The Jacob Strebler Case

Presented at
SCHOOL TRANSPORTATION NEWS, WESTERN STATES CONFERENCE & TRADE SHOW
August 11, 1998 - Las Vegas, Nevada
Richard Mark Gergel, Gergel, Nickles & Grant, P.A., Columbia, South Carolina, 803-779-8080
Note: This presentation by attorney Richard Gergel offers an explanation of the law governing the use of vans in school transportation service that do not conform to school bus safety standards. This explanation derives from Gergel's successful prosecution of the Strebler case and outlines the basic principles underlying that case. It addresses the structural differences between school buses and nonconforming vans, outlines the basic legal standards and common questions regarding vehicles used to transport students under the Motor Vehicle Safety Act, explains why state laws authorizing schools to utilize nonconforming vans do not modify or affect the existing federal statues, and more.

A. In 1974, Congress adopted amendments to the Motor Vehicle Safety Act prohibiting the sale to schools of new vehicles with a capacity of more than 10 unless those vehicles met federal school bus safety standards. "Schools" were defined as pre-primary, primary or secondary schools and the law applied to the transportation of students to and from school or any school related activity. See, 15 U.S.C. §§ 1391-1397 and 49 U.S.C. § 30112 and the applicable regulations at 49 C.F.R. § 571.

B. From 1974 until 1997, the National Highway Traffic Safety Administration (NHTSA), which had responsibility for administering the law, did not initiate one single enforcement proceeding in the entire country. Meanwhile, car dealers experienced high consumer demand for the larger vans, particularly from schools, churches and other institutions, and aggressively marketed these vehicles. In this environment of lax government enforcement and potential big profits, van sales to schools significantly increased, particularly over the last decade.

II. Structural Differences Between School Buses and Nonconforming Vans

A. A school bus must meet numerous mandated federal safety standards. These include four standards unique to school buses: School Bus Rollover Protection, School Bus Body Joint Strength, School Bus Passenger Seating and Crash Protection, and School Bus Pedestrian Safety Devices. School buses have multiple horizontal and vertical steel beams welded together in such a manner that essentially wraps the occupants in a cage of steel. The inside and outside of the bus is further reinforced by thick sheets of steel. A school bus is generally heavier than a comparable sized passenger vehicle and has exit doors, superior roof structure, an interior aisle, significant interior padding and a far superior center of gravity. School buses are generally painted a bright yellow, which is, in and of itself, a significant safety feature.

B. The traditional 15 passenger van is structurally a significantly different vehicle. The area behind the driver is anticipated only to carry cargo and does not have side bar protection which accompanies normal passenger vehicles, including mini vans. In contrast to the school bus design, which has a shell of horizontal and vertical steel beams and thick sheets of steel on both sides of the shell, vans have a much thinner outer layer of sheet metal, thin interior vertical strips to hold the outer layer in place, and the interior molding and plastic of the passenger compartment on the other side of these strips. Many of these vehicles use cardboard as the primary component between the exterior of the vehicle and the interior compartment.

C. Although the government keeps no statistics specifically on school vans or the larger vans in general, there is considerable data which indicates that the vans are significantly less safe. Some of this data is as follows:

1. During the five year period from 1992-1996, there were 4,333 deaths in the light truck category from collisions in which the impacting vehicles struck the left side of one of these "light trucks". During the ten year period from 1986-1995, there were only nine deaths in the entire United States from school bus accidents from left sided impacts.

2. In the calendar year 1994, 66 people died in collisions involving a school bus and some other vehicle. Although there were many more occupants in the school buses than in the other impacting vehicles, 64 of the 66 persons who died in these collisions were occupants of vehicles other than school buses. In the calendar year 1994, there were only two occupant deaths in the entire country inside school buses. This experience was also borne out in South Carolina. Over the last 18 years, since 1980, we have had only one occupant death inside a school bus. This particular death was also a very freakish experience where a tree came through a window and struck an occupant.

3. When evaluating the relative safety of all passenger vehicles and school buses per road mile, the data further supports the conclusion that school buses are markedly safer vehicles. Again using the calendar year 1994, there were 21,813 deaths in passenger vehicles, which translates to .86 deaths every 100 million miles. In school buses, there were two occupant deaths, which translate into .005 deaths per 100 million road miles. In other words, passenger vehicles per road mile had a fatality rate 170 times higher than school buses.

4. School buses are the safest form of mechanicalized transportation that exists. School buses are 34 times safer than train travel and 4 times safer than commercial aviation.

III. Utilizing the civil justice system to protect the safety of school children.

A. On July 12, 1994, six year old Jacob Strebler and other classmates at Heathwood Hall Episcopal School left the School campus to participate in a swim lesson. Jacob was being transported in a 15 seater Ford Econoline Van that did not meet federal school bus safety standards and was sold to the school in violation of the Motor Vehicle Safety Act. When the Heathwood van entered an intersection outside the school campus, an 18 wheeler ran the red light and struck the van from the left side. As a result of the collision, Jacob Strebler was fatally injured and a number of his classmates suffered significant injuries as well.

B. The Strebler family was shocked to learn that the vehicle in which their son was traveling did not meet mandated federal safety standards for a school vehicle and that the van carried a sticker indicating that it was not designed as a school bus. The family also subsequently learned that the headmaster of the School was informed subsequent to the sale that the van did not meet federal safety standards and, despite multiple communications with the School from the dealer who sold the vehicle, refused to take the vans off the road. The last communication from the car dealer to the School was on July 11, 1994, literally the day before the fatal accident.

