CHP Blames Trash Truck Driver, Boss in Boys’ Deaths

California Highway Patrol investigators of the malfunctioning of a city trash truck that killed two 8-year-olds in a school bus last December contend in a report released Friday that both the truck’s driver and a city maintenance supervisor should face numerous criminal charges, including involuntary manslaughter.

The district attorney’s office, however, filed only one misdemeanor count in the case.

The long-awaited report from the CHP suggests that driver Kenneth Wayne Fox deserves the bulk of the blame for the fatal crash, but names supervisor David Walker Wear as an “associated factor” in the collision for failing to keep the faulty vehicle off the streets even though the previous day’s driver had flagged it for repair.

The boys were killed when the truck’s automatic packing mechanism broke, sending a 12-foot hydraulic piston bursting through the steel side of the truck and slicing into the windows of the school bus.

Based on 67 interviews, extensive review of city records and physical inspection of the two vehicles, the 204-page CHP report also reveals new details.

It says the CHP believes Fox drove with the hydraulic piston sticking out of the truck for about 1,650 feet--about 40 to 60 seconds--before the crash.

It quoted witnesses who reported seeing Fox wearing headphones and bouncing in the driver’s seat. It said several people, including the driver of the bus, honked their horns and waved at Fox in an effort to alert him to the protruding arm.

And it said the two young victims--Francisco Mata and Brian Serrano, best friends at Glen Alta Elementary School--were sleeping when the hydraulic piston burst through the windows of the bus and killed them. Other elementary school children on the bus described an earthquake-like crash, flying glass and, in the case of one boy, feeling the body of a friend slump down on him.

“This traffic collision and the resulting fatalities and injuries are a direct result of Driver K. Fox driving Vehicle No. 1 in violation . . . of the California Vehicle Code,” the report concludes. “If Driver K. Fox would have properly inspected the packer assembly . . . he should have seen that the packer blade was not functioning properly.”

Fox now faces one criminal charge of failing to properly inspect his vehicle before starting his route, a misdemeanor, although the CHP had requested that he and Wear both be charged with involuntary manslaughter. Deputy Dist. Atty. John Morris, who is handling the case, was off Friday and could not be reached for comment, but his supervisor, Robert Schirn, said he simply did not think more serious charges would stick.

“The proof to show someone’s guilty of manslaughter has to involve the facts that the acts committed were foreseeable,” Schirn said. “To me, there’s a crucial inability to prove that criminal element.”

In a legal analysis of the case released Friday, Deputy Dist. Atty. David Traum agreed.

“There is no evidence to warrant prosecution of Wear,” Traum wrote. “Wear’s failure to remove the truck from the list of vehicles to be used . . . was the result of inattention, not the aggravated or reckless behavior required to establish gross negligence.”

Regarding Fox, Traum said the evidence is not strong enough to show he was inattentive while driving, and even if he had known of the malfunctioning packing system, his logical assumption would have been that the problem would hamper trash compaction, not lead to the deaths of children.

Fox, who has not returned to work since the fatal accident, appeared briefly in court Friday morning as his arraignment on the misdemeanor charge of failing to properly check his vehicle was postponed for two weeks. His attorney and his union representative decried the CHP report as political scapegoating.

“He’s the driver. He’s not a mechanic. The notion that there’s something he failed to do is outrageous,” said lawyer Steven Kleifield, who represents Fox in a civil suit the driver filed against Amrep Corp., the truck’s Ontario-based manufacturer. Kleifield said he had not yet reviewed the CHP report and could not respond to specific allegations.

“Kenny Fox is going to live with the death of those two children on his soul for the rest of his life,” said Julie Butcher, spokeswoman for the truck drivers union. “If the idea of prosecuting Kenny criminally is to get justice somehow, it absolutely is just serving an injustice.”

Wear, who has worked for the city for 19 years, was suspended for 60 days but is fighting to get the discipline erased from his record. Friday he brushed off the allegations in the thick report.

