, but does not collide with anything, it may create slightly more than a single g-force. So one might ask, “Why then do these chairs tip over so often?” A good question with a lot of answers.
Tipovers and Causation
If a wheelchair is properly-secured, it isn’t going anywhere.
In simple terms, “properly secured” includes a number of factors:
- The equipment (floor tracks, plates or discs, and the fittings at the end of all the belts or straps) must fit together, as designed and intended
- Retractors (or ratchets in the old canvas belts that one occasionally still finds on older vehicles) must operate properly
- Fittings on both ends of every belt must be complete and compatible with their housings
- The attachment must be snug, and the belts or straps must contain no slack (which modern retractors do a decent job of if they are properly maintained and adjusted)
- The fittings to the chair must be positioned on the most appropriate part of the chair’s structure, near each wheel position
- Floor tracks (or plates or discs) must be clean, and must be stowed between each usage
- The straps, fittings and floor hardware must be intact, in both material, structure and mechanics
- Once the chair is locked into place, drivers (or their attendants—not the wheelchair user’s personal care attendant) must tug on the chair (ideally in a few directions) to ensure that it doesn’t move
- Every chair must be properly secured in four places—irrespective of the number of the chair’s wheels
Frankly, if a chair is secured properly, one can ignore the two-inch movement rule of the ADA: The chair will not move at all, beyond an almost imperceptible distance. But a lot of things can go wrong in these nine steps. Because the regulations and industry standards for wheelchair securement are so clearly defined, the most typical defense is almost always spoliation. After a wheelchair tipover, the driver usually picks up the chair and often places its occupant back in it. Or, particularly in NEMT service, the vehicle is soon on its way to some buyer or chop shop in another country. So the best evidence can vanish if the plaintiff’s attorney hires an expert too late in the case. To a transportation expert, a wheelchair tipover speaks for itself. But without much evidence, it may not do so to a judge or juror.
At the same time, the ADA requirements and industry standards for proper wheelchair and passenger securement are not as simple as they may seem. Merely skimming the surface, one can begin to understand why even the shrewdest attorney representing a wheelchair tipover victim needs to hire a sophisticated expert witness as early in the case as he or she can. Otherwise, regarding the nine steps noted:
1. The Equipment Must Fit Together. Leafing through the product catalog of any wheelchair securement manufacturer (referred to as a “supplier” in public transportation lingo), one finds many choices. Some cost more than others. Some are newer than others. And while every device available is safe and sound if properly used, some are far more safe and sound than others because every piece is not always properly used.
Regardless, the fitting at the end of each belt must match the hardware configuration into which it must be inserted. As these devices have evolved over the decades, the goals were generally to improve the fit, make it easier for drivers to confirm the fit, and decrease the time needed to secure each wheel position of the chair. The most recent wave of securement devices involves a small disc (not a long track or even a track section) to which its appropriate fitting will attach quickly and easily. Further, the fitting inserted into this disc can usually be done with one hand—a major improvement since reaching all four securement positions can be challenging, especially with multiple chairs loaded into small vehicles.
This effort can sometimes become even trickier: A “common wheelchair” cannot be longer than 48 inches. Yet, under the ADA, the securement space need only be 48 inches long. So if chairs are tightly-spaced together and/or the vehicle interior is small, where is the driver going to crouch or kneel to fasten these devices? Plus, if the distance between tracks is only 48 inches, and the securement points on the chair are close to this distance apart, there is no room for the straps to extend in front of and behind the chair. So it should begin to be clear why considerable expertise is needed to solve the puzzle of how or why a chair shifted or pulled out from its moorings—if it was ever placed in them to begin with. Again, one without much experience in wheelchair tipover-related lawsuits may not know that the first thing a driver often does when a wheelchair tips over (before or after notifying the dispatcher) is to pick the chair up (and occasionally even secure it properly).
The first thing a driver does … is pick up the chair and secure it.
While the more modern disc-configured securement devices facilitate quicker securement, they also cost more. However, it is a valuable feature given the underlying causation of almost all wheelchair tipovers (see discussion below). More importantly, like the small, square, typically four-inch square plates commonly found in vehicles manufactured before 2000 or so, each of these discs is obviously installed at only one point in the vehicle’s floor. In contrast, with a track several feet long, a driver can adjust the position of the securement fittings-and-straps laterally (or longitudinally in many large schoolbuses) to accommodate the different widths of wheelchairs, and the multitude of attachment points found on any of the more than 500 varieties of manual and motorized wheelchairs. For this reason, most vehicles “converted” today continue to employ tracks—although they are not always spaced appropriately, for reasons too complex to explain here. So at the lawsuit level through which most wheelchair tipovers proceed, one can see that someone qualifying him- or herself as an expert in wheelchair securement must understand a lot more about this subject than this website provides.
