[nagdu] Was Guide dog killed - Contributory Negligence

Tue Mar 23 12:29:22 UTC 2010

Albert, whether a defendant can be absolved of his or her own negligence by
pleading that the plaintiff contributed to his or her own injury by being
negligent is often a matter of precedential case law.  Contributory negligence
is sometimes ruled out by statute, as it appears to be in many cane laws, but
courts put it back into the equation in egregious situations where it is
believed that holding someone wholly liable for damages in a certain case would
be unfair.  Often juries are given the task of determining just how much fault
the victim had in creating an accident.  The concept of contributory negligence
is an attempt to bring fairness to a tort system that must weigh difficult
facts.

Contributory negligence determinations depend upon social norms of the times,
the skill of the attorneys in framing a case before a judge or jury, a very
complex statutory scheme, or the individual prejudices of the trier of fact.
Then, too, even if contributory negligence is ruled out by case or statutory
law, a driver may just not be determined to have been negligent or responsible
for damages at all because of the facts.  Take the case where someone is driving
too fast on an interstate expressway.  To what extent is he or she negligent
with respect to hitting a blind person with a cane who is attempting to cross a
busy interstate?  What is a fair result?  How do you write a law to cover these
situations?

For every case that holds that contributory negligence reduced or eliminated a
victim's recovery, you will find another with almost identical facts that holds
the other way.  Added to the plethora of inconsistent results is that states
also have different statutory schemes.  Cases involving children running out
from behind parked cars are a good example where the issue of 'fairness' arises
all the time under tort law.  While statutes  with similar language in each
state would help generate more consistency,  there will never be certainty in
this area of the law.  In some places, being blind will always limit the
victim's access to justice.  In others, no amount of fault on the part of the
victim will limit the responsibility of the tortfeasor.  

Justice and certainty are difficult to achieve under the law, because we cannot
predict all situations in a way that will allow us to write laws with absolutely
rigid results.  I think you can see that this can also be a good thing.  The
task, it seems to me, is education and establishing a balance between the needs
of society as a whole and the needs of those who require protection from
negligent behavior.  

All this being said, I share your underlying anger about the fact that it often
appears that those of us who are visually impaired are fair game for
inconsiderate and reckless people.

Yours in this uncertain world,

David

-----Original Message-----
From: nagdu-bounces at nfbnet.org [mailto:nagdu-bounces at nfbnet.org] On Behalf Of
Albert J Rizzi
Sent: Tuesday, March 23, 2010 1:30 AM
To: 'NAGDU Mailing List,the National Association of Guide Dog Users'
Subject: Re: [nagdu] Washington - Guide dog killed crossing Kennewick street

Will you clearly provide a reference which states this position you take? Or can
you clarify if this is how you  choose to interpret the law. I am concerned
others will misunderstand you here as I do, so I sent a few references from some
states. Please show us where your laws say the blind person is or can be
considered contributoraly negligent if hit buy the driver of a vehicle.. 

Albert J. Rizzi, M.Ed.
CEO/Founder
My Blind Spot, Inc.
90 Broad Street - 18th Fl.
New York, New York  10004
www.myblindspot.org
PH: 917-553-0347
Fax: 212-858-5759
"The person who says it cannot be done, shouldn't interrupt the one who is doing
it."

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-----Original Message-----
From: nagdu-bounces at nfbnet.org [mailto:nagdu-bounces at nfbnet.org] On Behalf Of
Marion Gwizdala
Sent: Monday, March 22, 2010 10:03 PM
To: NAGDU Mailing List, the National Association of Guide Dog Users
Subject: Re: [nagdu] Washington - Guide dog killed crossing Kennewick street

Tracy,
    I am not implying that it is the blind guy's fault. I am only saying that
the white cane law does not excuse the blind person from using due caution while
crossing!

Marion

----- Original Message -----
From: "Tracy Carcione" <carcione at access.net>
To: "NAGDU Mailing List, the National Association of Guide Dog Users" 
<nagdu at nfbnet.org>
Sent: Monday, March 22, 2010 8:47 AM
Subject: Re: [nagdu] Washington - Guide dog killed crossing Kennewick street

> Marion, while it's true that the blind person could be responsible, it
> seems to me that the assumption is just that--blind guy gets hit, blind
> guy is at fault.  It ain't necessarily so.
> I've heard that, many years ago, if a blind person was hit and brought the
> case to court, it would be dismissed or the blind person would lose.  We
> were assumed to have been negligent just because we were walking around
> outside without a sighted keeper.
> I think that law has changed, but I'm not so sure about the underlying
> assumption.
>
> We have to be careful, of course.  We can't go bounding out into the
> street without trying to make sure it's safe to go, as best we can.  But
> the White Cane law says that drivers also have some responsibility not to
> turn on top of us, or back out over us, or whatever. It doesn't seem too
> much to ask.
> Tracy
>
>
>
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