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Run Over by Metro

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For her, it's not about the money. It's about forcing Metro to face consequences.

"Jeff was my soul mate," says his widow, who met her husband when they were both freshmen at Rice University. "To me, he was everything. To Metro, he was only a number."

Metro loves numbers.

In October 2003, the authority issued a sunny press release that began: "Proving that safety remains METRO's No. 1 priority, the transit authority has broken its annual safety record two years in a row by logging 0.89 accidents per 100,000 miles in Fiscal Year 2003."

Metro executives didn't don their party hats for long.

One week later, Jeffrey Kao was killed. Four weeks after Kao's death, a Metro bus struck again.

Just before 9 a.m. on December 3, 2003, a 60-foot-long, 22-ton double-bus knocked 47-year-old certified public accountant Carol Donnelly to the ground and crushed her beneath its left-front tire as she was midway through the intersection of Smith and St. Joseph Parkway downtown.

"The driver never saw her even after he hit her," says Dwayne Newton, an attorney who represents the Donnelly family. "She was dragged for 40 feet, until other pedestrians literally got in front and stopped the bus."

The City of Houston may bear some responsibility for Donnelly's death. The pedestrian signal at her crosswalk did not work despite 14 complaints made to the Department of Public Works and Engineering that year.

Kao and Donnelly were struck by Metro buses a half-mile apart. But the bus that killed Donnelly was operated by a First Transit driver. Since there is no damage cap for a subcontracting company in Houston, the Donnelly family wasn't forced to settle for a measly $100,000. They're seeking millions in restitution. The trial is set to begin next month.

There's another important difference between the two fatal accidents. The Metro driver who hit Kao was fired and later convicted of a felony. Samuel Rivers, on the other hand, didn't just escape indictment. He still drives buses for First Transit.

Rivers could never boast a sterling driving record. In 1992, he spent four days in jail and paid a $500 fine for driving with a suspended license. In 1997, he was charged with reckless driving. In the months leading up to Donnelly's death, Rivers was involved in at least two other crashes while operating a Metro bus, according to First Transit accident reports.

Burleson, the union president, says Metro has a reputation for axing drivers first and asking questions later. During the last couple of years, she says, Metro terminated seven drivers for causing accidents. In each case, she says, the driver filed a grievance and eventually regained his job with full back pay.

First Transit employs a kinder, gentler approach.

For instance, in May 2001, First Transit driver Clifford Wayne Kidd rear-ended a car stuck in traffic, killing nine-year-old Jennifer Rodriguez (see "Life Interrupted").

First Transit provided the Rodriguez family a $10 million settlement after it was revealed that Kidd lacked prior experience driving a commercial passenger bus. Kidd had lied repeatedly on his employment application.

And yet, after the fatal accident, First Transit promoted Kidd to a nondriving supervisory position.

Why does Metro continue to reward First Transit multimillion-dollar contracts?

"It's all about the money," says Allen. "Metro didn't have to pay the Rodriguez family $10 million; First Transit did. Metro's attitude is 'Oh, well, the skin's off their nose, not ours.' "

To recap: If a First Transit driver causes a fatal accident, the private company may be forced to dole out millions to the grieving family. Metro pays nothing. And when it's a Metro driver doing the killing, the authority only has to fork over a maximum amount of $100,000, which hardly dents its $273 million annual operating budget.

"Metro is not being held accountable," says Houston attorney Richard Mithoff, who represented the Rodriguez family, "and there's no incentive for them to improve."

The Chronicle has frequently reported that Metro's contract with First Transit saves it $5 million a year, mostly through lower wages. But there's another way Metro capitalizes on use of the private company.

Written into Metro's contract with First Transit is a section called Liquidated Damages, defined as fees assessed "if the contractor fails to comply with certain minimum performance standards." The contract spells out the types of infractions and their corresponding fees, which at first glance wouldn't seem to amount to much.

For instance: If a First Transit driver doesn't have a valid Texas driver's license, Metro deducts $25. If a First Transit driver operates a bus that is unclean or has a damaged seat, Metro docks $50. If a First Transit driver misses a trip, Metro is compensated for each trip plus $100. And so on...

"It's not a penalty," insists Jim Laughlin, Metro director of transportation programs. "It's a deduction of money for services not rendered."

However Metro spins it, First Transit's incompetence has not only made Houston's streets more dangerous. It has also saved Metro a bundle.

The Press requested a list of all liquidated damages reported since First Transit's contract began, and discovered that it's not at all uncommon for Metro to deduct tens of thousands of dollars each month for the abuses listed above. Altogether, assessing liquidated damages has saved Metro more than $1.2 million from January 1997 to the present.

Metro saves itself additional money by nickel-and-diming its victims.

Federal and state safety regulations require Metro to keep investigation files for all accidents that result in injury or death. These files comprise police reports, witness statements, insurance claims, medical expenses and, if necessary, legal documents and autopsy reports. The files are often several inches thick.

While examining more than a dozen investigation files, the Press discovered internal memos and e-mails circulated among Metro attorneys and claims adjusters who negotiate settlements with victims and their families. These documents offer a revealing insider's look into how Metro treats its victims and the factors it weighs when determining how families should be compensated.

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