Bus Kill

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

Shapey is currently deciding whether to file a new appeal. And Montes is now 17 years old.

The struggle over those internal reports isn't limited to the Montes case, says Jeffrey M. Kimmel, another lawyer who represents bus-crash victims.

Kimmel recalled the case of Flavio Herrera, a Queens man hit by a bus after being pushed into the roadway during a scuffle with another man on the sidewalk. Herrera lost a leg. He sued, alleging that the driver had seen the scrap and had enough time to stop.

During the lead-up to the trial, the Transit Authority failed to turn over the internal report on the incident, even though Kimmel had sent a subpoena asking for the document. Just before opening arguments, the two sides squabbled over whether all documents had been turned over. The Transit Authority lawyers insisted in court that they had.

Then, in the middle of the trial, a TA expert witness disclosed that he had internal reports on the incident in his file.

"We say, 'What reports?' " Kimmel recalls. "He gives the file to us, and we find a report which was never disclosed, which says the TA's internal investigation found fault with the driver and found skid marks, which they had denied. We went nuts."

The next day, the now-irate judge in the case found the TA liable, called the authority's conduct "egregious," and ordered the jury to simply decide how much money Herrera should get. Jurors awarded him $4.8 million.

"That kind of thing happens in movies, but it's not supposed to happen in the real world, where crucial information comes out in the middle of a trial," Kimmel says.

The lawyers for the MTA claimed that the failure to turn over the report was "inadvertent."

In a second case, Kimmel recalls, the central issue was whether a bus had actually hit a pedestrian and caused a big gash on her head. The bus driver denied his vehicle struck the plaintiff. The plaintiff insisted that it had.

Then, at trial, a Transit Authority witness mentioned on the stand that photographs had been taken at the scene. "We said, 'Photographs? What photographs?' " Kimmel recalls. "And so he pulls out these photos which showed blood on the mirror of the bus."

"If our firm had done that," Kimmel says, "we could have been disbarred. But they get the benefit of the doubt a lot of the time."

In the end, for most people, the stories of buses running over pedestrians are just part of the landscape, as inevitable here as a Yankees playoff series or a parking ticket. But for the families of the dead and injured, the pain never quite goes away.

Robert Levine, for one, hopes that the lawsuit over his mother's death will result in something beyond a monetary settlement.

"I would like to see whatever care that's possible, in terms of driver training or the physical setups of streets, to make it less likely that anything like this will happen again," he says.

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