1 Califo rni evie w a L aw R | Issue 2 Article 22 Volume 54 May 1966 i gh t t o Li ve in the W or ld : The D i s a bled in the The R a or t s w of T L a cobu s t e nB r o ek J https://scholarship.law.berkeley.edu/cal ifornialawreview Follow this and additional works at: Recomme nded Citation alif , 54 C ts . 841 (1966). r o w of T a e L h n t d i le b ev . L. R Jacobus tenBroek, Th e R i g h t t o L i v e i n t h e W o r l d: Th e Disa Link to publisher version (DOI) https://do i.org/10.15779/Z384J44 epository. It has been accepted for n access by the C This Article is brought to you for f ree and ope alifornia Law Review at Berkeley Law Scholarship R inclusion in C alifornia Law Review by an authorized administrator of Be rkeley Law Scholarship R epository. For mor e infor mation, please contact [email protected] .
2 The Right Live in the World: to Law of Tortst Disabled in the The tenBroek* Jacobus As life. to man, in any TOLD, is a law of WE ARE animal M OVEMENT, event, nothing be essential to could more personality, social exis- economic tence, to opportunity-in short, individual and well-being life integration into the the of the community-than capacity, physical the approval, the legal public and be abroad in the right to land. Almost physical disability by definition, of its in many forms entails getting in about, difficulties so quite regardless and this is partic- the of ular surroundings. Such case of the cripple, is the and paraplegic, the legless. the word The "halt" itself a description is disability in of terms of on mobility. limitation Some difficulties in getting about arise of out conditions the the modern of in combination world the with particular the of as disability, case in in traffic. However the deaf person different what from they are widely supposed to are travel be, there problems in inherent blindness these and are some to extent increased, to some extent the structures diminished, by and conditions of modem urban Author's Note: If the blind appear in these pages t than other disabled, it may be more because author is blind and has the special interest his kind. He thinks a in however. not, The that the fact individually and collectively is blind a very active group of are the disabled, not most if the active. If the National Federation of the appears Blind in these pages more often than other organizations and agencies composed of the blind dealing with their or problems, it because the author may be organization in served founded that 1940, as its for and is president still years, 21 in it. He thinks not, active an leader Na- however. The tional Federation Blind is an aggressive, of the organization activist militant, of the blind themselves a which in a century quarter of has achieved a great legislatively deal, and other- wise, and been in the thick of the has always the is Monitor If cited fight. Braille often more than magazines, it may be because other author is editor the that journal. of He not, thinks That specializes in however. journal information and coverage which have special a relevance to issues here discussed. the article is amply flecked This with footnotes, citing a wide range of formal The materials. views expressed, believes, are the author his experience as by personal verified a disabled individual than far all more by footnote references put the together. The author to wishes his indebtedness acknowledge to following persons for their the as assistants: Fay Stender, services research Platt, Gary Shelton, Robert Warren Deras, Barry McGough, Ken Cloke and Charles Miller; and to the Institute of Social Sciences the of of California, Berkeley and University National Federation of the Blind the making for these available. services * A.B. MA. 1935, LL.B. 1938, 1934, J.S.D. 1940, University of California, Berkeley; SJ.D. Harvard University; 1947, 1956, D.Lit. College; LL.D., Findley 1964, Parsons College. Member 1950-63, Chairman 1960-63, State Social California Welfare Board. Professor of Political Science, University of California.
3 841 64: [Vol. CALIFORNIA LAW REVIEW and life activities. In 1962 its survey of the characteristics of those receiving federal-state aid permanently the to totally and disabled, the Department Health, of Education Welfare and concluded that twenty- per nine are cent confined the to home because physical of or mental conditions, a conclusion apparently based the on responses of the recip- themselves ients rather than on medical evidence physical of capacity.' Of roughly the 85,000 aid-to-the-blind recipients, presumably least the active segment the of blind population, only 15.9 per cent are so con- 2 fined. The physical actual limitations resulting from the disability more often not than play little role in determining whether the physically dis- abled allowed are move to about in and be places. public Rather, that judgment for the part most results from variety a of considerations to related attitudes, public attitudes which not infrequently quite are erroneous and misconceived. These include public imaginings about what the inherent physical limitations must public be; solicitude about the safety to be achieved by keeping the disabled out of harm's way; public feelings protective of care and custodial security; public doubts about why the disabled should want to abroad be anyway; and public aversion the to of sight them and the conspicuous reminder their of plight. For purposes, our there is no reason to judge these attitudes as to whether they do credit discredit or to the human head and heart. Our concern is with their existence and consequences. their what To extent do the legal right, public the approval, the and physi- cal capacity coincide? Does law the assure the physically disabled, to the degree they that physically are able to take advantage the it, of right leave to their institutions, asylums, and the houses of their rela- tives? they Once emerge, must they remain the on front porch, do or they have right the be to public in places, go to about streets, the in side- roads walks, and highways, upon ride to trains, airplanes, buses, and taxi and cabs, enter to and to receive goods and services in hotels, res- taurants, other and places of public accommodation? If under so, what conditions? What are standards the care of conduct, and risk of and liability, to which are they and held others which to are with held respect to them? the Are standards the same them for for as able-bodied? the Are there legal as well as physical adaptations; what and to extent and what in ways are these tied to concepts custodialism of integrationism? or 1 U.S. of Dep't Health, Educ. Welfare & Letter State 747, No. Table 27, July 2, 1964. 2U.S. Dep't of Health, Educ. & Welfare, State No. Letter Table 746, 32, July 2, 1964. Roughly travel 40% family with members, friends, paid or 13.3% guides; with canes; 1% with 22.79 dogs; alone travel without and a cane. Ibid.