One of the shortcomings of the ADA in this particular area is, as noted, the fact that the chairs that must be accommodated are sometimes as long as the distance between a pair of securement tracks. Several years ago, the Federal Transit Administration issued proposed rulemaking to solicit ideas for revising portions of the Act. One of the areas commented upon was track spacing. Both operators (i.e., mostly transit agencies) and vehicle converters went to great lengths to argue against increasing this spacing—as any market-savvy American would suspect. Not a transit agency or converter, I myself proposed 66 inches. Many other commenters proposed 60 inches. The FTA accepted none of these proposals, and the 48-inch spacing requirement remained unchanged.
One interesting curiosity about wheelchair tracks is that they are almost universally positioned laterally in paratransit and NEMT vehicles. Yet they are often positioned longitudinally in many schoolbuses—particularly in full-size schoolbuses outfitted to be filled mostly with wheelchair users. Yet the same tracks (almost universally “hex-tracks” today) are employed in both orientations, making the securement of fittings into them no different, irrespective of the orientation of the tracks.
Also, about converters: With the recent exception of the Dodge Sprinter, and more recently the Ford Transit, no van or light-duty truck manufacturer produces a wheelchair-accessible van or light-duty truck at the factory level. And because of these vehicles’ cost, and the marginal scheduling ability of most modern paratransit systems (which rely almost exclusively on scheduling software), so few multiple wheelchairs are scheduled at one time in any or most of their vehicles’ runs that it does not pay to purchase a vehicle this size. Instead, all three of the major U.S. automobile manufacturers offer both vans and light duty truck chassis to vehicle converters, which transform them into wheelchair-accessible vehicles. These vehicle chassis come in five size ranges: 150, 250, 350, 450 and 550 series. Most, if not all, of the major converters are acutely aware of at least the basic ADA requirements—like the requirement for a shoulder harness housing or fitting (often simply a short section of “hex track” mounted on the upper sidewall of a vehicle) and the track-spacing requirements of the ADA. But some of the lesser-known converters are either oblivious to these requirements, do not care about them, and/or sell non-ADA-compliant vehicles with these defects to their unwary customers—at lower costs than their competitors who would never do such things.
Finally, the task of pieces fitting together is affected largely by two factors:
- There are multiple types of fittings
- Belts and straps are constantly interchanged and scavenged from vehicle-to-vehicle, as they wear out, break, are stolen, found missing, or spare parts are not available.
The most obvious example of a mismatch is the fact that a hex fitting obviously cannot fit into the thin rectangular slot of an older-vintage track—and vice versa. But far more common is the mismatch of shoulder belt fittings into or onto lap belt buckles. There are basically two types and pairs of “male” and “female” fittings and buckles:
- Male fittings with an oval-shaped hole fit over a hexagonally-shaped “nub” mounted on the outside of a lap belt buckle where the lap belts are configured to buckle near the wheelchair user’s navel.
- Male fittings with a rectangular-shaped hole are designed to plug into the car- or taxi-type buckles [usually with the push-buttons painted red] which lie at the wheelchair user’s hip.
Accordingly, one cannot affix an oval-ended belt into a hip buckle. Similarly, one cannot insert a rectangular-ended belt onto the hexagonally-shaped nub of a navel-oriented buckle.
With all these permutations and combinations, the often thoughtless scavenging of belts from one vehicle to the next, and the tight schedules that make modern paratransit operations frantic, one can see how these mismatches might occur. Of course, far more often in wheelchair securement scenarios, one or another type of belt is simply missing altogether. Missing shoulder harness housings (an ADA violation incurable by merely providing the shoulder belt) is epidemic in the NEMT industry.
2. Retractors (or ratchets in the old canvas belts that one occasionally still finds on older vehicles) must operate properly. Modern retractors are designed to automatically retract the belts into a heavy metal housing, from which the belt can similarly be extended: Once the extended belt reaches the length needed (e.g., for a typical rubber-coated hook to clamp around a securement point on a wheelchair), the mechanism inside the housing “retracts” the belt. The belt can then be tightened a bit more snugly by twisting a knob on the retractor housing. This execution is relatively straightforward. However, over time, belts become a bit loose (evidence of this is that they do not fully retract into the housing), and the driver must make sure to tighten the belt, snugly, manually. At some point, of course, a retractor mechanism and/or its belt may wear out to the point it is inoperable altogether. But before this point, tight securement of a chair may be compromised.
