Because Houston Metro is operated by the Transit Authority of Harris County, Texas, claims against it are capped under the Texas Tort Claims Act. Judicial interpretation of the act (scroll to I.B.7) has resulted in a $100,000 cap on the damages payable in a death caused by the actions of an employee of the State or one of its political subdivisions. Metro, as an arm of Harris County, is sheltered by the cap. If it weren't it might by now be out of business, given its track record.
Jeffrey Kao's widow, Loan-Anh Tran Kao, has since November 2004 publicized the case through a statement at a website, which links to an on-line petition addressed to the Texas State Legislature. Ms. Kao closes her statement by saying:
After Jeff's accident, for the first time in my life, I felt powerless. I wanted to empower myself. I did not know where to start. I had been told time and time again that any efforts to force METRO to be held accountable for its actions would be futile and that the prudent action was to accept the $100,000 liability limit. However, I refused to believe that an entity set up to serve the public and funded by the public is not and cannot be held accountable to the public. Thus, I am doing the only thing I know to do right now and that is to work to change a law that makes METRO value a person's life at only $100,000. This limit was established in 1973, was not indexed for inflation or cost of living and has not been changed since 1973. It is time for a change.In the petition she adds:
I cannot undo the damage that has been inflicted upon my family. I can, however, with your help, make sure that, to the extent humanly possible, no one else will have to lose a love one. Metro must be held accountable for not putting safety first. Metro should not be protected by a $100,000 liability cap when it does not put safety first.The $100,000 cap would be $330,000 if inflated to keep pace with the rise in the CPI since 1973. That's not much money for a life. Removal of the cap makes more sense, from a claimant's point of view. And that's exactly what a Texas legislator has proposed.
On March 16, 2005, State Rep. Corbin Van Arsdale (R-Houston), placed before the Texas House of Representatives a bill (H.B. No. 2588) that would, among other things, remove the cap on the damages for which a political subdivision of the State of Texas may be liable:
(b) Notwithstanding any other law, sovereign immunity of a political subdivision described by Sections 101.001(3)(B) and (C) to suit and from liability is waived, and the political subdivision is liable to a claimant to the same extent as a private person according to Texas law.The bill is still in committee, and the Texas Legislature has adjourned until 2007. (Gov. Rick Perry has called a special session, but that session will focus on public-school finance.) Perhaps the Legislature will take up the bill two years from now. If it does, my heart wants the bill to become law, for the sake of Ms. Kao and other victims of negligence by public employees. My mind tells me that the removal of the cap would harm the taxpayers of Texas, with little effect on the behavior of public employees. My libertarianism tells me that there must be a way to save lives and taxpayers' money.
I'm entirely in sympathy with anyone who has suffered at the hands of a negligent person or entity -- especially a government entity that is able to evade the consequences of its negligence by hiding behind its shield of sovereign immunity. After all, the true sovereign in the United States is -- or is supposed to be -- the people, not government. That's the best argument for removing the shield of sovereign immunity from all political subdivisions of the State of Texas, not to mention all political entities in the United States. But...
Tort lawyers and irresponsible juries are (unwittingly) working hand-in-glove with tax-spend-and-regulate governments (federal, State, and local) to drive the American economy to its knees. Taking the lid off tort claims may seem just when viewed in the context of a particular case, but it could have dire long-term consequences for the taxpayers of Texas, and other States.
Why should we expect government employees to be any less negligent just because a change in the law uncaps tort claims against government entities? If criminal prosecutions won't deter negligence, nothing will. Government employees can and will continue to act irresponsibly because their bosses -- unlike the owners of private businesses -- have no bottom-line incentive to enforce responsible behavior. After all, who will end up paying the claims allowed by a change in the law? Not government employees or their bosses. No sir, tort lawyers will go where the money is: in the pockets of taxpayers.
The real, long-term solution to the twin problems of negligence and liability is to get government out of the transit business -- and all the other businesses that it's in, namely, providing roads, schools, recreation, health care, social services, etc. Government, at all levels, should focus on its few legitimate lines of work, principally, defense and criminal justice.
But let's start with the transit business. If transit systems were truly private -- neither operated by a government entity nor in an agency relationship with a government entity -- there'd be no cap on claims and the cost of claims would be passed on to users of the system, not to taxpayers (as taxpayers). The right course of action for the Texas legislature isn't to remove the cap on liability claims but to remove the counties and cities of Texas from the transit business.
It says on Houston Metro's own website that the "Texas State Legislature authorized the creation of local transit authorities in 1973." Well, that was back in the bad old days when "socially responsible" Democrats controlled the Texas legislature. It seems to me that the current, Republican-controlled legislature should do the Republican thing and order the privatization of local transit systems in Texas.
That would accomplish three things at a stroke:
1. There'd be no cap on damages caused by negligent government employees.
2. There'd be a compelling (profit) incentive to ensure the safe operation of transit vehicles. For example, in 2004 the U.S. Postal Service's motor-vehicle accident rate was 10.4 per million miles (see p. 12), whereas UPS's rate was less than one accident per million miles.
3. The users of transit systems would pay for those systems -- not the general public. (The users might cry "unfair" because of the existence of "free" public roads, but that's changing in Texas.)
Houston Metro's total operating expense in fiscal year 2003 was $395.6 million (including depreciation and amortization). Fares covered only $47.3 million (12 percent) of that total. The deficit was covered by sales taxes collected by the city and county on behalf of the transit authority. In other words, many taxpayers who don't ride Metro subsidize those who do. And taxpayers who do ride Metro are simply subsidizing themselves. There's no such thing as a free ride.
That's not to say private entities couldn't be lured into the business, if they were allowed to raise fares and eliminate unprofitable routes. A Houstonite who absolutely can't bear the thought of paying for his own commute can always move to Los Angeles, a.k.a. Houston-on-the-Pacific.
So here's my suggestion for the Texas State Legislature:
1. Remove the liability cap, as proposed by Rep. Van Arsdale.
2. Rescind the statutory authority for public transit systems and set a date certain for privatization.
3. Require municipalities to contract-out their transit systems during the transition period. That transition period would enable contractors to test the market to determine the most profitable combination of routes, schedules, and fares. The transition period also would give transit riders and entrepreneurs time to test and implement alternatives, such as carpooling, commercial van services, etc.
4. Municipalities would be required to contract-out to several operators, whose territories would overlap in high-density areas, to encourage competition.
5. The operators would acquire public-transit facilities and equipment through long-term lease-purchase arrangements at favorable terms. (After all, an asset that produces negative earnings is worthless to its owner -- taxpayers, in this case.)
The privatization of transit systems in Texas might start a trend toward the privatization of other government-run businesses that aren't properly the business of government.
If it did nothing else, privatization would reduce incidents of lethal negligence and keep tort lawyers out of taxpayers' pockets.
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