4 19661 THE AND TORT LAW DISABLED I THE INTEGRATIONISM POLICY OF the Answer Integrationism A. thesis the paper that the answers to these questions to be is of It this public other government, and other of courts, agencies returned by the be controlled by a policy of integrationism- and private bodies should the entitling disabled to full participation in the life of policy a is, that the and enabling them to do so-that this community and encouraging now, for some time has been, the policy of the nation, policy is and by and legislatures of the states such by the Congress declared as the of the United the States; that and others thus and courts are bound to policy at use as guide, if not as mandate, in reaching their that least whatever decisions, may views be its desirability as their to feasibility. or is implicitly and explicitly integrationism by The of policy adopted by all of the states in the set of laws, agencies and nation and the as the Rehabilitation Program. Commenced in several known activities states as long ago of 1918 and 1919,1 and given national support the as 4 1920, Congress that program has been enlarged in conception and by in 5 funding successive legislative amendments, in by the im- increased by organized World II, by pressures from of groups of the dis- pact War and by a growing sense of its importance and abled, potentialities. At head of the 1965 Rehabilitation Act Amendments stands this the "The Secretary authorized to make grants as provided declaration: is . this for in . . title assisting of States the purpose in rehabilitating that they may prepare for and engage handicapped individuals so in gainful employment of their the to extent increas- thereby capabilities, only their social and economic well-being but also the productive ing not 8 of the Specifically, the federal grants are to be made capacity Nation." states services,' aid them in meeting the costs of rehabilitation these to to 8 in services, innovations expanding them by planning and making those 9 rehabilitation comprehensive developing a services, initiating special 3 Gen. Acts of Mass. 1918, ch. 231, E.g. 201-02; Cal. Stats. 1919, ch. 183, at 273-74; at Laws Ill. 1919, S.B. No. 449, at 534-37; of of Minn. ch. 365, at Laws 1919, Stat. New 389-90; 182, at 329; Laws of NJ. 1919, ch. 74, at 138-44. For a general 1919, of voca- ch. history rehabilitation, OBERwANN, A HISTORY oF see REnEABTrATioN nr AmiucA tional VOCATIOxAL (1965). 441 Stat. 735. Stat. 374 (1943), 68 Stat. 652 (1954), 79 Stat. 1282 (1965). 557 31 79 29 U.S.C. § 1282, (Supp. I, 1965). 8 Stat. 7 79 Stat. 1282, 1283, 29 U.S.C. §§ 31-33 (Supp. I, 1965). 8Ibid. 79 Stat. 1282, 1289, 9 U.S.C. § 34(a) (Supp. I, 1965). 29
5 841 64: [Vol. CALIFORNIA REVIEW LAW 10 in plan of the each states, rehabilitation for and research," demonstra- tion,'" training and projects.' federal The Vocational Rehabilitation Administration is authorized to research conduct and gather dis- and seminate information with to respect abilities, the aptitudes capac- and of ities handicapped individuals, development of their potentialities, and 4 their utilization gainful in suitable and employment. The Amend- 1965 ments also increase the appropriation for earlier-created the President's Committee National on Employ the Physically Handicapped Week, to carry out function the indicated its title, to by similar stimulate com- mittees the in states, sponsor to and the annual event known as "Employ 6 the Handicapped Week."' purpose The 1965 of the Amendments, said 7 the House Committee Education on and Labor, is "to provide the physically and mentally disabled persons of this Nation improved an expanded and program of which services will in result oppor- greater tunities for them to more fully enter into the life country of our as 8 active participating citizens."' According to the annual 1964 of the report Vocational federal Re- habilitation Administration, in that 119,000 year disabled persons were rehabilitated through this program into productive activity and em- ployment at an expenditure by nation and states $133,000,000; of 795 research and demonstration projects were conducted at cost a the to government of $15,179,000; and 447 teaching programs 3,259 and traineeships and research fellowships were granted cost a at $16,- of 528,000.9 Of the rehabilitated persons, over seventy per cent were unemployed when they entered rehabilitation the process, and most of the remainder had earnings; low about 16,000 recipients were of public 0 assistance, and about 5,200 resided tax-supported in institutions. With rehabilitation funds, of scores communities and organizations have been aided the construction in comprehensive of rehabilitation centers, special centers for specific disabilities, and in clinics connection with hospitals- all devoted to reducing and preventing dependency and thereby further- 21 ing the policy integrationism. of Ibid. 10 Stat. 1179 1282, 37(a) 1291, 29 U.S.C. § I, (Supp. 1965). Ibid. 12 '3 Ibid. 14 Ibid. 15 joint Resolution, 63 (1949). Stat. 409 1282, 1294, 16 79 Stat. 38 U.S.C. 29 § (Supp. 1965). I, H.R. 17 Cong., REP. 432, 89 No. (1965). Sess. 1st 1 8 Id. at 2. 19 1964 U.S. HEALTH, DEP'T OF EDUC. & WELFAE ANN. 327-29. RLT. 201d. at 329. 2 1 1d. at 330, 331.
