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Risk Management Briefing: The 15-Passenger Van Controversy

The Issue: The 15-passenger Van Controversy

On April 9th of 2001 the U. S. Department of Transportation issued a Consumer Advisory concerning the use of 15-passenger vans. It stated: "The National Highway Traffic Safety Administration NHTSA is issuing a cautionary warning to users of 15-passenger vans because of an increased rollover risk under certain conditions."(DOT press release) This warning is the result of van studies that go back to 1968. When a series of deaths in what is called "non-conforming busses, alerted the D.O.T. that there may be a problem. This briefing is an attempt to review the history of the safety of 15-passenger vans, the current situation regarding the use of them to transport clients, and recommendations for your program.

Historical References

1960's

The origin of this issue starts in 1965 with Ralph Naders book "Unsafe at any Speed." In his effort to hold auto manufacturers accountable for building "unsafe" vehicles he drew a lot of attention and funding to review auto safety standards. During that same period the "National Transportation Safety Board investigated a number of catastrophic school bus accidents in which children were killed or severely injured because of the vehicles joint failure of structural collapse."(NTSB/SIR-99/02). As a result, in 1965 the NTSB issued the first of over 40 "Safety Recommendations on School Bus Crashworthiness and Operations."

1970's

From 1968 to 1973 the NTSB released eight more Safety Recommendations before Congress chose to act and in 1974, created the School Bus Safety Amendment thus establishing minimum safety standards for school buses. This created the famous Title 49:

"Under 49 U.S.C. 30101, etseq., …new vehicles that carry 11 or more persons that are sold for transporting students to or from school or school related events (are now regulated as school buses)… a vehicle is regarded as being sold for use as a school bus if, at the time of sale, it is evident that the vehicle is likely to be significantly used to transport students to or from school or school related events. This statute applies to school buses sold to public as well as parochial schools. Thus, a dealer selling a new 15-passenger van to be used for school transportation must ensure that the van is certified as meeting our school bus FMVSSs. Federal regulations do not prohibit the use of vans by schools, but require any van (with a capacity of more than 10) sold or leased for use as a school bus to meet the safety standards applicable to school buses."

The main points of the School Bus safety amendment was:

1. It only applied to schools and school children (not school "aged" children)
2. They could still use vans they just couldn't buy or lease them
3. It defined a school bus as a vehicle that "was originally designed to carry 11 or more passengers" used to transport students.

1980's

From 1975 to 1983 the NTSB released 5 "Safety Recommendations on School Bus Crashworthiness and Operations." When in 1985 their recommendations broadened to Recommendation No: H-83-040.

At this point all the NTSB is doing is making recommendations to the various states. It is up to the states to take action. What is important to note is that they have changed their language to include other organizations that are not schools.

1990's

From 1983 to 1997 the NTSB released 30 more Safety Recommendations on School bus Crashworthiness and Operations. Then "During an 11 month period beginning in spring of 1998, the NTSB investigated four accidents involving non-conforming buses, that resulted in 9 people dying and 36 people sustaining serious and minor injuries. Most of the victims, including the eight fatalities, were children." (NTSB/SIR-99/02). As a result the NTSB published a 72 page Highway Special Investigation entitled "Pupil Transportation in Vehicles not meeting Federal School Bus Safety Standards" (NTSB/SIR-99/02)

Conclusions of the NTSB Report:

• In almost each of the 4 accidents the driver of the van was partly or totally at fault for the accident
• If the students who died had been made to wear their seatbelts they probably would have lived. The cause of their death in almost every case was being ejected from the vehicle.
• If the vehicles met the FVSS's for School buses there would have been less damage and potentially less injury and death.

The NTSB made the following recommendations in the report. In this case the NTSB has refrained from defining "but not limited to" as they did in 1983.

I contacted a lobbyist in D.C., familiar with the transportation industry to get the political perspective on the issue. Although he refused to be formally interviewed he did tell me the following.

"You need to read behind the lines. Basically the NTSB has been trying since 1983 to get Congress to tighten up the school bus safety amendment. The problem is that every church and camp in the country uses vans because they are relatively cheap to get. Furthermore, every time anyone in D.C. uses the phrase automotive safety standards Detroit goes to war. Improved Safety standards mean the sticker price of a vehicle goes up. It would cut into their sales of 15-passenger vans. In writing their report, the NTSB is basically saying, "Okay we can't get congress to take care of the problem let's make the governors handle it state by state."