Retractors can also jam—although this is not common unless the unit has somewhat worn out. In contrast, the older ratchet-type mechanisms, where a thick canvas belt was woven through a ratchet, would sometimes jam even with normal, skilled usage. It would be difficult for even a skilled auto mechanic to un-jam one, and instead, the unit would have to be sent back to the supplier’s factory, or a distributor, for a technician to un-jam it, and the company to return it. One should be able to envision many transportation operating agencies or companies being unwilling to do all that. So jerry-rigged solutions (e.g., wrapping the belt—if even long enough—around a wheelchair’s structural frame member) are sometimes employed. But this faux-securement will not keep a wheelchair immobile—certainly not at that securement point, and certainly not according to ADA standards.
3. Fittings on both ends of each belt or strap must be complete and intact. Both the rubber hooks or fixtures affixed to the chair and the fittings connected to the tracks (or plates or discs) must fit perfectly. At the floor end (i.e., tracks, plates or discs), the fittings should snap or click into place. This click is usually audible, and drivers should be taught to pay attention to it. At the wheelchair end, the fixtures should be attached to an intelligently-selected part of the chair’s structure near each wheel position, and attached to it, or wrapped around it, so that, when the belt is tightened, that fixture cannot come off.
One configuration of belts particularly common to the straps used for a chair’s rear wheel positions contains a small loop attached to a midpoint (not precisely) of the belt. The end of this type of belt typically contains a small, metal hook, not the large, rubberized hooks of most belts in retractors’ housings. Instead of attaching that hook to some point on the chair’s structure, this type of belt should be wrapped around an appropriate securement point on that structure, then pulled back and hooked onto the loop. This same loop is commonly used for one configuration of lap belts whose ends attach to these loops on rear securement straps, rather than directly to the floor.
4. The attachments at both ends of each strap must be adjusted and snug, which modern retractors do a decent job of if they are in properly maintained and adjusted shape. A retractor in perfect shape will retract its belt until it is relatively tight. However, the knob on the retractor housing may need to be turned slightly to tighten the belt even further—although tightening it too much could either damage the wheelchair or compromise the retractor mechanism. Modern retractors in good shape make this task relatively easy. But if the retractor is somewhat worn, or the belt is torn or stretched out, it may be a bit more difficult. Note also that while the ADA permits a chair to move up to two inches “in any direction,” if properly secured, a properly secured wheelchair should barely move at all. If it moves slightly, a worn-out or improperly maintained retractor may be the reason.
One subtlety to this attachment is that both the front and rear positions of the chair must obviously be secured. One obviously cannot secure both ends at the same time. The best and easiest approach is to initially “center” the chair in the securement area—with its brakes unlocked or, for a manual wheelchair, placed in “roll mode” with the power turned off for a motorized chair. Then, after securing the first set of straps, the driver should not tighten them, since doing so will only wrench the chair further backwards or forwards—making it more difficult (or impossible) to secure the other end of the chair. Instead, one end (most typically the front) should be secured with the chair roughly “centered” in the securement area. Then securement straps should be affixed to the points on the opposite side of the chair (typically the rear). At that point, when the rear straps are tightened, this pulling motion will pull the chair slightly rearward, and remove any remaining slack from the front straps—effectively tightening all four straps, and keeping the chair firmly in place.
5. The fittings to the chair must be positioned on the most appropriate part of the chair’s structure, near each wheel position. The driver must not secure any strap to a wheelchair’s wheel. This is particularly true of the large rear wheels of a manual wheelchair. Worse, no strap should ever be woven between the spokes of a wheel. This is because when g-forces are applied (even when the vehicle merely stops short), the wheel (particularly the large wheel of a manual wheelchair) can elongate, damaging the chair and compromising the securement. Or the parts of a manual chair can be broken. Instead, the fitting at the end of the strap or belt attached to the chair must be attached to a “structural frame element” of the chair, near each wheel position.
Since the publication of the results of the SOWHAT study in the early 2000s, some wheelchairs—known as WC-19-compliant wheelchairs (or “transportable wheelchairs”)—have optimum securement points not only specifically designed for this purpose, but often clearly marked. However, the majority of wheelchairs—even today—are not WC-19 chairs. Therefore, the driver must select the most appropriate position for attaching each securement strap, since it is not identified or obvious. In many cases, even on non-WC-19-compliant chairs, these points are obvious—for example, at the intersection of a vertical and horizontal tube of the chair’s structure near each wheel position. On other chairs, these points are not so obvious. For example, some motorized wheelchairs or scooters contain a “housing” covering the wheels and/or the batteries. And sometimes there are no obvious places to which to attach a belt. But a properly-trained driver should be able to use some logic in even a somewhat puzzling situation. For example:
- If a housing completely covers the front of a chair, one strap should be affixed to the underside of each rounded “corner” of the housing. In contrast, one should not affix belts to the steering post of a three-wheeled scooter.