6 19661 LAW TORT AND DISABLED THE government the federal from grants-in-aid receive of the states All them- commit and necessarily acts rehabilitation vocational the under inte- maximum acts of of those policy and explicit the implicit selves to coordinate act an example, for California, In the disabled. for grationism vests currently It since 1919.22 in existence been has act national the to with cooperate to and authority powers all necessary "with officials state ' public the "It is declares: States and United the of government the handicapped encourage and assist to of California the State of policy in self-sufficiency and usefulness maximum their attain to individuals 2 4 ' Other to society." contribution full their make may they order that ser- the home-teacher-counselor as such institutions and state services 26 25 policy with this espouse Blind the for Center the Orientation vice and emphasis. equal of titles assistance public the in mind, objective same very this With self-support declare to (1) been amended: have Act Security Social the per- the and the blind respect to act with that of the purposes one of ser- of provision the encourage (2) to disabled;' totally and manently or self-support for capability retain or attain recipients to help vices 2 the to permit " (3) dependency; reduce or to prevent likely or self-care eligibility aid their to consequence without retain, to disabled and blind self- for plan a fulfill to necessary resources and income other grant, or 2 D con- from income earned of amounts various exempt to (4) support; aid disabled and blind the of amount the determining in sideration 30 for incentive an provide states that the require to (5) and, grants; attributable reasonably expenses any to consideration giving employment 3 to designed were amendments of these All 1 income. of the earning to assistance of the public aspects rehabilitative to the dimensions add new 3 2 program insurance disability the 1954, in beginning its From programs. that Congress the of policy is it "the that a declaration contained has 2 2 10.5. ch. CODE, CAT. Enuc. 183, ch. 1919, Stats. Cal. 6977. § CODE EDUC. 23 CAL.. 2 4 § 6971. CODE EDUC. CAL. 2 5 6209. CODE § CAL. EDUC. 6201-08. § CODE EDUC. CAL. 26 (1964). 1201, 1351 § 42 U.S.C. (1956), 849 807, 2770 Stat. (1964). 1201, 1351 U.S.C. §§ 303, 42 (1962), 76 172 Stat. 28 by Stat. 79 as amended 1201-06 (1964), U.S.C. §§ amended, 42 as (1935), 645 2049 Stat. U.S.C. 42 amended, as (1950), Stat. 555 64 1965); (Supp. I, 1201-06 §§ 42 U.S.C. 286, 76 I, 1965); (Supp. 1202, 1382 42 U.S.C. §§ 286, 79 Stat. amended by (1964), as §§ 1351-55 (1964). 1381-85 U.S.C. §§ (1962), 42 197 Stat. 1965). I, (Supp. (disabled) 1351 (blind), §§ 1201 U.S.C. 42 (1965), 418 286, Stat. 30 79 172, Stat. 76 1965); (Supp. I, § U.S.C. 1202 42 amended, as (1939), Stat. 1397 3153 (1964). 42 § 1382 U.S.C. (1962), 199 86th 1856, REP. S. No. 21 (1962) ; 2, 3, 17-18, 2d Sess. Cong., 87th No. 1589, REp. 32 S. (1956). Sess. 2d 29 Cong., 2133, 84th S. REP. No. (1960); 52 Sess. 2d Cong.,
7 841 54: [Vol. CALIFORNIA LAW REVIEW individuals determination of disability, and applying disabled a for individuals disabled who are entitled to insurance child's benefits, shall promptly be referred" rehabilitation state the to agency, "for necessary vocational rehabilitation services, to end that the maximum the number 8 such of individuals rehabilitated be may productive into activity." Rehabilitation reaches its point of culmination in remunerative em- ployment self-support and through jobs common in the callings, industry, agriculture, independent businesses, and the professions. This congres- sional policy implemented is primarily through the obligation of re- habilitation counselors and other officials to assist disabled persons in finding employment. such Persuasion demonstration and are the ac- cepted techniques. In however, areas, some are there have and been legal barriers to the employment of the disabled; elsewhere, private resistance has yielded not persuasion to and demonstration. Here the public commitment policy the to of integrationism has required legis- lative action. judicial or Legislative action has often forthcoming, been action judicial seldom. Congress forbidden has discrimination against the 8 4 handicapped federal the in civil service. A of number beginning states, 80 with California in 1939,85 have laid down a similar In ban. addition states some special enacted have statutes prohibiting such discrimination 7 8 8 with respect to teaching in the public schools,1 social physical work, 89 therapy, and the practice of chiropractic." Four extensive other legislative programs-the so-called architectural barriers statutes, programs the the for education of disabled and children youth the in regular public schools and colleges, the guide laws, dog and white the laws-are cane upon built integrationist an foundation and necessarily an imply integrationist objective. The architectural barriers statutes public that provide buildings hereafter and facilities constructed remodeled or shall be made "accessible and to functional for" the physi- 4 1 cally handicapped, presupposing the physically that handicapped will make their such way to buildings facilities and and occasion have to be in them. The programs for the education disabled of in students the 68 33 Stat. 1052, 1082 (1954), 42 U.S.C. § 422 (1964). 34 22 Stat. 403 (1883), as amended, 5 U.S.C. 633(2)9 § (1964). 85 Cal. Stats., 1939, § ch. 139, contained now 1 in CAL. Gov'T 19701. § CODE 8 6IDAHO Aim. CODE 59-1025 (Supp. § STAT. Mo. 1965); (Supp. 36.180 § ANN. 1965); Wis. STAT. §§ ANN. 63.33 63.32, (Supp. 1965); Civ. N.Y. SERv. LAW (Supp. § 55 1965). 37 CAL. EDUC. CODE 13125; § MASS. GEN. LAWS Amit., 71, ch. 38G § (Supp. 1965); EDUC. N.Y. 3004; § LAW PA. 24 STAT. A-w. § 12-1209 (1959). 38 Bus. CAL. PROF. CODE & 9030. § CAL. 89 BUS. & PROF. CODE § 2631. 40 CAL. BUS. & CODE PROF. §§ 1000-8.1. 41 For review of a statutes these accompanying see text notes 102-31 infra.
