Bus Kill

In the crosswalk, New Yorkers find themselves in the cross hairs

Woodruff, according to the police report, was traveling at 33 miles per hour in a 30-mph zone. But Alan Shapey, Caraballo's lawyer, says his own calculations—based on the 80-foot skid mark left by the bus—suggests that Woodruff was traveling closer to 40 miles an hour and that he had distance to see the youth and slow down. That speeding allegation is the central claim in the lawsuit.

"It's the second day of school," Shapey says. "You see a kid in the street, you slow down. You are a professional driver. You have the power to avoid this."

Woodruff himself claims he was traveling "normal speed," and that Caraballo ran into the roadway against the light.

"Some fool was chasing him," Woodruff told the police, records show. "He was facing me at the time, I tried to stop but I couldn't, I hit the brakes and the bus slid to a stop."

A witness, Judy Moore, blamed the accident on "senseless playfulness by the kids," the police report says. Another witness, Thomas Calderon of Long Island City, said one boy pushed the other and Caraballo lost his balance and fell forward.

Caraballo now wears a helmet to protect his brain from further injury, Shapey said.

Caraballo's family, of course, isn't the only one suing the MTA or its subsidiaries over a bus accident. In fact, the number of bus collisions and the deep pockets of the bus agencies account for a huge legal industry. This year alone, the Transit Authority has been sued 400 times, the vast majority involving personal-injury claims. In 2006, the MTA paid out $160 million in claims, budget records show.

Periodically, the authority gets hammered in court. In May, a Bronx mom crippled by a bus in 2002 won $16.5 million. The bus had crossed a road divider and plowed into her family's vehicle, severing Zulma Betancourt's spine.

Last November, a jury awarded $10 million to Youlanda Scott, who lost a leg when an MTA bus rolled into an enclosed terminal in 2003 while Scott was seated on a bench. The driver claimed he lost control of the bus.

Although bus companies often conclude internally that the collisions were preventable by their standards, their lawyers often play hardball in court with victims. Take the bitter fight in the case of Miguel Montes, an 11-year-old Bronx boy who suffered brain damage when he was hit by a bus in 2001 after running into the street.

In a trial that, according to its transcript, resembled physical combat, Transit Authority lawyer Edward Flores not only blamed Montes for the accident, but he suggested both that the injuries were minor and that the boy's learning disability existed long before the collision.

Flores blamed the boy's problems on his parents, whom he said also had learning difficulties. On top of all that, he declared that the boy came from a troubled home, implying once again that his learning disabilities were pre-existing and were not the result of the crash.

In his closing, Flores said of the child: "This is clearly a case of a person who does something reckless, completely reckless and unsafe, to himself, and then suffers for it and then turns around and blames somebody else and wants to get paid."

The tactic was effective. A jury found in favor of the Transit Authority.

The Montes case was also notable in that the Transit Authority failed to turn over an internal report that concluded that the driver made four mistakes that contributed to the accident.

The Transit Authority almost always sends investigators to accident scenes, and detailed internal reports are usually completed within 30 days. But very little of that work is made public. And agency lawyers fight attempts to use the reports in court.

Shapey only obtained the report nearly two years after the Montes crash, when he learned such reports existed and sent a special subpoena to the Transit Authority.

The central issue in the case was whether the driver saw the boy with enough time to stop his lumbering vehicle. During the trial, Shapey sought to introduce the report as evidence because, he argued, the driver made statements to the TA's investigators that contradicted his trial testimony.

But TA lawyers convinced a judge to block that move. They argued that the report's conclusions involved internal standards that are higher than what would be expected from a motorist under the law.

Thus, the jury never heard those statements and rejected Montes's lawsuit.

Shapey appealed, arguing that the judge erred in blocking the report. On October 23, a state appeals court ruled against Montes. The majority of the panel concluded that the report didn't amount to a conclusion that the driver erred. Instead, they said, it was an analysis of whether the driver's handling of the incident measured up to the TA's internal standards.

Two dissenting judges, however, concluded that the report should have been admitted because "[i]t contains 'admissions' against the TA's interest, or because it contains conclusions based on an analysis by trained investigators," the judges wrote. "Merely stating that the report employed a high[er] standard than the common law does not make it so."

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