Another recommended positioning is to attach the front straps, horizontally, on a diagonal. In contrast, the rear straps should be attached longitudinally. This orientation was conceived largely for manual wheelchairs, since attaching a strap diagonally to the rear positions would necessarily wind it around the large, rear tires—a configuration that would easily slip during travel, and which would thus compromise the chair’s securement, and likely violate the ADA’s maximum two-inch movement rule.
Finally, all four straps should not be attached to a point on the structure too close to the floor level. Instead, the optimum point of securement would be roughly a third to a half of the vertical distance to the chair’s seat cushion (i.e., on between a 30- and 45-degree angle), so that the belt is pulled downward toward the track fitting or retractor, not merely toward it horizontally.
6. Floor tracks (or plates or discs) must be clean. The most important means of keeping tracks clean—a rule included in the instructions that come with every set of securement devices—is to remove the straps and hardware after each usage. The complete set of wheelchair straps and hardware (including the retractors, lap belts and shoulder belts) should then be stowed in a pouch (each set of wheelchair securement devices, or set of WCH and lap/shoulder belt devices, comes with a pouch), designed to be affixed to the interior sidewall of the vehicle, alongside or near each securement position. If no pouch is available, each device (i.e., one complete position’s set of belts and retractors, etc.) should be stowed in some container (small cardboard box, plastic or wooden crate, plastic “file box”, etc.). Ideally, if a wall-mounted pouch is not employed, the container itself should be attached to something. If not, it may fly around in a collision. Otherwise, the absence of pouches attached to the inside of an accessible vehicle (or other containers) is a telltale sign that the hardware is not regularly removed from the floor tracks (or plates or discs) after each usage. And if this procedure is not followed, it is likely that many other procedures are not followed as well.
The process of regularly removing the securement devices from the tracks (or other floor hardware, like plates of discs) contributes significantly to keeping the tracks clean. However, any wheelchair secured in a track will only be secured in two short sections (about two inches long) of this track. So continuously inserting and removing the fittings from the track will not necessarily keep the entire track clean. Because chairs vary both in width and design, and drivers necessarily exercise some judgment is choosing the points of a track in which to insert each fitting, the optimum placement of straps in the vehicle floor will be different from chair to chair. So simply removing and stowing the hardware between uses is not enough. The tracks should regularly be swept out (with a broom or whisk broom). And periodically, they should be vacuumed. Ideally, they should occasionally be wiped clean—although this latter effort is not the industry standard. But occasionally wiping the tracks (or plates or discs) is a good idea, since wheelchairs occasionally plow through snow, slush or mud on their way to the vehicle. (When these liquids dry, dirt falls out of the wheels as the chair moves along, including inside the vehicle interior, and into the tracks or plates—thus the need to sweep and vacuum them out.)
Keeping the tracks clean helps ensure a crisp, perfect fit whereby each fitting clicks or snaps into place as its is inserted into the track (or other floor hardware). If the tracks are not kept clean, such a fit is often compromised. Sometimes, with dirty tracks, a securement fitting will appear to be inserted into the track, while the dirt or foreign objects prevent a complete fit. Occasionally, this insertion is referred to a “false latch.” This concept is nonsense: The fitting is either attached or it is not attached. Partial attachment is worthless. And dangerous
7. The straps, fittings and floor hardware must be intact, in both material, structure and mechanics. Over time, things wear out. Wheelchair wheels roll over these objects, and drivers and ambulatory passengers step on them. Straps must not be torn, or their edges shredded. When any deterioration is first observed, the strap must be discarded and replaced. Particularly with the thin straps that accompany retractor systems, one must remember that the straps must hold the wheelchair in place in a 20 g-force collision. A torn strap or belt is a “weak link” in the chain of devices between a wheelchair and the vehicle floor. More importantly, the rate at which these items are damaged increases when straps and retractors are not detached from the floor hardware and stowed between usages.
Similarly, the fittings must be in perfect shape. Retractors or ratchets must operate smoothly, and must hold the straps attached to them firmly in place once they are retracted or tightened by the knob on the retractor’s side. And a retractor’s “release lever” must release the retractor’s grip on the strap, so that a driver can pull the strap further out, as needed. The fitting ends themselves should not need to be cleaned, unless mud or grime or liquid drips onto them. Otherwise, the process of regularly removing them from the tracks, and stowing them, between each usage, should keep them clean.
Because there are several varieties of fittings, these objects are not interchangeable. The concept of “one size fits all” does not apply to wheelchair securement. In replacing damaged or missing securement equipment, drivers and management must pay close attention to components that match, or “fit together.” Often, drivers retrieve an extra strap from a storeroom and toss it on the vehicle. This is particularly problematic because every vehicle may not even contain the same type of track, plate or disc configurations (e.g., hex-track versus slotted tracks). And, as noted, every configuration at a male shoulder belt’s endpoint does not attach to every type of lap belt buckle. The general rule should be: When one grabs a replacement part, try it out!