8 1966] THE AND TORT LAW DISABLED public schools are by supported opening legislation public the to schools the blind and providing deaf, special equipment, tools, books, and sup- plementary teaching services, appropriating funds to enable blind stu- to dents sighted hire readers, and exempting scholarships from considera- 4 tion determining in the amount the of blind aid grant. " Guide dog legislation strikes down restrictions on use the the of by dog blind, the sometimes and by other incapacitated persons, on common carriers, in and places public buildings, public accommodation.. in and of places cane white The are laws intended it to make safer for blind persons who 4 4 5 travel with the of aid this device. Congress a in Joint Resolution, 4 6 and the President in Proclamations two setting aside a White Cane Safety Day, have emphasized that the is cane not only a useful travel but aid also a symbol the of independence and the social and economic integration of blind. the From the foregoing, is it abundantly clear that integration of the disabled is policy the of nation. the This policy been has expressed by Congress and the by state legislatures, not but once, many times, not and merely with respect to single, a narrow area human of endeavor, but with respect to the whole broad range social, of economic, and educational activity backed up with numerous specially created agencies and instru- mentalities of government, with affirmative assistance negative and prohibitions, with and expenditures vast money of amounting hundreds to of millions of dollars each year. The basic question to which we seek an answer this: is How has this legislative policy of integrationism fared in courts, the and particularly in the law of torts? Has the law of torts been redirected and remolded according to the prescriptions the of policy? What redirecting and re- molding these do prescriptions require? B. Implications of Integrationism for the Law of Torts According to policy the of integrationism, the disabled are not to be confined to their houses, asylums, and institutions-threatened, if they emerge, not with only social sanctions legal but sanctions as in well, the form of legal barriers, disadvantages, and inadequate protections. Nature may confine them to an iron lung, a bed, a wheel chair, straps, braces, or crutches, or mouldering to in health and idleness in chair-bound 4 2 See, e.g., CAL. EDuc. CODE §§ 6821, 9354, 18060, 10651, 18060.2, 18102, 18103, 18106; CAL. WELFAm INST'NS & CODE 12800, 18600-870. §§ 43 For a review of these statutes see text accompanying notes 69-102 infra. 44 For review a these of see statutes accompanying text notes 360-411 infra. 78 Stat. 1003 (1964). 45 46 29 Fed. 14051 Reg. (1964); Fed. 30 Reg. 12931 (1965).
9 841 64: [Vol. REVIEW LAW CALIFORNIA and Mistaken and the dependent law family blindness. public attitudes form be a in effect would confinement them. Such so confine may not noticeably may not be the of poor the houses in which arrest, house of this basic in liberty, Personal imprisonment. outright from different been has confined, causelessly unjustly or be not to sense of the right Magna 39 of Chapter in right social and natural, fundamental, a as taken If state constitutions. and of federal clauses process the due and Charta right the have they must in world, the live to right the have disabled the the use to must be entitled therefore it and way into make their to make will that on terms use them to and access, of means indispensable the streets, use of terms to the on such A right right effective. original the to gain right The minimum. is rock-bottom a highways roads and walks, include, must also right to live have a which they world in to the access the utilize to right the minimum, rock-bottom same of the as a part descending Upon carriers. on common riding by thoroughfares common access to and equal right uninhibited of have a the disabled these, from or sustenance, rest, ease, to their seek accommodation public of places 47 recreation. II AND ABLE-BODIED WORLD-THE THE IN TO LIFE EIGHT THE DISABLED THE rights the basic individuals, and groups to able-bodied respect With vindi- newly and established long been have access public effective of 4 7 Places accommodation of public are defined the some in of general state acts in terms; within persons "All the method: former illustrates Utah's statute listing. by others specific in accom- equal the and full to equal and entitled are and this are state free the of jurisdiction establishments all business services in and goods privileges, facilities, advantages, modations, AN. CODE UTAH whatsoever ... " every kind of accommodation public and of in all places 43-64, Ordinance Maryland, Rockville, of ordinance the 1965); (Supp. 13-7-4 to 13-7-1 § list method: illustrates the exhaustive 1895 (1964-65), Relations Rep. 1965, 9 Race provides which establishment other or motel hotel, Any a. inn, 13-2.02 ... Section guests; permanent or transient lodging to other or soda fountain, lunch-counter, lunchroom, cafeteria, b. Any restaurant, not, or alcoholic whether beverages, or food selling in engaged principally facility such any limited to, but not premises, including, the off or on consumption for gasoline station; or any of any retail establishment, premises on the facility located arena, meeting hall, sports concert hall, house, theater, Any motion picture c. carnival, fair, circus, grounds, picnic park, amusement recreation park, stadium, alley, bowling playground, course, golf tennis court, pool, rink, swimming skating for common place used any or or pool room, billiard gallery, shooting gymnasium, assem- other activity or or sports recreational exhibition, entertainment, public or bly; public; the to of type any commodities selling in store engaged Any retail d. to all limited but not including public, the serving establishment service e. Any services, commercial or business parlors, beauty shops, barber hospitals, clinics, public. the offered to type of any services other or services, repair