C. The Strebler family brought an action against the truck driver and trucking company which caused the accident, the car dealer which sold the vehicle to the School, and against Heathwood and its headmaster for utilizing a vehicle after becoming aware that it did not meet federal school bus safety standards. The Strebler family asserted a claim of negligence per se against the car dealer for violating a specific federal statute and asserted against the School a claim of ordinary negligence for knowingly utilizing a vehicle they knew did not meet federal school bus safety standards. This was apparently the first instance in the United States where a family utilized these federal standards to assert a claim in a wrongful death or other tort action.

D. The case was ultimately settled against all parties in an amount which represented the largest settlement in a wrongful death of a child in the history of South Carolina. The trucking company paid $1,000,000.00. The amounts paid by the other defendants are confidential. As a condition of the settlement, the School agreed never to utilize again a vehicle not meeting federal school bus safety standards to transport students and the car dealer agreed never to sell another vehicle of this type to a school to transport students to or from school or school related activities.

IV. Basic legal standards and common questions regarding vehicles used to transport students under the Motor Vehicle Safety Act.

A. The relevant federal statutes prohibit the sale to a school of a vehicle under the following circumstances:

1. The vehicle must be sold new;

2. The vehicle must have a capacity of greater than 10;

3. The vehicle must be used to transport pre-primary, primary or secondary students to and from school or school related activities; and

4. The vehicle must not meet federal school bus safety standards.

B. Why does the law only applies to new vehicles?

Response: The reason is that when the school bus safety provision was added to the existing Motor Vehicle Safety Act, the only applicable vehicles covered by the original Act were those sold new. This made sense under the original Motor Vehicle Safety Act since it was not easy to mandate new safety standards retroactively. There is no question that as to the school bus safety features, this is a loophole in the federal law. However, in the course of investigating illegal van sales to schools, we found most involved sales of new vehicles.

C. Why does the law apply only to the seller and not the buyer?

Response: Again, this is a feature of the Motor Vehicle Safety Act, which prohibits manufacturers and dealers from selling unsafe vehicles and does not make it illegal for a consumer to purchase such a vehicle. There is no question that this loophole has created an incentive by some schools to try to defeat the intent of the federal statute by trying to find a dealer willing to sell vans to schools. As the Strebler case indicated, however, the schools undertaking such a course of knowingly utilizing vehicles not meeting federal safety standards face potential liability under ordinary negligence theories unless their state specifically authorizes this use of such vehicles.

D. Do state laws authorizing schools to utilize nonconforming vans modify or affect the existing federal statute?

Response: No. Federal law is the supreme law of the land and any sale by a dealer to a school is in violation of the federal statute, notwithstanding efforts by a state to make such transactions lawful. The primary effect of such statutes is to potentially defeat claims against schools utilizing these vehicles from grieving families in wrongful death cases or seriously injured children who have survived collisions in these unauthorized vehicles.

E. What is a pre-primary, primary or secondary school?

Response: The law has not been firmly established on this issue, but it is likely that any institution carrying the name "school", "academy", "kindergarten", or other similar name will probably be subject to the statute. Moreover, any program which has sequenced instruction or promotes itself as teaching certain basic skills will also likely be considered to be a school.

F. Does the statute include a school's summer or camp programs?

Response: Yes.

G. Isn't a van safer than a school bus since the van has seat belts and school buses do not?

Response: No. In fact, comparable sized small school buses are required to have seat belts because they weigh less than 10,000 pounds. School buses, as indicated above, have markedly superior per road mile safety records than all other vehicles, regardless of the seat belt issue. In fact, school buses are designed with a "compartmentalization" concept, which keeps children within and near their seats by placing the seats forward to them very close and with significant interior padding and other safety features.

H. Why does the law apply to school children and not to day care centers, girl scout troops and programs for the elderly?

Response: Congress, in its wisdom, created special protections for school children. This law has not been extended to protect others, and Congress should look to address this issue, particularly for children transported by day care centers.

I. Aren't school buses significantly more expensive than vans?

Response: The initial cost of a 15 seater school bus is approximately $8,000.00 to $9,000.00 greater than a comparable sized van. However, the school bus has a significantly longer road life and is less expensive to maintain. Recent calculations have determined that the per road mile cost of a 15 seater school bus is actually cheaper than a comparable sized van.

J. If parents can transport kids legally in these vans, why can't the schools?

Response: Parents can transport kids on motorcycles to school or let them cross dangerous roads unsupervised, and no one would suggest schools can do this. Federal law expects higher levels of safety to be provided by school officials transporting school children to school or to school related activities.

V. What can a school transportation official do to help enforce the law and, thereby, protect the safety of school children?

A. You can inform all school officials attempting to purchase these nonconforming vans that such a sale violates the Motor Vehicle Safety Act and the seller is breaking the law. Moreover, the purchaser of such a vehicle faces potential liability under the common law of negligence should a child be injured or die in a collision in a nonconforming van. You may want to go on record about such unlawful sales because schools and school districts may be very reluctant to engage in such sales if they know that there is, in writing, concerns raised about these vehicles that might be disclosed later should some tragic event occur.

B. Any violation known can be reported confidentially to the National Highway Traffic Safety Administration. The contact person is Mr. Allen Kam in the Office of General Counsel, whose number is 202-366- 5248. Based upon recent new attention to this area by NHTSA, it is likely that any report will be promptly investigated and sanctions taken against the dealer who sells such a vehicle.

C. You may advise families who have children injured or killed in such vehicles of their potential legal rights to pursue damage claims against the parties who participated in the sale or purchase of nonconforming vans. In the final analysis, the threat of liability may be the most effective deterrent against the use of nonconforming vans to transport school children.

This and other information can be found at The School Transportation News Website.