“One size fits all” does not apply to wheelchair securement.
Finally, in addition to their being kept clean, the tracks must not be damaged. Damage most often occurs when fittings are left in the tracks, and someone either steps on them or a wheelchair bumps or rolls over them. Because of the precision essential to the proper fit of a securement device into a damaged track section cannot be “bent” back into shape. Nor can a tiny corner or a hex-track’s hexagonal whole that is broken or bent be ignored. The track must be replaced when any part of it is damaged. To help protect the tracks, the major securement system manufacturers sell track covers that can be inserted into the entire length of tracks, so that they will not be damaged if someone steps on them, etc., even when no hardware is lying in them.
8. Once the chair is locked into place, drivers (or their attendants—not the wheelchair user’s personal care attendant) must tug on the chair (ideally in a few directions) to ensure that it does not move. Tugging on the chair with reasonable force, in several directions, will serve as a double-check on its proper securement. Obviously, no driver can simulate the 20 g-forces which proper equipment and securement is designed to endure with no movement to the chair. But a few firm tugs in a few directions will confirm that precise and complete securement has succeeded from the driver’s performance of the previous steps.
It is also important for drivers to not get carried away in tugging on a chair: A really hard tug or pull in a certain direction can damage certain wheelchairs. Apart from leading to costly repairs or replacements, a damaged chair can become “the weak link” in the chain of securement. It would be prudent for drivers to examine damages they observe on a wheelchair. However, drivers should not be expected to be experts on wheelchairs themselves—only experts on securing them. At the same time, some damage may be obvious. If it is, a reasonable and prudent driver will communicate this observation to his or her dispatcher. And if the chair is significantly damaged, or certain vulnerable parts of it are (e.g., breakage in the tubular frame members to which securement belts should be attached), it may pose a risk to transport that wheelchair and its user.
9. Every chair must be properly secured in four places. The rule is not one securement point for each wheel. It is four. Four for a four-wheeled chair or scooter, a three-wheeled scooter or a unicycle. Four tight, perfect fits into four undamaged securement tracks, plates or discs on the floor. And four proper attachments to four appropriate strong points on the chair’s structure. Curiously, this requirement is not a regulatory requirement. But it has been the clear, irrefutable industry standard for at least four decades. And the written instructions that accompany every quartet of securement devices clearly elaborates this standard.
A few rare securement systems actually include five securement straps. Attaching a fifth securement strap is perfectly fine as long as it does not compromise the fit of any other securement position.
Untrained and completely unfamiliar with wheelchairs and their securement, these steps can appear daunting. There are at least 500 models of traditional wheelchairs and scooters, and few are WC-19-certified “transportable wheelchairs.” There are hundreds of varieties of athletic or recreational chairs and many of these are WC-19 compliant. So altogether, there are hundreds of varieties of WC-19 wheelchairs. Fortunately, users of exotic wheelchairs (particularly chairs designed for athletic use, like “racing chairs”) typically travel in more conventional vehicles. Their users simply fold up their special-usage chairs, and store them in a trunk or hatchback. As noted, wheelchairs designed to athletic use are increasingly designed as transportable, or W-19 compliant, wheelchairs. So their attachment points are strong, stable, well-selected and either clearly-identified or obvious.
With minimal training and periodic (but absolute) monitoring, the steps to proper and absolute securement become so intuitive that they are almost automatic: Secure every chair at four points on the chair’s structure. Remove and stow the securement hardware. Toss and replace matching broken or torn parts. Make sure the pieces fit together. After securing the chair at four points, tighten the belts and tug on the chair to make sure the securement is tight. Keep the tracks clean.
Long before the notion of a WC-19 wheelchair was even a dream, the senior drivers of TA President Ned Einstein’s former paratransit company, PTS Transportation, marked the best securement point at each corner of every new wheelchair they loaded with red nail polish. Securing wheelchairs is not rocket science. It is not terribly more complex than washing your face, brushing your teeth and flossing. Keep the equipment clean, don’t miss any steps, and perform them correctly. One reason PTS Transportation never experienced a single wheelchair tipover during its decade in operations and estimated 29 million miles of travel was that any driver ever caught not securing one—forget it tipping over—was fired on the spot. And inspecting securement equipment during every pre-trip and post-trip inspection was mandatory—years before the promulgation of the ADA required this equipment to be checked in these inspections required by the Federal Motor Carrier Safety Administration (FMCSA).