“Whatever they throw at me, I’m going to fight it,” he said. “This is a game to them, but to me it’s very serious. They pretty much destroyed my life as it stood before.”

Deputy City Atty. Christopher Westhoff, who has handled the fallout from the incident, could not be reached for comment Friday. Board of Public Works President J.P. Ellman and Vice President Frank Cardenas both declined to comment because they had not yet seen the CHP report.

The report also said that the malfunctioning truck had about 240 repairs between October 1993 and Dec. 1, 1995, including 93 concerning the gripper, loader and packer mechanisms, whose failures triggered the crash.

The report added that Wear told police on the day of the crash that he had seen similar problems with the automatic packer blades before, although high-ranking officials insisted for a week afterward that nothing of the kind had ever happened.

“On this particular late-style packer blade, these newer trucks, we had the blade break before,” Wear said, according to a transcript in the CHP report.

Among those interviewed by CHP officers were 45 passengers on the Los Angeles Unified School District bus, children ages 6 to 12 who rode for up to an hour each morning to their schools.

Before the accident, some were dozing with their heads against the window, while others scribbled in coloring books, scrambled to complete homework assignments or chatted with their seatmates. After the crash, they said, they huddled on the floor, stood frozen in the aisle or simply waited to be told what to do next.

“She heard the glass breaking, but did not see or feel any impact. She was scared and began to cry,” officers wrote after talking to Janet Palacios, who was 6 at the time of the crash. “She stood in the aisle and saw three kids on the floor with blood around them. She remained standing in the aisle until she was directed off the bus.”

Seven-year-old Raul Terrazas was bending over to pick up a folder a second before the crash and felt Brian Serrano “falling against him,” according to the report.

Eight-year-old Charles Valentino “covered his eyes because of the flying glass,” the report said. “When he uncovered his eyes, he saw three injured kids.”

Ernesto Reyes “does not remember anything about the events surrounding this collision,” police wrote after talking to the 6-year-old boy the day of the crash.

Attorney David Acalin, who has filed a lawsuit against the city, the truck manufacturer and several others on behalf of 13 children, including Raul Terrazas, who were on the bus, said the trauma is obvious from the interviews in the report.

“This is clearly a case where the psychological scars are something that are going to live with these children for the rest of their lives,” he said.

Reports from other witnesses are similarly chilling.

“When the pole was coming close enough, I stopped in the middle of the street, ducked, and closed my eyes while clutching the steering wheel,” recalled Laurie Aponte of Montebello, who was driving on Temple Street near the intersection of Alvarado just before the crash. “It [passed] right over my car. I sat there for a minute in awe over what had happened; then I went to work.”

Fox’s own interview provides this recounting of Dec. 6:

Before work, he checked the packer’s operation from inside the truck and the ground, marking it--and everything else--”OK” on his pre-trip inspection report.

“I always double-check the packer and nothing was unusual. It’s a habit of mine,” Fox told the officers. “Everything was running smoothly at the yard during the pre-trip check.” He did find a bent gripper, and showed it to the mechanic and supervisor “so I [wouldn’t] be blamed for the damage.”

Driving west on Alvarado at about 25 mph, Fox started the automatic packer in anticipation of his first pickup of the day.

“Just within a few seconds, I heard a ‘thump’ sound and I pulled the truck over. I actually thought that the exhaust stack maybe had fallen over. . . . I got out of the truck, I looked, and I still saw it [the stack] there,” Fox said, apparently referring to what he did just after the accident.

Parents of the two dead boys could not be reached for comment Friday, but the lawyers in their civil suits against the city and the truck manufacturer said they were outraged by some of the report’s findings.

“Clearly, the system was broken, there’s no doubt about that,” said Paul Kiesel, who represents the Mata boy’s parents. “If nothing else, this will help illustrate the deficiencies so nothing like this will ever happen again.”

Steven Lerman, who represents Brian’s mother, said prosecution should be harsher.

“We’re talking about two deaths,” Lerman said. “We’re talking about serious injuries. The tragedy of what happened--all because of laziness.”