Party bus was operating illegally at time of fatal fall

10/29/2013 9:09 PM

08/06/2014 8:50 AM

A rolling bachelorette party had just gotten underway two weeks ago when the bus hit a bump rounding a curve, double doors flew open and passenger Jamie Frecks tumbled to her death beneath Interstate 35 traffic.

Frecks and her 16 friends might never have climbed aboard had they known:

• The Midnight Express party bus was operating illegally. It did not have a U.S. Department of Transportation number, which Kansas law requires, according to an investigation by The Kansas City Star.
• The vehicle’s “door ajar” warning system wasn’t working for the doors that popped open, sources close to the investigation say. Before passengers embarked, coolers were loaded onto the bus through those doors.
• Wheelchair-loading equipment — which could have blocked Frecks’ fall — had been removed from just inside those doors on the 14-year-old van.
• The owners had not obtained a business license in Kansas City, Kan., where the accident happened, or in other area cities checked by The Star, according to officials in those cities.

Had the van been registered, as required, DOT regulations would have triggered vehicle inspections, which might have caught any safety issues with the van’s various doors or its door-ajar warning system.

“It’s appalling this vehicle was permitted to operate for two years,” said Jim Hall, a transportation safety consultant and former chairman of the National Transportation Safety Board.

“If there had been any inspection of this vehicle, it certainly should never have passed.”

The Kansas Highway Patrol and federal transportation officials are investigating the accident. The patrol is sharing its findings with Wyandotte County prosecutors, who will decide whether criminal charges are warranted.

Just days ago, California authorities accused a Santa Cruz party bus owner of “gross negligence” and arrested him on involuntary manslaughter charges in connection with the 2012 death of a passenger who fell out the bus doors.

Nearly everyone involved in the Kansas City case has turned to lawyers for advice.

The three principal owners of Midnight Express have declined through their attorney, Jim Cramer, to comment on The Star’s findings or anything related to the accident, other than to express the company’s “sincere sympathy” to those involved.

“They have been cooperating and will continue to cooperate fully with the investigating authorities to find out what may have caused this accident,” Cramer said in a written statement.

State incorporation papers list the three principal owners as Adam Breidenthal and Derrick Hansroth of Bonner Springs and Edward Goetz of Leavenworth.

An attorney representing the company’s insurance carrier did not respond to requests from The Star seeking comment.

An attorney for the 49-year-old bus driver, Deborah S. Elmer, who had the proper license to operate the vehicle and transport passengers, said he would not comment while he awaits the Highway Patrol’s findings.

“She is absolutely devastated by the fact that somebody died,” said the attorney, John Duma.

Frecks’ family has hired attorney Lynn Johnson to represent her infant daughter and her parents.

“We are just starting our investigation into who’s responsible for this tragedy,” Johnson said.

Even the passengers have obtained legal advice. Their attorney, Susan Dill, provided details to The Star about the accident on their behalf.

According to Dill, some of the women had just finished a barbecue at the Merriam home of the bride-to-be. The entire group then met the bus at another location to head to Westport.

The double doors on the passenger side of the van near the rear, from which Frecks fell, were opened to allow the loading of coolers.

The group soon stopped at a QuikTrip to get ice, which was taken on through the passenger door near the front of the bus, Dill said.

Although beer was served at the barbecue, no one on the bus was drunk, Dill said. They had been aboard for only about 10 minutes, she said, when the incident occurred on northbound I-35 near the Southwest Boulevard exit. And no one saw any rider touch the doors during the trip, she said.

Frecks and two other women were standing with their backs to the rear double doors when the bus hit a bump as it rounded a curve, Dill said. The doors popped open. Frecks fell out backward.

At least three vehicles hit Frecks, a 26-year-old new mother, according to the Highway Patrol. Only one driver stopped. One other driver later came forward and talked to investigators.

“It’s surprising to me that no one in local or state law enforcement had noticed the lack of a DOT number on this vehicle,” Hall said. “It should have come to their attention.

“This, unfortunately, sounds like an accident waiting to happen.”

Federal oversight

To obtain a Department of Transportation number, an operator must carry proper insurance and meet safety requirements.

An operator must “systematically inspect, repair and maintain” its vehicles and maintain those records for review by regulators. Operators’ vehicles also are subject to spot inspections.

Operators also are required to inspect emergency exits and push-out windows every 90 days, according to the federal regulations.

Because the Midnight Express party bus did not have a DOT number, there is no way to confirm whether any such inspections ever occurred. In fact — at least until the May 4 accident that killed Frecks — state and federal officials had no way of knowing the party bus even existed.

The bus owner, a Kansas company called Midnight Express LLC, does not show up in federal DOT records, according to a search of the department’s online database and confirmation from a department spokesman.

Capt. Chris Turner, commander of the Kansas Highway Patrol’s Motor Carrier Safety Assistance Program, declined to discuss the bus specifically or the patrol’s ongoing investigation. But he confirmed that all such carriers are required by the state to obtain a federal DOT operating number.

It is hard to say what the penalty would be for such a failure, Turner said, but police probably would issue a ticket for a first infraction that likely would lead to a fine. If investigators determine that there is a violation of federal law, the DOT can assess fines of $25,000 or more.