2000 and Beyond

Starting on December 29th 1999 a series of six 15-passenger van accidents would take place in a three-month period. Besides the mode of transportation used they all had in common the fact that the van was being used to transport a college sports team. Ohio University, Kenyon College, De Paul University, Prairie view A&M, University of Wisconsin, and the University of Tennessee all experienced students being either killed or injured while driving a 15-passenger van. In all of these accidents, except one, the van rolled over during the accident.

As a result in April of 2001 the NTSB released a "Research Note" entitled " The Rollover Propensity of 15-passenger vans" They reviewed all Single Vehicle (SV) crashes that took place involving 15-passenger vans and crunched the numbers. What they found is summarized in the following table.

They then took several vehicles and performed tests on them in a controlled environment to determine whether or not they are likely to roll over. What they found was that:

1. 15-passenger vans handling characteristics change when fully loaded.
2. Fully loaded 15-passenger vans are 40% more likely to roll then fully loaded mini-vans.
3. Sudden vehicle maneuvers could increase the propensity to roll over.

Also this year the NTSB released their report "Putting Children First" (NTSB/SR-00/02) where they made recommendations concerning the transportation of students. In the Section called "Passenger Vans used for School Activities" they reiterate their 1999 report and go on to state:

1. Insurance companies have begun to recognize the safety advantages of school buses over vans, and some will no longer insure operators that use vans to transport students.
2. South Carolina enacted legislation in 2000 to phase out the use of non-conforming buses by private schools and others.

What the report does not tell you is that the reason South Carolina enacted their legislation (called Jacob's Law, after a 6 year old boy Jacob Strebler who was killed in the below 15-passenger van accident) was due to a landmark court case.

"In 1994, Heathwood Hall Episcopal school of South Carolina had a 15-passenger van (owned by the school) involved in an accident - several injured, one young man died. The parents sued everybody. The driver of the van was not at fault - truck ran a red light and hit them broadside. The result was the single largest wrongful death settlement ever in the state of South Carolina. Here's why: 1. It is a violation of Federal Law (title 49) for a dealer to sell a vehicle to a school that does not meet federal Motor Vehicle safety Standards consistent with the 1974 Congressional mandate for school bus safety. The van dealer was found liable. 2. Federal regulations DO NOT prohibit the use of these vehicles once the school owns them, but the school was found negligent for using an improper vehicle to transport students." (E-mail, David Baker-St. Marks)

What this tells us is that the courts are slowly closing the loophole that was created in 1974. In addition, it is not hard to figure out that if the courts are ruling that a school was found to be negligent in using a 15-passenger van to transport an adolescent any program transporting an adolescent in a 15-passenger van could be found negligent.

To add to the issue after the "Putting Children First" (NTSB/SR-00/02) paper the National Association of State Directors of Pupil Transportation Services issued a Position Statement

" School children should be transported in school buses which provide the highest levels of safety, not in full-sized vans or mini-vans which do not meet the stringent school bus safety standards issued by the federal government and recommended by the National Conference on School Transportation, an organization of state school transportation officials."

Authors Note: Try to picture yourself in front of a judge defending the use of a 15-passenger van when they bring in the representative from the "State Directors of Pupil Transportation Services" to act as an expert witness against the use of 15-passenger vans. If your only argument was that these were not "school children" you may have a problem.

What does Detroit have to say?

For the last few weeks I tried to contact U.S. Automakers that make 15-passenger vans the replies are as follows.

Dodge

Preston --
I have included a copy of our official statement on this issue. To summarize it, 15-passenger vans cannot be driven by someone who has does not have the experience and knowledge on how to operate these vehicles. We believe these vehicles are safe when operated properly. In reference to future changes, after this year we will no long manufacture 15-passenger vans -- it does not make "good business sense" for us based on the requirements.
E-Mail Dated - 1/30/2002

Authors Note: In talking with the lobbyist from D.C. he commented on this: "You need to ask yourself, why is Dodge walking away from the 15-passenger van market? It's not because they got tired of making vans. There just isn't any future in them."

Ford

Mr. Cline:
While I am a Public Affairs person, I have dealt with the rollover issue for quite a while. We certainly agree that it is important for a driver to be experienced, although we can't really decide that for any individual or group.

Our vehicle, the Ford Econoline is a safe vehicle to transport people when driven properly. We put the vehicle through rigorous ride and handling testing fully loaded
E-mail dated: 1/30/2002

GMC

"No Comment"

Chevrolet

"You will have to speak with our Attorney"

What is Congress Doing?