Finally, there are still some zany securement devices out there—although they are slowly disappearing. Among the most common were the “C-clamps” employed on many fixed route transit buses. A pair of these clamps would be spaced to mirror the distance between the rear wheels of a manual wheelchair. That chair’s rear wheels would then be slammed into the clamps, and striking a “trigger” at the rear of the clamp would release springs what would enable both sections of the “C” configuration to close around the wheel rim. Occasionally a securement plate would be available for securing one of the front wheels or wheel positions (often placed in the bus’ passenger aisle, and covered with a plate to keep passengers from tripping over it or stepping on it, which could throw them off balance). One can see immediately that such approaches violate several securement requirements of the ADA. Most noticeable of their deficiencies, such devices are completely unusable for motorized wheelchairs.
Among the absolute worst securement devices are the “one-point” devices occasionally found on NEMT vehicles designed by body shops masquerading as vehicle converters. These devices involve a single, long screw stretching from the floor to the underside of a typical manual wheelchair. A bar generally the width of the chair is inserted at the top of this screw, and a wing nut is twisted to squeeze this bar against the underside of this chair. Even after tightening one of these contraptions with a torque wrench, TA President Ned Einstein was able to twist the wheelchair a full 90 degrees with one “huff and a puff.” Needless to say, such a device would not meet ADA two-inch movement requirements even if a vehicle merely stopped short on a slight angle. Also, like C-clamps, such devices cannot accommodate a motorized chair.
The point is, as rudimentary and universal as proper wheelchair securement is, and as highly-visible as the ADA-compliant manufacturers and their products are, the world of wheelchair transportation is filled with ignorance and reckless indifference. Most commonly, this indifference or gross incompetence is usually the result of tight schedules, and the pyramid of negligent operating dynamics that such schedules induce or create (see discussion below regarding “Underlying Causation”).
On any public transportation vehicle weighing less than 10,000 lbs. GVWR, installing a three-point occupant restraint system (i.e., lap and shoulder belt) at every seating position is the clear, irrefutable industry standard. Wheelchairs are necessarily encompassed by these regulations, since they are all seats. (They are simply not welded or bolted to a vehicle’s floor like the other seats.) To further ensure that these devices are installed at every wheelchair securement position on even larger vehicles, this requirement is also a formal provision of the ADA.
Pure and simple, securing every wheelchair user into his or her chair is every bit as important as securing the chair—even though the usage of either is not a regulatory requirement (with the exception of passenger securement in schoolbuses of all sizes in New Jersey). But is the clear, irrefutable industry standard.
As a footnote, those chintzy “posture belts” or “positioning belts” affixed to many wheelchairs, primarily to keep their occupants properly positioned in the chairs (and to keep them from occasionally slipping out of them, damaging their spinal columns, or making them uncomfortable) are not designed to withstand 20 g-forces. They are of no remote value in a vehicle collision. They are of little value even when a vehicle stops short. TA President Ned Einstein has been involved, as an expert witness, in at least three cases where paratransit vehicles stopped short and a wheelchair user blasted right through his or her posture belt’s plastic buckle, and was jettisoned onto the floor or into a seatback or other structure inside the vehicle. The only passenger securement belts that belong on a moving vehicle are the J2249-compliant lap and shoulder belts designed for a transportation purposes. (These same requirements apply to the seatbelts in every regular automobile.)
In a lawsuit, the fastest way for a defendant to lose is for the plaintiff’s counsel to learn that the driver saw a wheelchair user’s posture belt affixed to the chair… and thought, “Oh, he already has a seat belt. He doesn’t need the one on my vehicle.” This admission is a certain sign of negligent training—even if the driver was actually taught about the difference between J2249-compliant securement equipment and “posture belts.” That is because training has no meaning if it is not (a) understood, (b) retained and (c) applied. So merely blaming the driver for a securement failure is almost always a serious strategic error in a wheelchair tipover-related lawsuit. Negligent training and monitoring are almost always part of the causation, while negligent purchasing and maintenance are common.
Training has no meaning if it is not understood, retained and applied.
Here’s what few attorneys know, few care to investigate, and why wheelchair tipovers generally result in far lower settlements and damage awards than they should: In virtually every wheelchair tipover in most public transportation modes, not only was the vehicle running behind schedule, but the schedule was too tight. With the schedule too tight, the driver can only comply with it by making “safety compromises.” Of the batch of safety compromises most common, the one single compromise that saves the most time is not securing a wheelchair. During the five minutes this effort might take, a vehicle could travel several miles. During this time, a marginally-paid NEMT provider (particularly when squashed by a crooked or incompetent broker, as are increasingly in charge in most states and counties) can actually make $10 or $15. For more on the overarching concept of safety compromises, feel free to navigate to Safety Compromises.
