The Wheels Keep on Turning: Bus Driver Defeats Forfeiture Defense

Today’s decision is a victory for our Delaware public transit drivers who day-in and day-out deal with unruly passengers!

In Liriano v. DART, the issue before the Industrial Accident Board was whether a DART bus driver forfeited his right to workers’ compensation when he was involved in an altercation with an inebriated customer under 19 Del. C. 2353(b).

DART argued that while the Claimant was in the course and scope of his employment as a bus driver, he was the first aggressor, and therefore, his actions amounted to a reckless indifference danger and/or a willful intention to bring about his injury. In response, the Claimant argued that the intoxicated customer’s physical and verbal conduct initiated the confrontation causing Claimant to fear for his safety and react in self-defense.

Critical to the evidence presented was:

• Video footage depicting the claimant’s interaction with the customer before, during, and after the altercation;

• Assistant Safety & Security Manager for DART’s testimony that DART trains its drivers to walk away/retreat from conflict and it is acceptable to respond physically only when acting in self-defense, and in his opinion, the Claimant was the aggressor here

• Claimant’s testimony that:

  • the customer was intoxicated, bumping into him, cursing, and repeatedly asking about bus times

  • he asked the customer to give him some space while putting his hands up in a non-aggressive manner, which the customer did not do

  • he felt the customer’s body language compelled self defense after the man started chest bumping him and became more threatening, and he pushed him away

  • he felt he could not retreat safely to the bus given the amount of time it takes to close the door and felt it would not be safe to corner himself into a smaller space

  • Dart did not discipline or reprimand him for this incident despite its workplace violence directives

• DART Co-Employee/Witness’s testimony that he interacted with the intoxicated customer just before the altercation and the man touched him several times and he had to shove him away, AND he would have taken the same action as Claimant had he been in his shoes

Off the bat, the Board noted it did not view the video as narrated by the Employer in its case in chief. The Board found the video consistent with Claimant’s testimony that he moved back several times from the man with his hands raised in a non-aggressive manner, and when the Claimant attempted to walk towards the bus, the man followed him and intensified the conflict, stepping into Claimant’s chest in a threatening physical posture. The Board noted that “[W]hile true that Claimant threw the first blow, so to speak, in the form of a push, the unknown male was unrelenting and continued to charge back towards Claimant suggesting that some measure of self-defense was warranted in a situation where there did not appear to be a safe location for timely retreat.” Further, the Board found it noteworthy that the fact that Claimant was not disciplined for misconduct or violation of the workplace violence policy as a result of this incident, thereby suggested DART found Claimant acted in self-defense.

To be honest, I thought this could have gone either way depending on how the Board assessed the credibility of the claimant compared to what the video showed. I give major kudos to my client for his calm and respectful demeanor throughout the hearing, especially on cross-examination.

On a personal note, today marks less than 100 days until I get married in Newport, RI!

Best,

Caroline A. Kaminski