10 THE AND TORT LAW DISABLED 19661 They were cated. safeguarded common at to roads law the as streets, and 48 and carriers. other Three quarters horseshoers, victualers, inns, ferries, applicability assume their general the implicitly of states Union the of denial of them on the basis of race, while forbidding the discriminatory ° 40 ethnic the Civil Rights Act of 1875," origin. creed, color, Through or them national protection. They were generally give sought Congress to part, expressly acknowledged, by the United States and, in affirmed, in at the time the Civil Rights Act of 1875 was Supreme Court 1883 51 the the fourteenth amendment. be In by debates to authorized held not 2 Act of 1964, these rights upon loudly proclaimed." the Civil Rights were Commerce The Senate denial Committee the saw of the of equal right 53 affront to human dignity, of the guarantee access the as as the an right 54 "time freedom honored means to and and public liberty," accommoda- existing themselves purpose of enhancing the individual tions "for as the 5 Judiciary of The House beings." Committee liberty and freedom human of equal access to public accommodations thought distinc- the right "so nature its denial constitutes a shocking refutation of a free tive that in demands of . . . citizenship that establishments badge society." "[T]he public that for private profit not discriminate ... ,,56 Presi- do business Lyndon in sponsoring enactment of the Civil Rights Act of dent Johnson a "this merely an economic issue-or not social, political declared is 1964 issue. It is a moral issue... All members or the public international of 7 1 The public. 1 United the to open facilities to access equal should have 4 8 v. Hildebrand, 48 Ky. Kisten B. Mon.) 72 (1849) (dictum); Markham v. Brown, (9 8 N.H. (1837); DeWolf v. Ford, 193 N.Y. 397, 86 N.E. 527 (1908); Hogan v. Nashville 523 Ry., 131 244, 174 S.W. 1118 (1915) (dictum); Rex v. Irens, 7 C. & P. Interuban Tenn. Eng. Rep. 213, 173 v. (1835); C. & P. Boss Lytton, 5 94 (K.B. 1832); 628 24 407, E.C.L. Lane Mod. 472 (1701); White's case, 2 Dyer Rep. 158 (1558); De Termino v. Cotton, 12 50, Pl. 4 (1450); 3 BLACKSTONE, Co NarNTARIEs * 166; Hale, 1 HARG. LAW Pascal, Keilway 78 (1787). TRACTS in the thirty-two states supplied by Clark, J., of Heart of Atlanta Motel, Inc. 49 list See States, 379 U.S. 241, 259 (1964). For v. not on Justice Clark's list see AR. United states STAT. §§ 41-1441, 41-1442 (Supp. 1965); Nev. ANN. 1965, ch. 332; UTAH CODE REV. Stat. § 13-7-1 (Supp. 1965); Mo. AN . STAT. § ANN. (Supp. 1965). 314.010 5018 335. That act forbade discrimination in "inns, public conveyances on land or Stat. theaters, water, places of public or other .. . amusement " Civil Rights Cases, 109 U.S. 3, 24-25 (1883). 51 The 52 See, e.g., 110 REc. CoNG. 12876 (1964) (Remarks of Senator Humphrey); at id. 1928 of Rep. Joelson); id. at 1519-21 (Remarks of Rep. Celler); id. at 1538-40 (Re- (Remarks of Rodino); marks Rep. at 1540-42 (Remarks of Rep. Lindsay); id. at 1601-02 id. (Remarks Mathias). Rep. of REP. No. 872, 88th Cong., 53 Sess. 18 (1964). S. 2d 5 4 id. at 22. Ibid. 55 H.R. REP. No. 914, Part 2, 88th Cong., 1st Sess. 56 (1963). 7 57 of State Union the Message, 110 CoTG. REc. 119 (1964).
11 841 54: [Vol. CALIFORNIA REVIEW LAW legis- the constitutionality of that upon in passing Court, Supreme States the the denial of equal access was a social joined lation, refrain in that s as on commerce." well The act itself speaks a as wrong moral and burden ... full the persons and equal enjoyment of of the entitlement to of "all and accommodations advantages, privileges, services, goods, the facilities, 9 accommodation." public of any place of are not merely procedural; nor are they com- the rights at stake So Evocative reference and belong men. all to parative. They are substantive truly comparative conception, lies at the to of these, rather than a heart accommodations. access to public gain legislation and movement to the of the equal protection clause The the fourteenth language is that of the Rights Act of 1866.0 The vision, ardor, and amendment and of Civil 6 replete ' The rhetoric is of Abolitionists. those the are principles simple and natural rights. The sentences end with moral reform, social justice, against based race, creed, color, discrimination on prohibition a with that "all begin with the declaration But they origin. ancestry, or national persons full and equal enjoyment ... of privileges. entitled to the are 62 and drives the point Arizona legislation The accommodations. in 63 listed the on based discrimination ban the to on exception An home. would suppose, discrimination on those grounds would one grounds, permit and presumably within narrow limits. Not so in for particular purposes the of access is being guaranteed, a Assuming right that basic Arizona. that that certain persons under certain conditions state statute in provides excluded persons conditions are unrelated to excluded. be may The and are The are those who persons discrimination. of grounds forbidden the conduct of boisterous "lewd or physical or immoral character," of guilty of alcohol or narcotics, or who violate non- violence, under the influence 6 a And not a blind man or the regulations of place. discriminatory them. cripple is among about burden much commerce, how- talk However with mingled on common law ever and founded in much buttressed with precedents explicitly designed to strike down discriminations much however history, much however sex, origin national religion, and color, race, based on the modem-day civil rights revolution, aimed principally at a product of 5 8 Atlanta y. United States, 379 U.S. 241, 257 (1964). Heart Motel, of Inc. (1964). U.S.C. § 2000(a) 42 243, 241, 59 78 Stat. 60 14 Stat. 27. 6 1 Early LAW (1965); Graham, The UNDER Anti-Slavery Back- TBR See EQuAL x, Fourteenth Amendment, 1950 Wis. L. Rnv. 479, 610. grounds of the 6 2 Civil E.g., Rights Act 78 1964, of Stat. 241, 243, U.S.C. 42 2000(a) § Nev. (1964); (Supp. 1965). to CODE ANN. §§ 13-7-1 13-7-3 § 4; 332, ch. Stat. 1965, UTAn STAT. 27 ch. REV. (Supp. 1965). 63 ARIz. AnN., 1965). § 41-1442 (C) (Supp. REv. ANie. AR=. STAT. 64