In almost every wheelchair tipover, the vehicle was running behind schedule, and the schedule was too tight.
Tight schedules have been the underlying cause of nearly half of the 600 incidents TA President Ned Einstein has examined as an expert witness as of 2016—including almost every one of nearly 90 cases involving wheelchair tipovers. Interestingly, tight schedules occur in different modes for different reasons:
- In fixed route transit service, routes are often so tight that, in real life, the “running time” is so long that drivers must commit safety compromises merely to create “recovery time” at the end of each run. In many large urban transit systems, drivers have no recovery time whatsoever on all or most routes—even while making scores of safety compromises on every route, such as never letting a boarding passenger reach a seat or stanchion before zooming away from the stop. That wheelchairs are not secured is hardly a mystery.
- In paratransit service, most schedules are created by scheduling software—often overseen by the trouble-shooters of the software developer given the agenda of making the system as efficient as possible. Stuck with unrealistic schedules, the private contractors engaged by most transit agencies to provide this type of service have a choice between losing money via countless liquidated damages assessed for lateness, losing their contract (or not having it renewed) or making safety compromises to stay on schedule.
- NEMT services are virtually starved to death financially by idiotic rate structures, the lack of understanding about scheduling, and increasingly by the imposition of “brokers” whose contracts (with hapless state health departments or other state or county agencies) are usually designed such that the brokers get to keep the funds that they don’t pay to companies providing the actual service. Often, these service providers’ profits are limited by numerous provisions that make efficient scheduling impossible—not even considering that the brokers are generally charged with the task of teaching them how to schedule efficiently, much less making sure they operate safely.
In simple terms, in all three of these modes, if a driver wants to “catch his or her breath” at the end of a run—a critical factor in limiting fatigue and stress—that driver must create recovery time. Because drivers rarely design the schedules, the only means of creating any recovery time on a route with a tight schedule is to commit any of a number of “safety compromises.” A fixed route driver can create considerable recovery time by rarely allowing a boarding passenger to reach a seat or stanchion before pulling away from the stop. But no single boarding episode can create remotely the amount of recovery time that failing to secure a wheelchair can. A typical driver securing a garden-variety manual wheelchair can easily spend three to five minutes doing this (including affixing the lap and shoulder harness to the chair’s occupant). In most service areas, a vehicle can travel several miles during this interval of time. In NEMT service, a service provider can often earn more money in this short time interval than its driver is often paid for a full hour of work. So it should be easy to see why wheelchairs are so often not secured at all—much less properly.
Especially for Lawyers
Most plaintiff’s attorneys make the mistake of thinking that wheelchair tipovers “speak for themselves,” and that a decent settlement is easy. The problem is that tipovers speak for themselves only to experts in wheelchair securement. When a genuine expert is involved in a tipover case, it is almost impossible to lose it—even while many defendants sell the vehicle-in-question long before the plaintiff’s expert has a chance to examine it, discard drivers’ logs, and spoliate all types of evidence.
So one problem with WCH tipover cases is that an expert is often engaged too late in the process. Otherwise, the problem with many approaches is that they leave most of the money “on the table.” To begin with, many privately contracted service providers, and particularly all brokers, have a “commercial agenda” exponentially more important that any damage award or settlement could remotely approach. A broker or mega-contractor with a statewide contract, a major-city contract, or vehicles and operations in multiple places, considers the statement, “We hereby award you X million dollars” an annoyance. The single sentence that they (and particularly their regional managers) live in dread of is, “You know, I think this year we’ll go out to bid.”
The fixed route transit sector has entirely different dynamics. Most transit service is provided by some public agency. Even where this agency does not have an immunity cap, it has a monopoly on service, and thus, no commercial agenda whatsoever. But in a lawsuit, it still lives in the Land of Precedent. And nothing sets a genuine precedent (not an appellate court precedent) as much as a lower court trial victory that creates a template for every successive plaintiff’s attorney in the defendant’s service area, since the vast majority of incidents in transit service, and roughly half of them on any on any public transportation mode, are caused by one “safety compromise” or another. Securing a wheelchair takes time. On a route with a tight schedule, not securing one is the most efficient safety compromise imaginable.
Of those precedents most alarming is the judge ordering the defendant to add another bus or two to a route so that its drivers need not make “safety compromises” to remain on schedule. Lest any attorney think such a mandate is farfetched, he or she need only skim Westlaw for Bus Riders Union v. Los Angeles County Metropolitan Transportation Authority (1999) [a class action suit, not a WCH tipover case]. In BRU v. LACMTA, the judge ordered the defendant to purchase 3200 additional buses. And that lawsuit did not involve a single injury.
