Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
only halting and partial credence; and in none are they fully and positively
implemented by the courts. Dean Prosser himself immediately emasculates his
proposition. He applies it only to a narrow realm of street accidents. And even
there, while freeing the disabled of negligence per se for being where they are, he
hobbles them with the views of the able-bodied as to what their reasonable conduct
should be. In these areas, the sum total of the law's beneficence to the disabled
seeking a full-fledged right to live in the world can be easily and briefly
summarized: The courts, prodding the tardy genius of the common law, have
extended a variant of the reasonable man concept to those who injure the disabled
on the streets, in traffic, and on common carriers. This constitutes a meager and
inadequate accomplishment in the light of the integrationist purpose and the
legislative declaration of policy. . . .
Id. at 852. Summarizing how courts have applied the negligence standard in cases involving
disabled people, tenBroek continues:
The majority of courts say that it is not negligence per se for a blind man to walk
the streets without a companion or attendant; others that he may do so only in certain
circumstances. Some say that it is contributory negligence as a matter of law to
travel without dog, cane, or companion; others, that the failure to use one or more
of these travel aids presents a question for the jury as to whether due care was
employed. No courts say that a blind man may not, when taking the proper
precautions, enter unfamiliar territory; most courts, however, emphasize the
plaintiff's knowledge of the surroundings and the frequency of his presence. Some
say that the plaintiff's knowledge that the streets are or may be defective or
dangerous creates a kind of assumption of risk; others, that in the circumstances, the
disabled person may proceed but must do so with due care in the light of his
knowledge. The latter rule is also applied by some courts to blind persons in railway
depots, at railway street crossings, and like places of similar danger, while others
say that it is gross negligence for blind persons to be in such places alone. Some
courts say that the disabled may proceed upon the assumption that the streets and
highways are kept in a reasonably safe condition, and that cities and abutting
property owners must expect the disabled to be abroad in the land and accordingly
must take precautions necessary to warn or otherwise protect them. Others say that
those who create, maintain, or tamper with the streets and public passageways are
only under a duty to safeguard the able-bodied pedestrian.
No courts have held or even darkly hinted that a blind man may rise in the morning,
help get the children off to school, bid his wife goodby, and proceed along the streets
and bus lines to his daily work, without dog, cane, or guide, if such is his habit or
preference, now and then brushing a tree or kicking a curb, but, notwithstanding,
proceeding with firm step and sure air, knowing that he is part of the public for
whom the streets are built and maintained in reasonable safety, by the help of his
taxes, and that he shares with others this part of the world in which he, too, has a
right to live. He would then be doing what any reasonable, or prudent, or reasonably
prudent blind man would do, and also what social policy must positively foster and
judges in their developing common law must be alert to sustain.
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