12 19661 THE AND TORT LAW DISABLED equal rights colored securing for statutes of persons, the in states the their present the form, 1964, Act Rights Civil the of congressional de- validating upon judicial opinions it, its proceedings and bates and the necessarily and constitutionality-all, implicitly and explicitly, unavoid- upon recognition of the absolute importance to a ably, are built the individual, and community nation, holding, of persons having, and en- access to the community and to the public, quasi-public, rights joying of private and instrumentalities necessary to make effective. rights those Are to humans rights? Are be denied human all not persons after to of they physically if Are members are the com- persons be disabled? be robbed of their rights to live in the community, their certif- munity to cancelled upon icates development of or disability? discovery These the crusade and reform throughout rhetorical hallmarks questions, of American our generation history, have in of plea the become the disabled with the black as so. with the blind. As with the Puerto well. As man, Rican, so As with with post-polio. the with the indigent Indian, the so disabled. .redress in Without areas, and with the frequency of legal many action, persons have been turned away from trains, arbitrary disabled various other from lodgings of carriers, sorts, from and common buses, of public and private housing, from bars, restaurants the rental and of places from public banks amusement, a safety deposit to rent box, other kinds of banks from give a pint to blood, of and gambling from 6 in casinos Nevada, by statute well " declared as experience by as common 6 which public is accommodated. be places the to in much-quoted used, widely In his justly celebrated and, I think, text Law Torts, Dean Prosser announces a remarkable proposition: of on the is blind, or who man "The lame, or is otherwise deaf, or dis- physically entitled to live in the world. . . ."I' Taken at its most literal abled, is this surely level, proposition proclaims a platitude. Obviously, not we do our Romans as the Greeks and off did their deformed kill disabled, There is babies. no in the afoot to campaign land extend euthanasia from the incurably ill and the sufferers of unbearable proposals to pain the the lame, and the blind. halt, Nev. Stat. ch. 332, § 1. 65 1965, Cross Blindness, tenBroek, of 66 23 VirAL SPEEcHEs 732 (1957). § 32, at 155 (3d ed. 1964). Among the 67PROSSER, physically disabled," ToRTs "otherwise Prosser bone Dean lists: v. Amusement Wray Fairfield condition, Co., 221, 10 A.2d 126 Conn. (1940); crippled, lacking coordination on crutches, Goodman v. 600 Jewish Center, Norwalk Inc., Conn. 146, 145 A.2d 812 short stature, 139 (1958); State, 172 of Carr, v. Mahan Use Md. 373, Atl. 575 (1937); lame, Bianchetti 191 Luce, 222 v. App. 282, 2 Mo. S.W.2d 129 Tex. club Texas & N.O.R.R. v. Bean, (1927); foot, Civ. App. 341, 119 S.W. 328 (1909). 55
13 84f 54: [Vol. CALIPORNIA REVIEW LAW the less Read right literally, world the in live is to something more right the than in remain to it. Prosser's Dean Now proposition assumes something of the of significance one of Jefferson's self-evident truths- the inalienable to In right life. Prosser Dean fact, updates Thomas Jeffer- moves son: He from a noun a verb-from the to right the to life to right live-and specifies, to redundantly, somewhat the this that shall be in world. vernacular the In the of Dean Prosser day, is talking the about right "to live a little." Taken broader in its Dean sense, Prosser's proposition is amply of capable accommodating the most enlightened social for policy the physically disabled the in law torts and of elsewhere. Properly under- that stood, taken be might proposition the as a statement of definitive goals, comprehensive a as formulation of the policy integrationism. of Prosser's Dean pronouncement, grand however, while purporting to from be drawn the case law, seeming while and to express for of the law the legislatively torts established of policy integration the the dis- of sense is abled, in no the of summary accurate an of law law as torts that stands today. The either judges ignore qualify or Prosser's Dean pro- nouncement the integrationist and policy. In some areas, the pronounce- ment policy the and are completely rejected; others, they in given are only halting and partial credence; in and none they are fully and posi- tively implemented courts. the by Dean Prosser immediately himself his emasculates proposition.s narrow He applies it only to a of realm street accidents. And there, even while the freeing negligence disabled of se per for being them they he hobbles where are,, the of views the with as able-bodied to what their reasonable conduct should In be. these areas, the of total law's sum the beneficence to the seeking disabled a full-fledged right to live world in the easily be can briefly sum- and The marized: courts, of the the genius prodding tardy common law, have extended a variant reasonable the of concept man to those who injure the disabled on streets, the traffic, in and on common This carriers. constitutes meager a inadequate and accomplishment light in the the of integrationist purpose legislative and the declaration Unaware- policy. of ness of and the policy applicability its in various situations, rather than judgment, considered to its as social importance, practicability, rele- or law vance in the to torts, the principal of seems be wide- for reason the policy. disregard spread of the The A. Rights Dogs and of the Rights Men of The disabled are neither specifically included nor specifically excluded public general accommodations the from legislation. That legislation dt. supra note 67. PROSSE, 68 op.