TA President Ned Einstein was involved, as an expert, in one lawsuit where the removal of the threat of injunctive relief translated into a settlement several zeros greater than the actual damages. In that one, the wheelchair user whose chair was never secured on any of the 20 routes he rode regularly (as a courier) merely bumped his head on a seated passenger in front of his chair when his bus stopped short. But that transit-dependent plaintiff lived in fear for his life since the defendant’s drivers never secured his or any other wheelchair on any route. His livelihood depended on using that transit system So he didn’t need damages for the bump on his forehead. He needed the system made safe.
Fortunately for that case, and typical of many U.S. transit systems, every route in the system was tight. This took a bit of work to document. But the defendant was not about to risk adding 15% more buses to its entire fleet (the one frightening part of the injunctive relief sought)—and was delighted to trade off a six-figure settlement, retrofit many of its 200 buses with better securement equipment, hire a full-time ADA coordinator, and provide every other item on a 1 1/2-page list in exchange for removing that single demand from the Amended Complaint.
With enlightened help, especially early in the process, lmost any plaintiff’s attorney can win a wheelchair tipover case. The challenge is to make money on it. Of course, this requires some work—and the involvement of a genuine expert who knows what to ask for, what it means, and what to do with it. Keep in mind that most victims of wheelchair tipovers are elderly. They are obviously all disabled. Few are employed. And most have multiple severe medical problems. So merely winning or settling for direct damages in a wheelchair tipover case is barely worth the effort.
Almost any plaintiff’s attorney can win a wheelchair tipover case. The challenge is to make money on it.
In a wheelchair tipover case, the plaintiff’s counsel can either make some easy money, or he or she can sometimes earn his or her client a small fortune while making the system safer for everyone in the community, including pedestrians who never ride buses. A recent study by Seattle METRO found a correlation between tight schedules and left-turning accidents. And while almost commonplace for transit systems with tight schedules, turning too quickly is an asterisk among the many safety compromises transit drivers make constantly. Among the most common safety compromises, the single compromise that saves infinitely more time than any other is the failure to secure a wheelchair.
There actually are defenses to wheelchair tipovers. However, they are almost always lies, spoliation and legal shenanigans. Such strategies and tactics can work. But they will never work against a hard-working attorney willing to put the necessary effort into a wheelchair tipover case, and who engages an expert with a sweeping knowledge of wheelchair securement. For such an expert, this website is only a primer. But for a wise, hard-working attorney, it is a good starting point.
 The sole exception is the MV1, a new “Checker-Cab-like” automobile produced in wheelchair-accessible format at the factory level—greatly decreasing costs (by eliminating the “conversion”). Unfortunately, MV1’s designers chose to install the gas tank beneath the seat behind the driver’s seat—which would typically be a “flip-up” seat in an accessible van or minibus. But having replicated this error at the design, engineering, tooling and production levels, the company could not correct it. So to squeeze two wheelchairs into an MV1, a mish-mash of tracks overlap in the otherwise shotgun seat area. Visually, it would appear impossible to squeeze even two moderate-sized chairs into this space, even with the overlapping tracks. Perhaps for this reason, few such vehicles are deployed in paratransit service—even though the limited scheduling capabilities of many paratransit services (particularly NEMT service) rarely manage to transport more than one chair at a time in any vehicle (not for such systems, this vehicle would be perfect.). Further, the even more dimwitted thinking of some NEMT “brokers” increasingly inhabiting the U.S. NEMT landscape assign trips to their service providers that further constrain their ability to shoehorn more than one wheelchair at a time into a vehicle, given reasonable ride times.
 A few of these sizes have been discontinued by some of these OEMs. Plus some sizes, in “incomplete vehicle” form, are sold only to vehicle converters.
 While this configuration works fine when everything is done properly, it can compromise lap and shoulder belt attachments when the wheelchair strap is not completely locked or snapped into the floor track (or plate or disc). When this omission occurs, the lap and shoulder belts system is merely “draped” over the wheelchair user. However, the same would be true if a lap belt’s floor fitting is not completely locked or snapped into the floor track (or plate or disc).
 The famous SOWHAT project conducted near the turn of the Century produced specifications for a “transportable wheelchair.”—i.e., a chair designed for transportation purposes, and designed to withstand the 20 g-force criterion of SAE standard J2249. The main feature of this chair—now available in hundreds of variations, including many for athletic and other usages—is that the chair is designed with a strong, optimum securement point near each wheel position that is clearly identified. This type of chair is commonly referred to as a “WC-19” wheelchair.
 “Running time” is the actual time it takes a vehicle to travel from one end of the route to the other—not the “cycle” time depicting this on the schedules distributed to the general public (in hard-copy form or on-line). “Recovery time” (or “layover time”) is the interval that should exist between the end of one run and the start of the vehicles’ return to the opposite end of the route.