PAMSP – Making the case for increased liability

Motorcycle training, to coin a popular movie line, “requires a unique set of skills”. Most of what we do on a motorcycle is counter-intuitive – turning at speed, maximum braking, swerving/object avoidance, hazard detection, passengers & cargo, maintenance, impairments, environment, etc. are all much different than driving a car.

Many ‘survivors’ have learned, without any formal training, how to ride a motorcycle at a basic level, to ride within their comfort zone – ill-prepared for those sudden events in which habit, and not skill, take over. Unfortunately, this lack of training & practice (practice makes permanent, not perfect) is what injures or kills many motorcyclists every year.

This year (2020), and now next (2021), PennDOT, in it’s infinite wisdom, has moved to a “3rd party” training model for the PA Motorcycle Safety Program. This means that “any” motorcycle training provider, with any curriculum, could be certified by PennDOT to train PA motorcyclists and issue them a license waiver.

PAMSP as we’ve known it for 35 years has ceased to exist. No longer a single Commonwealth-wide program with a universal curricula, centrally managed, but a fractured collection of multiple vendors, contracts, curricula and sites. No longer a single “Instructor Corps” but multiple islands of Instructors trained in different curricula, working at specific sites.

“DIY” Motorcycle Training comes to PA:

One of the Interesting things that is arising from this change is the attempt by some to create their own Motorcycle Safety curriculum. Basically, if Billy’s Bar & Grill had space, made up their own training program, submitted an RFP response & PennDOT accepted their proposal and certified them they could start training motorcyclists in Pennsylvania.

Don’t think this isn’t possible – PennDOT itself, in 2020, created its own youth training curricula as a way of getting around their statutory violation, offering no “on motorcycle” training for those under 18, just a web-based seminar and a license waiver.

If you’re not starting to think about the liabilities involved here you should start – especially if you’re thinking of training or becoming an Instructor at one of these sites.

In PA, as part of an amendment to PA Title 75, landowners supporting a PAMSP motorcycle training class are indemnified from liability. § 7911. “Motorcycle safety education program” states that landowners who authorize their property to be used for an “approved motorcycle safety program” shall not be held civilly liable.

This indemnification is limited, both within the statute as well as regarding criminal liabilities.

Intellectual Property liabilities:

It takes years to develop and test a motorcycle training curriculum. The results of that effort – and cost – is the development of legally protected Intellectual Property (IP). For those people who are currently working on their “own” motorcycle training curriculum for PA they should be prepared to be sued by 3rd party training providers for copyright infringement or other IP related breaches, especially if they are formally trained and certified by existing curricula developers/providers.

In 2008 MSF (Motorcycle Safety Foundation) settled a copyright infringement suit they had brought against Team Oregon in 2006 for Intellectual Property infringement. The suit involved an industry leader and a state program willing (able) to bring the forces of their Department of Justice to intervene – resources a private company and/or individuals won’t have at their disposal.

Process is punishment, and costly. Simply delaying, or bankrupting, a developer can be a very effective way of preventing them from teaching, as well as winning time-sensitive bids, or retaining certification to teach within a State.

Product liabilities:

Curriculum developers spend a lot of time building, testing, implementing, measuring and refining their training. They also spend a lot of money… Independent companies can be held liable for the defects in their products as can those who are teaching it, especially if they know defects exist but do nothing about them.

In 2019 an individual filed a 40 page complaint with the Consumer Product Safety Commission (CPSC) regarding deaths occurring during the MSF BRC program. This was reported on by MCN and became a point of discussion for some motorcycle trainers & students. The MSF reacted quickly, sending a message to RiderCoaches and working to stop publication of the complaint by MCN via a cease and desist order. Since then the links to the information appearing on MCN have been retired, action on the CPSC complaint has fallen into the obscurity of motorcycle training lore.

The point here isn’t to assess blame but to increase awareness that while motorcycling is an inherently dangerous sport one of the little known facts to Instructors is that students have perished during training. What they typically don’t know is how many or why as the information is not made public. What they should know – and see while Instructors – is that students do injure themselves during training.

In addition to increasing awareness of the potentials for injury and death having a complaint of any kind can damage the reputation of the developer and training provider as well as become a future downstream liability.

