Rights in Transit

Public Transportation and the Right to the City in California's East Bay

Kafui Attoh, Mathew Coleman, Sapana Doshi

• Éditeur: University of Georgia Press
• Année: 2019
• ISBN:
  9780820354224
• Sujet: Politics & International Relations
• Sous-sujet: Civil Rights in Politics

Is public transportation a right? Should it be? For those reliant on public transit, the answer is invariably "yes" to both. Indeed, when city officials propose slashing service or raising fares, it is these riders who are often the first to appear at that officials' door demanding their "right" to more service. Rights in Transit starts from the presumption that such riders are justified. For those who lack other means of mobility, transit is a lifeline. It offers access to many of the entitlements we take as essential: food, employment, and democratic public life itself. While accepting transit as a right, this book also suggests that there remains a desperate need to think critically, both about what is meant by a right and about the types of rights at issue when public transportation is threatened.

Drawing on a detailed case study of the various struggles that have come to define public transportation in California's East Bay, Rights in Transit offers a direct challenge to contemporary scholarship on transportation equity. Rather than focusing on civil rights alone, Rights in Transit argues for engaging the more radical notion of the right to the city.

CHAPTER 1

Torts, Transit, and the “Majestic Equality” 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.

–Anatole 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.

–Bill Lann Lee, Opening Statement in Darensburg v. MTC, October 1 2008

In his book Democracy in America, Alexis de Tocqueville observed that there was “hardly a political question in the United States which does not sooner or later become a judicial one.”¹ 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 court’s impact on transit, it also returns, yet again, to the skeptics of rights talk with whom the book began. To recall, for such skeptics—like the AC Transit board member quoted earlier—rights were a waste of time. Indeed, they were a distraction. Far more important than rights was the practical task of simply getting a “better transit system for everyone.”² The focus ought to be on “improving what we’ve got.” Of course, as we argued, such demands, however understandable, often rest on a rather flimsy premise—namely, that avoiding rights is actually possible, and that securing a “better transit system” can be accomplished without dirtying one’s 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-face—as they are prone to do—with 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 cases—that is, they deal with questions of liability and tortious behavior—the 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 cases—especially the tort cases—legal 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 point—and 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 “caused” 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. Bonanno’s theory of liability against the CCCTA was an interesting one. It relied on California State Government Code sections 830 and 835—sections 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 “dangerous condition” as a condition of property “that 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.”⁷ 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 plaintiff’s burden of proof was substantial. The plaintiff was asked to prove that (1) the bus stop in question posed a persistent risk; (2) that Bonanno’s 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 plaintiff’s 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 CCCTA’S defense focused less on challenging the plaintiff’s assertion of the intersection’s danger—which was obvious—and more on asserting the agency’s 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 County—a 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 Bonanno’s injuries. The court ordered the agency to pay Bonanno $1.6 million. The Supreme Court’s decision was not without its critics, two of whom sat on the court itself. Judge Marvin Baxter and Judge Janice Brown’s dissenting opinions were strongly worded. For Baxter, the view that “location” could amount to a dangerous condition of public property was an “inapposite theory of liability.” Owners of property, he added, “should not be made to ensure the safety of all persons who encounter nearby traffic-related hazards in reaching their property.”¹¹ 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 building’s 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 building’s location therefore presents a dangerous condition. . . . Under the majority’s 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 jury’s 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 majority’s 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 court’s 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 litigation—as 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 “purely physical condition” of the property itself—not its location or geographic context.¹⁴ Bonanno’s injuries, Brown asserted, were caused solely by the negligent driver. Judge Brown’s dissent also raised some of the more practical concerns first broached by Baxter. Bonanno’s award of $1,606,130, Brown noted, was not an insignificant sum—and especially for a public agency like CCCTA. The court’s 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 property—and whether a dangerous condition referred to the faulty condition of the property itself, or whether it instead could constitute the property’s location. Of course, the court’s decision in favor of Bonanno offers a partial answer to the question with which the chapter began—namely, of where the rights and duties of riders begin and end. In Bonanno v. CCCTA, the court’s answer was quite clear: the duties and liabilit...