14 19661 THE AND TORT LAW DISABLED extended at time was the to go forbidding of passage beyond discrimina- a race, basis tion on of to national and color, origin, cover discrimination 9 70 based on in and, employment, religion sex. its During on passage through Congress, Congressman an amendment offered Dowdy to add 71 proscribed age to the discrimination. bases The of amendment was de- feated by to 94 after vote a of 123 House the of some members had that stated the agreed they with substance the content and motion, of but thought the procedures set in the act were out not suited to the 72 object sought. final act did, however, require The that the Secretary of a and Labor make "full the of complete factors study which might tend discrimination to result in because in employment of age and of the such discrimination consequences of economy the on and individuals 7 3 affected." proposal A of by the Federation National extend the Blind to the to the disabled of protection the act stage of the reach did not formal Rights Act of 1964 introduction. extend to "all persons" The Civil does imply and does substantive therefore is possible, It rights. if not prob- we move able, from the moment and the immediate that when away cause of the the will legislation, judges disabled bring within the its shelter. state national and While general public accommodations legislation covered the has not expressly has legislation that disabled, served as the model and source of accommodations specific public for legislation the 74 blind twenty-five This in states. about in a strange way. has come The have been blind led by the guide dogs not into places of public only but accommodation into right to there. It is not the be say inaccurate to right basic that the join to of men their communities all gain to and access normal to them by the means, of public use the including accom- modations, by the been has gained these states blind in twenty-five as an Civil 09 1964, 78 Stat. Act Rights of U.S.C. § 2000(a) 42 241, 243, (1964). Stat. 241, 255, 42 U.S.C. § 70 (1964). 78 2000(e)-2 CoNG. 2596 (1964). 71110 REc. CONG. REc. (1964). 72 110 2599 73 Stat. 78 241, 265, 42 U.S.C. § 2000(e)-14 (1964). 74AR.x. STAT. §§ 78-211 to 78-213 (1957); CAL. PEN. CODE § 643.5; REv. COLO. STAT. AN. 115-12-9 CONN. GEN. STAT. (1953); § 22-346a (1958) ; FtA. STAT. REV. 413.08 § § (1963); GA. CODE ANx. §§ 79-601, 79-9901 (1964); HAWAir LAWS §§ REv. 109-21 (1957) 109-20, ; CODE ANN. IDAHO § 1965); 39-1604 STAT. Iz. (Supp. ANx. § (Smith-Hurd 2/3, 40a ch. 111 1954) STAT. §§ 16-212, ; IND. ANN. 16-213 IOWA CODE AN. §§ 35.1.30-351.32 1964); (Supp. LA. RFv. (Supp. 1964); §§ STAT. 52 (Supp. 1964); AxN. 51, v. Aix § 54 R MAE STAT. MASS. GEN. (Supp. 1963); § 98A (1956); MIcE. Aw. LAWS STAT. AxN. § 28.770(7/8) Mo. ANN. STAT. § (1954); (1962); N.J. STAT. ANx. §§ 48:3-33, 48:3-34 (1940); 209.140 NM. A.,. § 47-1-7 STAT. N.Y. PaEr. § 518; R.I GEN. (1953); LAW . 39-2-16 AN LAws §§ 39-2-17 to (1956); CODE ANN. § 62-717 TENN. 1965); TEE. Rav. Crv. (Supp. STAT. art. 889a (1948); CODE 4596a, VA. § (Supp. 1964); WAsH. ANN. 35-42.1 CODE REv. 49.60.216, §§ 81.28.140 W. VA. CODE (1962); §§ 2568(l), 2569 (1961). Ai.
15 841 54: [Vol. CALIFORNIA LAW REVIEW to incident their reliance the on dogs and the need them have to exempted from restrictions with regard pets. to Whether the man the takes dog or dog the takes the man be may question a of importance. some There is quite difference a between saying, as California does, for example, that 5 "any blind person" is entitled to have the dog with him or, no "blind person... shall denied be admittance" though he has guide a dog with 76 him; and saying, on the other hand, as New Mexico that does, "no person shall debar guide a dog in . . . any place public of accommoda- tion... provided such dog safely is muzzled and under is the control 7 7 ' person. blind the of Whatever the relative roles man of dog, and the almost universal ban against dogs other and pets in places public of accommodation-a ban no doubt based on good reasons public of health, safety convenience and -had to be lifted favor in of the guide and dog master its its if services 78 were available be to him to in getting about. Since exclusionary the rule against pets is founded not in only practice and regulation but in also 79 legislation, remedy had to be sought the from legislatures. Organiza- tions blind, of the individual guide owners, dog and the management of guide dog schools set work, to jointly and severally, secure to the stat- utes-which now in exist the half states Union-guaranteeing the of the right the of man to take the and dog the dog to take the man into public 0 places and places public of accommodation. In very a few statutes, such as that of Idaho, right the been has effected by simply making an excep- tion the to prohibition that "no cat dog, or other animal be shall permitted in any eating place ,81 ... In most states, however, reliance 75 CAr. PEN. CODE § 643.5 (a). CAL. 76 PEr. CoDE § 643.5(b). 77 N.M. STAT. AwK. 47-1-7 § (1954). 78 For recent examples exclusion of the of a blind person and guide dog from a restaurant Guide see Dog Restaurant, v. N.Y. Times, 1964, Nov. 3, reprinted Braille in Monitor, Jan. 1965, p. 22; from public housing project see, New Orleans Housing Lifts Project Guide Dog Ban, Braille Monitor, Sept. 1965, 38. p. 79 The only case reported concerning the guide dog statutes arose in Texas 1945 in (Boyd v. State, 148 Tex. Crim. 171, 186 S.W.2d 257) the where proprietor a of restaurant denied admission to blind a woman accompanied a by "seeing-eye" because dog of dog. the The proprietor was convicted of violating Texas the statute which primarily relates to carriers, but the conviction reversed was on appeal. The of basis the appellate court's action the was of failure the legislature to include facilities other than conveyances caption in the of act the as required by article III, § the 35 of Constitution. Texas court, The therefore, § held 2 unconstitutional, bill of found but the remaining sections severable. 8oFor general discussions of the use of dogs guide blind by persons, the training dogs of and masters, and the establishment of guide dog schools, CEGNY, see Mv HAVE EYES A CoLD Nosx (1946); Tnz EvsTis, SnMG (1927); EYE H aRTw=, Doos AGAInST DASxwEss (1934) ZA:KE, ; BLrNzSS, ch. 24 (1950). 81IDAHO CODE § ANN. 39-1604 (Supp. 1965). 1965 In Idaho adopted guide dog a statute based on that of California. IAso AzwN. Cona § 18-5812-A (Supp. 1965).