MSF, Total Control & other mainstream curricula develop their curricula via research & testing. They record this effort, publish and market their training based on this information, revise it as needed to address concerns. Developing you own home-grown motorcycle instruction is challenging enough – should you decide to put it into production are you ready, willing and able to deal with the potential liabilities in your “product”?

If a site, with an existing motorcycle-related business, decides to sponsor or fund the development of “training curriculum” while they may be indemnified as a site offering training they can still be exposed to product-related liabilities.

Professional liabilities:

During the “Cape Fox” years many Instructors left PAMSP citing liability concerns. Quality assurance reviews were non-existent, standards and practices were ignored, and the focus was largely on the volume of students trained (which is how vendors are paid in PA). Interesting how so few Instructors are activists in response to what is happening to PAMSP & the riding public but that’s future post material.

Many Instructors don’t consider the potential Professional (personal) liabilities they assume when training Motorcyclists. Liabilities exist – and insurance/waivers won’t always cover their actions. During training, it is reinforced multiple times on how to limit Instructor Professional liabilities so no Instructor is ignorant of this risk and how to mitigate it.

The general rule for Instructors is simple:
Adhere to the curriculum to the letter, be where you are supposed to be when you are supposed to be, don’t add or delete anything, don’t conduct any grossly negligent actions and you’ll be able to limit your exposure.

In practice, many Instructors have an approach whereby their “field derived efficiencies” developed over time they believe they can do it better & faster than the curricula developers. Many still cite “safe, effective & efficient” as justification for their actions, in some cases a mantra adopted by their training providers.

Simply put these deviations from the curricula, vendor standards & practice, training, policy & procedures all place Instructors directly in the cross-hairs for maximum professional liability, place students & Instructors at risk.

Imagine now you are teaching a curriculum prepared by a 3rd party that has no experience in training development. Not only may the curriculum have fatal flaws but it likely will not include all of the components that Instructors can follow in order to limit their liability.

None of these are covered by the indemnification in Title 75 – especially where the “landowner” is a content developer and may have civil and/or criminal liabilities.

In the digital age it’s becoming easier to search for information regarding the deaths of students during motorcycle training classes. It is important to note that students are not the only people at risk during training operations, Instructors are as well. In 2019, according to Internet accounts, an Instructor named Glenn Jones was killed while teaching a basic motorcycle class in Ashburn, VA and was struck by a student motorcycle.

If a lawsuit arises from these deaths who will be facing legal action? In this time of lawsuits seeking damages rest assured that everyone from the site to the curriculum provider/creator, training provider, their staff and Instructors will likely be named.

Compliance & Standards liabilities:

Businesses are regulated at the local, state, and federal levels. These requirements may not always be apparent but typically involve internal staff and/or external providers to ensure that regulatory compliance is being maintained. Motorcycle training is no different.

Motorcycle training should abide by the “Model National Administrative Standards for State Motorcycle Rider Training Programs” and “Model National Standards For Entry-Level Motorcycle Rider Training” published by NHTSA, the US Department of Transportation National Highway Traffic Safety Administration. NHTSA also has also developed a motorcycle safety program assessment process.

There are current training curriculum that do not abide by these national standards, which raises the question of potential liabilities that could arise. If existing programs potentially fail to meet standards compliance will any “DIY” programs comply with these standards – and will anyone even check? Ask yourself: Does Pennsylvania even require NHTSA compliance in it’s RFP?

As these compliance concerns are not readily apparent to the Instructor, and adherence to these standards may not be part of State motorcycle training program vendor acquisition, it could lead to circumstances where sites, providers and/or Instructors could be exposed to potential legal liabilities.

QA/practices liabilities:

For many single/few site motorcycle training vendors developing their own curriculum the actual training is only part of the training process. Trainers must be trained in order to teach Instructors the curriculum, policies and procedures need to be developed to manage Sites, Instructors, Trainers, etc. just to get training up and running.

For all of the people complaining incessantly about Total Control in PA, blaming them for a lack of Instructors 2019-2020, should have paid attention to Instructor attrition well before TCTI was awarded the contract & the fact that all Instructors needed to be trained in new curricula Commonwealth-wide, new trainers trained, policies & procedures created, requisite paperwork designed and published, etc. all while trying to locate, secure and put into production +70 sites across Pennsylvania.

