[nagdu] Washington - Guide dog killed crossing Kennewick street
David Baker
david at bakerinet.com
Tue Mar 23 18:41:27 UTC 2010
Well, not exactly, Albert.
Case law, or precedent, is as much a part of the law as statutes are. Our law
is based upon the Common Law of England and Common Law is the law of what rules
were established by courts in other cases with similar facts. It is not so much
a simple interpretation, but rather the application of rules established in
cases with similar facts. The role of the lawyer is to present his or her facts
in a way that will be arguably similar to cases where a rule favorable to his
client has been established. So, no, these rules are not just interpretations
done on the fly, they are actual, real rules of law that can have the same
effect as rules established by statutes. They are just as much, the law.
As Marion and I have both noted, one can have a good conscience and contribute
negligently to damages in an accident. The Ipod listening cane-carrier would be
one example. I can be walking with an unprotected knife in my pocket and
contribute negligently to being badly cut when wrongly bumped in a cross walk
while walking with the light and carrying a cane. True, had the driver not been
negligent, I would not have been hurt at all, but absent my negligence I might
not have been cut. My contribution to my damage may or may not be relevant,
depending upon the case law and statutory law of that jurisdiction. Again, in
tort law we don't necessarily get a free pass by being 'legally' within our
rights.
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 2:14 PM
To: 'NAGDU Mailing List,the National Association of Guide Dog Users'
Subject: Re: [nagdu] Washington - Guide dog killed crossing Kennewick street
Yes but the law as written does not include such considerations that is up to
the interpretation and presentation of the case in court. I am just wanting to
be clear that your interpretation though in the best interests of our peers, is
just an interpretation of the law and not a factual component of the law. we
could as litigators and theorists provide any number of instances where someone
might contribute to the problem, but in that instance where a blind pedestrian
steps off a curb, in good conscience following said laws and crossing at the
proper intersection in the proper cross walk and is struck down by a driver not
yielding the right of way as required by law, can you tell me where one might
find a possible contribution to the accident on the part of the pedestrian?
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."
Visit us on Facebook LinkedIn
-----Original Message-----
From: nagdu-bounces at nfbnet.org [mailto:nagdu-bounces at nfbnet.org] On Behalf Of
David Baker
Sent: Tuesday, March 23, 2010 1:52 PM
To: 'NAGDU Mailing List,the National Association of Guide Dog Users'
Subject: Re: [nagdu] Washington - Guide dog killed crossing Kennewick street
Albert, statutes generally do not cite case law. Contributory negligence is a
concept that is most often a child of case law (although not always). It is
often a figurative reference as well, in that it often governs the thought
processes of triers of fact. I think that Marion's and my 'reductio ad
absurdum' examples pretty well explain how a blind person can be contributorily
negligent both in law in some jurisdictions and in fact in virtually all of
them. It is generally what we think of as 'common sense'. It would, for
example, be hard to see how a blind person carrying a cane who knowingly crosses
a busy street while listening to loud rock music on an Ipod would not be
negligently contributing to his or her own injuries. A trier of fact,
regardless of what statutes are in place, is going to be straining to visit
some, if not all, responsibility for any resulting injury upon that pedestrian.
A person who did not stop for the white cane in that circumstance would likely
escape both criminal and tort liability, unless he or she had also run a red
light at a cross walk. Even then, the Ipod listening cane-carrier, could be
apportioned some blame in tort litigation. In negligence law one is generally
required to exercise due care even when another is not. Stepping off the curb
with a white can is not a free pass regardless of how the statute reads.
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 9:17 AM
To: 'NAGDU Mailing List,the National Association of Guide Dog Users'
Subject: Re: [nagdu] Washington - Guide dog killed crossing Kennewick street
I have done that previously. Would you please provide verbiage wherein it
specifically and clearly states as you have here, that the blind person can be
contributory negligent. I sent Wisconsin , Florida and I think Wyoming statutes.
Would like to see your references to see how I might be able to sway my thoughts
and opinions on the subject at hand.
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."
Visit us on Facebook LinkedIn
-----Original Message-----
From: nagdu-bounces at nfbnet.org [mailto:nagdu-bounces at nfbnet.org] On Behalf Of
Marion Gwizdala
Sent: Tuesday, March 23, 2010 7:46 AM
To: NAGDU Mailing List, the National Association of Guide Dog Users
Subject: Re: [nagdu] Washington - Guide dog killed crossing Kennewick street
Albert,
Would you please send us the texts of at least two of these statutes to
which you rfer?