"The American Association of Classified School Employees (A.A.C.S.E.) has hired the Capitol City Group, LLC to represent our interest in Washington. The AACSE is very hopeful that HR3296, the legislation regarding the use of non-conforming vans in public schools currently in the subcommittee on Commerce, Trade, and Consumer Protection, will pass. Our lobbyist has sent a letter to Rep. Mark Udall (D-Colorado), and to all members of both the Commerce, Trade and Consumer Protection subcommittee and the Highways and Transit subcommittee asking to meet with their person who handles issues on Energy and Commerce." (http://www.jacobs-law.org/)

What are the States Doing?

The following 29 States have ruled that school districts CANNOT use non-conforming buses to transport School Children; most other states have legislation pending. In some states the legislative language uses the phrase school "age" children.

Alabama Kentucky Nebraska South Carolina
Arizona Louisiana Nevada Tennessee
Arkansas Maryland New Mexico Utah
California Michigan Oklahoma Virginia
Delaware Minnesota Oregon Washington
Florida Mississippi Pennsylvania West Virginia
Georgia Missouri Rhode Island Wyoming
Iowa
*Data from the 1997 NSTA Transportation Survey

Colorado

Thursday, April 04, 2002 - The largest insurer for Colorado schools will stop covering 15-passenger vans purchased after June and, in five years; effectively ban from most district fleets a type of vehicle that has rolled over twice here in the past 14 months. (Dever Post)

Virginia

Legislation (HB 460) was being proposed to ban the use of 15-passenger vans by schools and other organizations that transport students to school-related activities and child care centers. (This is due to a child fatality in VA, and based on "Jacobs Law" the landmark South Carolina Case) This was recently turned down due to the fact that the state did not want to hurt trade in the state.

Conclusions

It seems the NTSB, after 40 years of failing to get Congress to act is having some success with the Governors and State Courts. If South Carolina's Jacobs law is any indication this issue will be dealt with in the courts for a while until the insurance companies get tired of paying out the settlements. The reality is, however, the Post Sept 11th Insurance market is already very tight, and it won't take long for insurance companies to start denying coverage as they already have in Colorado.

As to the actual problems with the 15-passenger vans they boil down to this:

• If loaded with more then 15 people (or equivalent weight) there handling characteristics significantly change and they have a %70 greater chance of rolling over in the event of an accident.
• In the event of an accident the thing most likely to kill or injure someone is being ejected from the vehicle.
• Because the handling characteristics change, it is necessary to do a tremendous amount of training for the people who drive these vehicles. The challenge with this is that although the drivers need more experience most instructors who drive our vans are too young to gain definitive experience in short staff training. (This is not true for those larger organizations that have dedicated support staff that are typically older and more experienced driving large vehicles.)

Recommendations for small to mid size organizations that do not have dedicated drivers.

1. Make sure everyone is wearing a seatbelt.
2. If at all possible insure that the vehicles you transport students in meet the Federal Motor vehicle Safety standards as set forth in title 49.
3. If #2 is not possible move to Mini-Vans. First, they do not need to meet the FMVSS. Second, they are 40% less likely then 5 passenger vans to roll over in the event of an accident. Lastly, Brent Bell at the Harvard First Year Outdoor Program has found that because students grew up in "mini vans" they are much more likely to show up with mini-van driving experience. (Many programs have made it clear that one of the major challenges with all of this is the cost this will add to their program. A risk management director at a major organization, who leases 100-150 vehicles a year, spends almost $60,000 dollars a year in fixing vehicles that instructors ding up. It may be that when you actually run the costs of moving to smaller vehicles it is not as costly as you may think.)
4. If for whatever reason you need to continue using 15-passenger vans, I would spend some serious time rethinking your Vehicle Staff Training Protocols. Then I would get rid of the roof rack and move toward a support vehicle or trailer.

Authors Note:

• I called W. Riley Garrot of the U.S.D.O.T. National Highway Traffic Safety Administration and main Author of the Research Note: "The Rollover Propensity of 15-passenger vans". I asked him what his thoughts were on the use of roof racks and he just laughed and suggested we consider using trailers instead."
• Many universities have set the precedent of simply removing the back seat and requiring that not more then 9 people ride in a vehicle at any one time. This does NOT mean that you can now fill the back seat with gear. The point is to reduce the overall weight of the vehicle so as to not alter the handling characteristics.
• I would do your best to try to hire experienced 15-passenger van drivers and then spend at least a full day of training, if not more, on training your staff how to drive a 15-passenger van that is both fully loaded and unloaded.

Adventure Incorporated prepared this briefing for the 2002 Tri-state American Camping Association conference. The Author Preston B. Cline can be reached at:

Contact Information

Preston Cline
Adventure Incorporated
PO Box 334
Manchester, Ma 01944
978-526-7217
http://www.adventureincorporated.com/
Preston@adventureincorporated.com

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