Pastor, Church & Law

§ 10.20

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Key point. Many churches own 15-passenger vans, and most use them exclusively to transport children and adults on church-approved trips. These vans are designed to transport cargo, not people, and that they lack the many safety features required of school buses. The safety of these vans has been questioned by several "safety advisories" issued by the National Highway Transportation Safety Administration (NHTSA). This advisory warns that the "rollover" rate of 15-passenger vans increases nearly seven times when they are driven with more than 15 occupants. The rollover rate is three times greater for 15-passenger vans with 10 or more occupants than for vans with less than 10 occupants. Churches should consult with legal counsel before using such vehicles.

You don't have to drive very far before encountering a 15-passenger van. The federal government estimates that there are 500,000 of them in use. They are everywhere, and the reason is simple—they are relatively cheap and they can carry a lot of people. Many churches own one or more of these vans, and use them for multiple purposes including the transportation of minors to local or out-of-town church activities or the transportation of adults to church services. Some churches use 15-passenger vans to provide transportation to children who attend a church-operated preschool or "after school" program.

The use of 15-passenger vans by churches raises a number of important legal concerns that church leaders must carefully consider. This section addresses three of those concerns: (1) the relevance of the recent NHTSA safety advisory that documents the dramatically increased rollover risk associated with fully occupied 15-passenger vans; (2) the possible application of federal and state "school bus" regulations to the use of 15-passenger vans by churches; and (3) interstate trips.

1. NHTSA Safety Advisories

Many 15-passenger vans carrying passengers have been involved in horrific accidents resulting in death or serious injury to occupants. In response, the National Highway Traffic Safety Administration (NHTSA) investigated several of these accidents, and in April of 2001 issued a rare "consumer advisory" regarding an increased rollover risk for 15-passenger vans under certain conditions. The advisory concludes that 15-passenger vans with more than 9 occupants have a rollover rate in single vehicle crashes that is nearly three times the rate of vans with fewer than 10 occupants. Since 2001 the NHTSA has taken the unprecedented step of reissuing its safety advisory on three additional occasions, in part due to "several tragic rollover crashes involving religious groups on trips." The NHTSA has issued several similar safety advisories since 2001. The current NHTSA website lists the following nine safety recommendations:

• Experience: Fifteen-passenger vans should only be operated by experienced drivers to provide the safest environment for the driver and the passengers. An experienced driver is someone who operates these vehicles on a regular or semi-regular basis. Having experience driving 15-passenger vans is imperative because these vehicles handle differently than passenger cars, especially when fully loaded. The driver should possess a valid driver's license for his/her State of residence (a commercial driver's license is preferred).

• Attention: The driver should be well-rested and attentive to driving at all times. Cell phone use by the driver while the van is in motion is illegal in certain States. The driver should also limit conversation with other passengers, and drive time should be limited to 8 hours per 24-hour period.

• Speed: Drive at a safe speed based on driving conditions. The driver should never exceed the posted speed limit. Always slow down if the roads are wet or icy; 15-passenger vans do not respond well to abrupt steering maneuvers and require additional braking time.

• Seat Belts: All occupants need to wear seat belts at all times. Inspect seat belts regularly and replace any missing, broken or damaged belts and/or buckles. An unrestrained 15-passenger-van occupant involved in a single-vehicle crash is approximately four times more likely to be killed than a restrained occupant (FARS 2007-2016 files).

• Tire Pressure: Inspect the tires and check tire pressure before each use. A van's tires, including the spare tire, need to be properly inflated and the tread should not be worn down. Excessively worn or improperly inflated tires can lead to a loss of vehicle control and possibly a rollover. Pressure for front and back tires may be different, and pressure is likely higher than that required for car tires. A placard on the driver's side door pillar or the owner's manual lists manufacturer recommended tire size and pressure.

• Spares: Avoid using old spares when replacing worn tires since all tires, even unused tires, weaken with age. Used 15-passenger vans may come with new-looking spare tires that are many years old and could be dangerous. Owners should follow manufacturer guidance on when to replace tires, including your spare. Learn how to determine the age of your tires.

• Occupancy: Never allow more than 15 people to ride in a 15-passenger van. When the van is not full, passengers should sit in seats that are in front of the rear axle.

• Cargo: Cargo should be placed forward of the rear axle; avoid overloading the van or placing any loads on the roof. See the vehicle owner's manual for maximum weight of passengers and cargo and to determine towing capability.

• Size: A 15-passenger van is substantially longer and wider than a car, and thus requires more space to maneuver. It also requires additional reliance on the side-view mirrors for changing lanes.

Some churches remove the back seat of their 15-passenger van in order to meet the NHTSA's "no more than 9 occupants" recommendation, but then load the empty space with luggage, equipment, or other items. Such an arrangement does not work in most cases, since the problem is weight and replacing people with equipment or luggage fails to address the underlying problem.

While not mentioned directly in the NHTSA recommendation, the safety problems associated with 15-passeger vans are compounded when towing trailers.