Fraternally yours,
Marion
----- Original Message -----
From: "Albert J Rizzi" <albert at myblindspot.org>
To: "'NAGDU Mailing List, the National Association of Guide Dog Users'"
<nagdu at nfbnet.org>
Sent: Tuesday, March 23, 2010 1:25 AM
Subject: Re: [nagdu] Washington - Guide dog killed crossing Kennewick street
> With all do respect I read the law a little differently. The ones I
> sent,
> legally preclude any responsibility for said accident on anyone other
> then
> the sighted driver. That is not to say that the blind person could
> have
> contributed to the matter due to any number of reasons, but the law as
> I
> interpret it does not at all consider contribution on the part of the
> blind
> pedestrian to the problem. Onus is on the driver or so it seems to me.
>
> 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."
>
>
> Visit us on Facebook LinkedIn
>
>
>
> -----Original Message-----
> From: nagdu-bounces at nfbnet.org [mailto:nagdu-bounces at nfbnet.org] On
> Behalf
> Of Marion Gwizdala
> Sent: Monday, March 22, 2010 10:01 PM
> To: NAGDU Mailing List, the National Association of Guide Dog Users
> Subject: Re: [nagdu] Washington - Guide dog killed crossing Kennewick
> street
>
> Albert,
> This law serves to not assign contributory megligence only based
> upon
> blindness. In other words, an attorney cannot argue that a person's
> blindness was a contribitor the a crash. It does not, however,
> preclude
> assigning contributory negligence if it can be shown that the blind
> person
> was negligent by not using due caution. If a blind person steps out in
> front
>
> of a moving vehicle that cannot be stopped , it does not excuse such
> behavior.
>
> Fraternally yours,
> Marion
>
>
> ----- Original Message -----
> From: "Albert J Rizzi" <albert at myblindspot.org>
> To: "'NAGDU Mailing List, the National Association of Guide Dog Users'"
> <nagdu at nfbnet.org>
> Sent: Monday, March 22, 2010 8:51 AM
> Subject: Re: [nagdu] Washington - Guide dog killed crossing Kennewick
> street
>
>
>> MARION, I AM NOT SURE THAT YOUR STATEMENT IS COMPLETELY CORRECT IN
>> THIS
>> REGARD. AFTER RESEARCH IT SEEMS THAT MANY STATES HAVE AMENDED THIS
>> LAW TO
>> PRECLUDE THE BLIND FROM BEING CONTRIBITORILY NEGLAGENT OR RESPONSIBLE
>> IN
>> SOME WAY FOR HAVING BEEN HIT. I HAVE FOUND THESE REFERENCES ONE OF
>> WHICH
>> I
>> THINK IS FROM A SOUTHERN STATE AND THE OTHER IS WISCONSIN. SO IT
>> SEEMS TO
>> VARY FROM STATE TO STATE. IT WOULD BE GOOD TO FOLLOW THE LEAD OF
>> WISCONSIN
>> FOR SURE IF WHAT YOU BELIEVE IS TRUE IN YOUR STATE. WE SHOULD HAVE
>> ONE
>> CONSISTANT AND CONSTANT LAW FROM STATE TO STATE FOR THOSE OF us who
>> travel
>> across our country,
>>
>> PUBLIC ACCOMMODATION LAW
>>
>>
>>
>> White Cane Law 752.52 Sec. 2.(1) A driver of a vehicle shall not
>> approach
>> a
>> crosswalk..., or any other pedestrian crossing without taking all
>> necessary
>> precautions to avoid accident or injury to a blind pedestrian
>> carrying a
>> cane or using a guide dog.
>> (2) A driver who approaches a crosswalk or any other pedestrian
>> crossing
>> without taking all necessary precautions to avoid accident or injury
>> to a
>> blind pedestrian carrying a cane or using a guide dog shall be liable
>> in
>> damages for any injuries caused the blind pedestrian...
>> 752.53 Sec. 3. A person who violates section 2(1) is guilty of a
>> misdemeanor, punishable by imprisonment for not more than 90 days, or
>> by
>> a
>> fine of not more than $100.00 or both.
>>
>> Then there is Wisconsin:
>>
>> Blind pedestrian on highway.
>>
>> 1) An operator of a vehicle shall stop the vehicle before approaching
>> closer
>> than 10 feet to a pedestrian who is carrying a cane or walking stick
>> which
>> is white in color or white trimmed with red and which is held in an
>> extended
>> or raised position or who is using a dog guide and shall take such
>> precautions as may be necessary to avoid accident or injury to the
>> pedestrian. The fact that the pedestrian may be violating any of the
>> laws
>> applicable to pedestrians does not relieve the operator of a vehicle
>> from
>> the duties imposed by this subsection.