All after years of PennDOT confusing Instructors this is the perfect teachable moment – running a program without continuity is a problem, it takes a long time to recruit Instructors, it takes a long time to train Instructors, you will have attrition of Instructors during training, it takes longer to identify and train Instructor trainers – and then you have to deal with all of the day to day issues, continuous education of Instructors, regular (annual) Quality Assurance assessments must be made – all while deficient Instructors need to be remediated, Instructor losses must be addressed (attrition, dismissal, injury, loss) across +70 sites.

QA can also identify issues with the curriculum in use – how does a vendor incorporate those needed changes in their program, at what point do they execute that, how do they train their trainers, train their Instructors and include these changes in QA processes?

“Developing” a curriculum, along with all of the other liabilities, also needs to take in to account the operation of the training site(s) using that curricula – if you lack that foundation, training, remediation, operations, quality control, etc. you’re also opening yourself up to operational liabilities, many of which won’t be covered in the site level training indemnification. “DIY” providers need to consider not just building a training program but operating it as well.

Insurance:

A frequent way companies address potential liability is via Insurance.

In industries with a high potential for injury, incapacity, death and/or the destruction of property Insurance is not an insignificant cost. As part of the risk assessment, assumption of cost an Insurance company will review the risk that your operations present vs their tolerance for that risk and their cost to provide insurance. You may be able to develop a training curriculum – but can you insure it appropriately?

How many Instructors carry personal liability insurance?

Instructors are exposed to additional liabilities even teaching for ‘mainstream’ training providers with existing curricula. Many, most, carry no additional professional liability insurance – even when they may not be aware that their organization does not supply this type of coverage for them when they are training students.

If you are working for an entity which has created it’s own curricula you will need to carefully review what their insurance covers – and if it covers you, as an Instructor (or even the developer of the content).

Post-training liabilities:

In the end motorcycle training is meant to reduce the incidents of injury and death.

In PA with a single motorcycle training standard over the last 35 years reviewing, correlating, fatalities with training has been complicated enough. Imagine now in PA where you have a mix of established, research-based training providers and “DIY” training providers at multiple sites across Pennsylvania.

Tracking motorcyclist fatalities has always been of interest as a metric relative to the potential impact of motorcycle safety training. In 2019, following the implementation of new commonwealth-wide standard curricula, PA motorcyclist fatalities dropped. After a few years in California, who has a single training vendor, saw a similar decrease in motorcyclist fatalities.

With a new training curricula Pennsylvania, in 2018, retained continuity of training – Introductory, Beginner, Intermediate, Advanced & Track Day courses for motorcyclists ensured that riders had a way to continuously train, to improve their skills – essential to reducing injuries and fatalities. In addition to this PAMSP also had the opportunity to provide 3 wheel training and Intermediate Plus motorcycle training was planned for 2020. All of these courses were consistent, part of a curriculum designed to complement & build upon other training.

Will “DIY” vendors provide only Basic training, or will they attempt to develop Intermediate and Advanced classes – in doing so will they increase risk and potential liabilities?

2019 will be the last year that Pennsylvania will have a single vendor, single curricula, a single training standard across the Commonwealth. That also means it will the last year motorcyclist fatalities can be measured against a common program standard.

Moving forward PennDOT, and motorcycle rights groups, have apparently not considered the potential liabilities to providers, staff, Instructors or students that may go undetected, be unable to be attributed, to motorcycle training providers across the Commonwealth due to the fracturing of the program, curricula.

Simply put how will PennDOT measure the effectiveness, or the risk, of each 3rd party provider across the Commonwealth? Will PennDOT interview each motorcycle accident victim to see if they took motorcycle training and if so with which vendor, consolidate that information and correlate that data? No.

In the past effectiveness of Motorcycle Safety Training in Pennsylvania has been gauged primarily by the total number of students trained. PennDOT is looking to continue this trend, regardless of the potential liabilities,it may expose riders to.

If rider fatality rates do rise in Pennsylvania following these massive changes what will the liability be to PennDOT, PAMSP and/or Pennsylvania; sites, curriculum providers, staff or Instructors – legal action by one or more plaintiffs? It’s not outside of the realm of possibility.

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