Any church or ministry that continues to use a 15-passenger van following four NHTSA safety advisories is assuming an enormous risk of liability in addition to the risk such vehicles pose to human life. If one or more occupants are seriously injured or killed, a court might well conclude that the use of a 15-passenger van was negligent. But, it is also possible that a court would conclude that the ministry, and its governing board, were "grossly negligent" as a result of their disregard of the NHTSA safety advisories and their recommendations. A finding of gross negligence is very serious since it would expose the ministry to "punitive damages" that are not covered under its liability insurance policy. In addition, the members of the board could be personally liable for their gross negligence. While state and federal laws provide uncompensated board members of nonprofit organizations with limited immunity from liability, these laws do not protect against gross negligence.

In summary, churches and other ministries have the following options:

First, continue to use 15-passenger vans but strictly comply with all 10 recommendations made in the NHTSA safety advisories quoted above. If continual compliance with all 10 recommendations cannot be guaranteed, without any exceptions, then this option must not be considered. In most cases, such an assurance will not be possible. In the rare case that continuous compliance with the 10 recommendations can be assured, then this will provide churches with a defense to liability in the event of an accident. The defense may not be successful, but it at least can be made. Note that the very first recommendation is that the van never contain more than 9 occupants.

Second, sell all 15-passenger vans and replace them with smaller vans or "small school buses." Small school buses are the safest form of transportation. While the initial cost of a new "small school bus" is slightly higher than a fully equipped 15-passenger van, the cost of operation is less expensive because buses are more reliable and have longer useful lives.

Third, rent a vehicle other than a 15-passenger van.

Fourth, use a commercial carrier to provide transportation services.

The second, third, or fourth options should be selected in any of the following five situations:

(1) A church cannot obtain insurance for a 15-passenger van.

(2) A church uses a 15-passenger van on a regular basis to transport school children (preschool through high school) to or from school or any school-related activity. In such a case, the van may be considered a nonconforming "school bus." While it is still legal to use nonconforming school buses in most states, there is legislation pending in Congress as well as in many state legislatures to change this. Further, even if the use of a nonconforming school bus does not violate state or federal law, such use may result in liability. The largest personal injury verdict in the history of one state resulted from the death of a student in a nonconforming school bus operated by a church.

(3) A church wants to reduce the risk of death, injury, and liability (including uninsurable punitive damages, and personal liability for board members who authorize or allow the use of 15 passenger vans).

(4) A church wants to send a message that it values human life.

(5) Continuous compliance with the nine safety recommendations contained in the NHTSA safety advisories cannot be guaranteed.

An advantage of the second option is public image. Increasingly, the public is becoming aware of the risks associated with 15-passenger vans. When people see a small school bus operated by a church, many will say, "There is a church that takes the safety of human beings seriously." It really sends a positive message. On the other hand, when people see 15-passenger vans being operated by churches and other ministries, many will have the opposite reaction.

2. School Bus Regulations

(1) background

In 1966 Congress enacted the National Traffic and Motor Vehicle Safety Act mandating that new cars sold in the United States adhere to federal safety standards. The Act was amended in 1974 (the School Bus Safety Amendment) to prohibit "dealers" from selling or leasing new "school buses" that do not meet stringent federal standards. The 1974 amendment defines a "school bus" as any bus or van with a seating capacity of 11 or more persons that is "used significantly" to transport "preprimary, primary, and secondary school students" to or from school or school-related events. The term school includes all preprimary, primary and secondary schools, including private and parochial schools.

Federal school bus standards include minimum performance requirements for (1) emergency exits; (2) interior protection for occupants; (3) floor strength; (4) seating systems; (5) crashworthiness of body and frame (including protection against rollover hazards); (6) vehicle operating systems; (7) windows and windshields; and (8) fuel systems. These standards have been dramatically successful in reducing school bus accidents. According to data compiled by the National Highway Traffic Safety Adminsitration (NHTSA), there are now fewer than 10 school bus passenger fatalities per year out of 10 billion student trips! The NHTSA concludes that traveling in a school bus that conforms to the federal standards is the safest mode of travel—even safer than air travel.

Unfortunately, there are loopholes in the federal school bus law. It does not apply to the sale of used school buses, and only prohibits dealers from selling buses or vans that meet the definition of a "school bus" and that do not comply with the federal standards. Some dealers continue to sell new vans to schools even though they are "nonconforming."

(2) state law

Several states prohibit the use of "school buses" to transport children to or from school that do not comply with the federal standards (i.e., "nonconforming" buses). Similar legislation is pending in several other states. These state laws close a major loophole in federal law (which merely prohibits dealers from selling or renting new school buses rather than prohibiting schools from using them).

(3) can a church van be a school bus?

In most cases, churches that purchase 15-passenger vans do not use them "significantly" to transport children to or from school. As a result, the vans do not meet the definition of a "school bus" and churches have little difficulty persuading a dealer to sell them a van. However, this will not always be the case.

Key point. The biggest personal injury verdict in one state's history was awarded against a church school in a case involving the death of a child who was riding in a nonconforming 15-passenger van when it rolled over and killed him.

3. Interstate Trips

Under federal regulations that took effect in 1995, church buses and vans that are designed to transport more than 15 passengers (including the driver) and that are used to transport passengers across state lines must meet strict safety requirements. These requirements are entirely separate from the school bus regulations discussed earlier in this section, and apply whether or not a vehicle is a "school bus." In general, these rules do not apply to 15-passenger vans.