>>
>> 2) Nothing in this section shall be construed to deprive any totally
>> or
>> partially blind person not carrying the white or the red and white
>> cane
>> or
>> walking stick or not using a dog guide of the rights of other
>> pedestrians
>> crossing highways, nor shall the failure of such totally or partially
>> blind
>> pedestrian to carry such cane or walking stick or to use a dog guide
>> be
>> evidence of any negligence.
>>
>> 3) No person who is not totally or partially blind shall carry or use
>> on
>> any
>> street, highway or other public place any cane or walking stick which
>> is
>> white in color, or white trimmed with red.
>>
>> Last Revised: February 22, 2010
>>
>> And then there is the Florida statute. No where does it lay claim to
>> a
>> blind
>> person and their negligence, on the contrary, it goes as far as to
>> assert
>> that anywhere a blind person steps off a curb to cross a street puts
>> the
>> burden of responsibility solely in the lap of the driver.
>>
>> White Cane Law: 316.1301 Traffic regulations to assist blind persons
>> (1) It is unlawful for any person, unless totally or partially blind
>> or
>> otherwise incapacitated, while on any public street or highway, to
>> carry
>> in
>> a raised or extended position a cane or walking stick which is white
>> in
>> color or white tipped with red. A person who is convicted of a
>> violation
>> of
>> this subsection is guilty of a misdemeanor of the second degree,
>> punishable
>> as provided in s. 775.082 or s. 775.083.
>>
>> (2) Whenever a pedestrian is crossing, or attempting to cross, a
>> public
>> street or highway, guided by a dog guide or carrying in a raised or
>> extended
>> position a cane or walking stick which is white in color or white
>> tipped
>> with red, the driver of every vehicle approaching the intersection or
>> place
>> where the pedestrian is attempting to cross shall bring his or her
>> vehicle
>> to a full stop before arriving at such intersection or place of
>> crossing
>> and, before proceeding, shall take such precautions as may be
>> necessary
>> to
>> avoid injuring such pedestrian. A person who is convicted of a
>> violation
>> of
>> this subsection is guilty of a moving violation punishable as
>> provided in
>> chapter 318.
>>
>> (3) Nothing contained in this section shall be construed to deprive
>> any
>> totally or partially blind or otherwise incapacitated person not
>> carrying
>> such a cane or walking stick, or not being guided by a dog, of the
>> rights
>> and privileges conferred by law upon pedestrians crossing streets or
>> highways. The failure of any such person to carry a cane or walking
>> stick
>> or
>> to be guided by a dog shall not be considered comparative negligence,
>> nor
>> shall such failure be admissible as evidence in the trial of any
>> civil
>> action with regard to negligence.
>>
>>
>> I would like to see the law you are referencing here in the hopes we
>> could
>> amend the one you are relying on, peace.
>>
>>
>>
>>
>> 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."
>>
>>
>> Visit us on Facebook LinkedIn
>>
>>
>> -----Original Message-----
>> From: nagdu-bounces at nfbnet.org [mailto:nagdu-bounces at nfbnet.org] On
>> Behalf
>> Of Marion Gwizdala
>> Sent: Monday, March 22, 2010 5:34 AM
>> To: NAGDU Mailing List, the National Association of Guide Dog Users
>> Subject: Re: [nagdu] Washington - Guide dog killed crossing Kennewick
>> street
>>
>> Dan,
>> One scenario in which a blind person could have been at fault in
>> such
>> a
>> crash is if the blind person stepped out in front of the vehicle and
>> the
>> operator was unable to avoid the crash! The White Cane Law does not
>> give
>> us
>> carte blanche to cross an intersection at any time nor absolve us
>> from
>> any
>> responsibilities for our safe travel!
>>
>> Fraternally yours,
>> Marion Gwizdala
>>
>>
>>
>> ----- Original Message -----
>> From: "Dan Weiner" <dcwein at dcwein.cnc.net>
>> To: "'NAGDU Mailing List, the National Association of Guide Dog Users'"
>> <nagdu at nfbnet.org>
>> Sent: Sunday, March 21, 2010 8:19 PM
>> Subject: Re: [nagdu] Washington - Guide dog killed crossing Kennewick
>> street
>>
>>
>>> How exactly would the blind person be responsible in this accident,
>>> what
>>> about our trusty White Cane Law.
>>> The fact that no one complies with the law doesn't mean that lack of
>>> compliance isn't a criminal act.
>>>
>>> Dan W. and the Carter Dog
>>>
>>>
>>> _______________________________________________
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>>
>>
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