Two of the company’s three owners listed on incorporation papers also operate a lawn and landscaping business that has a DOT number, according to the federal database. But the rules would “absolutely not” allow them to operate the passenger vehicle with that DOT number, according to a spokesman for the Federal Motor Carrier Safety Administration.

“Passenger carrier authority is distinct and different,” said Duane DeBruyne of the agency.

DOT regulations also require a passenger operator to maintain a minimum amount of insurance coverage. The amount depends on the vehicle’s seating capacity. A vehicle with a seating capacity of 16 or more needs $5 million in coverage, according to the regulations.

It’s unclear whether Midnight Express had the proper insurance coverage. Neither the company nor its insurance carrier would answer questions.

The double doors

The double-door opening through which Frecks fell did not constitute an emergency exit.

Nor was it a regular passenger entryway.

There were no steps leading to the doors, which were built to accommodate an electric wheelchair lift.

As designed, the doors were meant to be opened only from the outside by the driver. The lift was stored upright just inside the doors. It would be lowered from the floor level of the van to the ground, about two feet below.

A wheelchair would then be loaded onto the lift, which would be raised, allowing the chair to be rolled onto the van’s floor.

In the unused position, the lift provided a sturdy metal barrier just inside the double doors that could have prevented someone from falling into or tumbling out the doors.

But after purchasing the van, the Midnight Express owners repainted and renovated it — and removed the lift, according to investigators and documents and photographs obtained by The Star.

Turner, of the Highway Patrol, said modifications made to commercial passenger vehicles are required to meet certain specifications, showing, for example, that those modifications were performed by a mechanic and reflected on an updated identification plate somewhere on the vehicle chassis.

It is unclear whether the wheelchair-lift removal would have been covered by those rules, or whether the vehicle’s identification plates had been updated to reflect that modification.

An alarm system meant to warn the driver if the back double doors were not closed properly and latched was inoperable at the time Frecks tumbled through them, investigators confirmed.

“I am sure they are trying to find out whether in fact the door was closed, whether it had a defective latch or whether the doors were not closed properly,” Hall said.

Breidenthal, one of the organizers of Midnight Express LLC, registered the Ford E-450 Super Duty RV with the Kansas Department of Revenue in February 2010, according to state records.

It had been a 14-passenger bus coach with a front passenger door, windows, emergency window exits and the side double doors near the back for wheelchair access.

According to the van’s vehicle identification number, it was purchased at auction from the city of Fort Scott, Kan., in January 2010 for about $2,000. A disclosure statement noted it had more than 105,000 miles on the odometer, a bad battery, a broken ignition switch, engine problems, worn tires and a transmission that needed to be rebuilt.

Fort Scott had acquired the bus from the city of Topeka as part of an intercity vehicle swap.

Business license?

Most area cities require a license for companies doing business within their city limits.

According to state records, Midnight Express was affiliated with addresses or post office boxes in Olathe, Shawnee and Bonner Springs.

The company was not licensed in any of those cities, according to a check by The Star.

On its website, which has since been taken down, Midnight Express called itself a Kansas City, Kan., transportation company. It was not licensed there either.

“Who knows where they operate from at the moment,” said Phillip Henderson, license administrator for the Unified Government of Wyandotte County and Kansas City, Kan.

Penalties for not obtaining a license vary by jurisdiction and can depend on how much the company earns.

Party bus deaths

Across the United States, at least four other party bus riders have fallen or jumped to their deaths since 2010.

In addition to the California case, similar deaths have been reported in Oregon, Michigan and Minnesota.

In one case, an 11-year-old girl suffered fatal injuries when she fell out an unlocked emergency window as the bus turned a corner. In another case, a man fell to his death after hitting a door’s emergency lever. A second passenger who fell out with him survived.

Incidents among various types of passenger buses have drawn the attention of federal officials. Earlier this year, the U.S. Department of Transportation announced a crackdown on what they call high-risk bus companies and dispatched inspectors and auditors to investigate them.

“We’ve seen the tragic consequences when motorcoach companies cut corners and do not make safety a top priority,” said DOT Secretary Ray LaHood in a news release. “With this goal at the top of our priorities, we can continue to raise the safety bar for the entire industry.”

The number of party buses and limos operating in Kansas City has grown considerably since the first party bus hit the streets in 1997.

In the wake of the incident that killed Frecks, The Star identified 25 area companies that advertise decked-out buses and limos for all manner of group revelry, from prom night to bachelor and bachelorette celebrations. Consumers can check to see if bus and limo companies are registered at a federal government website at safer.fmcsa.dot.gov/companysnapshot.aspx.

Midnight Express was the only company The Star found that did not have a corresponding DOT number in the federal database. But a handful of the other companies were listed as not authorized to transport passengers. The records do not specify reasons for listing that status.

When reached by phone, two of those companies said they did not know why they would be listed that way because they follow all regulations and were recently inspected. One company listed as not authorized is now operating under a different corporate name. The company is in compliance under that name, the federal database shows.

A person who answered the phone at a fourth company listed as not authorized said, “I’m not going to talk to you,” when a reporter identified himself.

Kirt Snow of Kansas City Party Bus says it’s an industry that provides a valuable service.

But it requires a great deal of work to comply with the insurance and maintenance requirements to operate a business legally.

“A lot of people don’t know what they’re getting into,” he said. “People think it’s just as easy as buying a school bus, turning the seats sideways and calling it a party bus.”

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