16 1966] THE AND TORT LAW DISABLED placed is in anti-race discrimination legislation which on the formulations classification and which statutory draftsmanship and guide ready to lie themselves relevant in the circum- suggest appropriate as highly and more closely model legislation follows the stances. The Massachusetts many than states, used be illustrate may it but to the point. trunk statute was adopted at the close of In Massachusetts, a the in Civil War 1865.82 color that At and time, race in discrimination public conveyance or of meeting"' "public amusement, places public offense punishable by fine. was original provision has since made an The 84 of been a amended number recently basically most times, and in 1950, religion to the list of forbidden grounds of discrimination and by adding two adding the heart of the modern civil rights by sentences constituting "All shall have the right to formulation: public accommodations persons equal accommodations, advantages, facilities and privileges the full and of public accommodation, resort or amusement, subject of any place law the limitations established by and and applicable to only conditions all persons. This right is recognized and declared to be a civil alike to 8 5 one subsections had been added: other in three Before 1950 right." color or nationality discriminations in employment 1941 forbidding race, 86 on in dispensing public works and the second welfare; public in 1943, as group libel publications intended maliciously to making punishable 8 7 promote group because of its race or color; hatred of and the third, any in declaring, 1938, penal sanctions, under "any accom- blind person guide a and safely muzzled," to be "entitled to panied" dog, "properly by advantages, facilities and privileges of all accommodations, and any all amusement and places of ... public accom- conveyances, public public to persons not accompanied by which are entitled, ... modations dogs to the conditions and subject applicable to all persons only limitations accompanied dogs ... "88 Extra fare for the dog is not to be not by public on charged conveyances. 89 employed in Georgia, Again, Indiana," and Loui- the formulation 1 or loss of by reason who person "Any same: the substantially siana? is 8 2 Acts ass. & Resolves 1865, 277, at ch. 650. 83 Ibid. 8 4 & Resolves ch. 252, at 242; Mass. Acts 1866, Resolves 1885, ch. 316, at & Mass. Acts 774; & Resolves 1893, ch. 43, at 1320; Mass. Acts & Resolves 1895, ch. 461, at 519. Mass. Acts 8 5 GNN. LAWS ANN. ch. 272, § 98 (1959). MAss. 86MAss. GEN. ANN. LAWS 272, § (1959). ch. 98B LAws ANN. GEN. 272, § 98C (1959). 87MAss. ch. 8 8 GEN. LAws ANN. ch. 272, § 98A (1959). MAss. 89 GA. Axs. § 601 (Supp. 1964). CODE IND. 90 ANN. § 16-212 STAT. 1964). (Supp. 91LA. STAT. ANN. § 21:52 (Supp. 1964). Ray.
17 841 54: [Vol. CALIFORNIA REVIEW LAW is accompanied a dog.., used as a leader or of impairment eyesight by guide to is . . . full entitled and advantages, accommodations, equal privileges hotels, lodging places, facilities, public conveyances, of and all of places amusement accommodation, public places and resort, or other which to and is public general the invited, shall be entitled to be accom- . . . panied by such dog subject conditions only the to limitations and not accompanied ... " persons to applicable so statutes are numerous. They relate to: Variations in detail in these blind the or others entitled to the benefits mode of defining the persons 9 3 act; the public of " the accommodations act the which to applies; the 9 4 charging for the dog; presence training, or absence of restrictions on 93 dog; credentialing the master harnessing, and muzzling the leashing 2 All 9 require that the dog the statutes partially blind, with user be blind or the ex- ception Idaho, dog permits of guide which to eating same the trainers access establishments afforded is as the blind user. 93 Seventeen jurisdictions provide the dog-led blind with access to places of public public conveyances (Arkansas, California, Connecticut, in general and also accommodation to Iowa, Georgia, Indiana, Louisiana, Maine, Massachusetts, Michigan, New Missouri, Mexico, Rhode other (except railroad cars theatres), than chair Island New York (except movie trains), passenger on cars Tennessee, Texas, Washington). Five to more provide access public Illinois, Hawaii, (Colorado, conveyances New Virginia), Jersey, two West provide and Virginia), and the remaining eating access to hotels (Idaho, places access only to state, eating note See (Florida). places applicable 74 supra for the statutes. 9 4 Sixteen jurisdictions have provisions prohibiting the exacting of additional charges access the the of because afforded Connecticut, dog guide California, (Arkansas, Georgia, Iowa, Louisiana, Indiana, Hawaii, Maine, Massachusetts, Missouri, Island, Rhode New York, Washington, Texas, Virginia). West In states six applicable is prohibition the expressly to public both public conveyances and places (Arkansas, California, Missouri, Iowa, Connecticut, expressly Texas), to common only carriers applicable five states (Maine, Massachusetts, in Rhode Island, hnpliedly Virginia), West Washington, public applicable to public places and in conveyances four states (Georgia, New York), Indiana, Louisiana, and impliedy applicable only one state, Hawaii. carriers in to See applicable note 74 supra for the statutes. 95 Louisiana requires and the that both the dog at "qualified master be trained a dog training the master to use the particular dog as a guide. None guide enable school," to such statutory the of states extends the right "otherwise the to incapacitated" some is done as in See 378 infra and accompanying text. Eleven states (Colorado, white cane note laws. Georgia, Connecticut, Massachusetts, Maine, Illinois, Missouri, New Mexico, Texas, Washington, that West dog Virginia) require the muzzled. requirement guide be The is mandatory the management in Maine, except where be facility the of charged to may or demand. may not so Seven require states harnessing Iowa, Connecticut, (Arkansas, Michigan, Tennessee, language used in six of Washington, is typified by the Arkansas West Virginia). The these provision which access "when the of provides right properly harnessed ... guide dog said is " Washington, requires harnessing only of "guide dogs" which are The seventh state, entitled public to enter from distinguished as "seeing places, board eye" public dogs, which can conveyances. Only one the state, Idaho, provides that dog A harness would leashed. be need that requirement. Six states require seem that the guide dog be under to satisfy expressly of the control the Illinois, Connecticut, (Colorado, master Jersey, Rhode Island, New Virginia). supra for the applicable statutes. See note 74
18 19661 THE AND TORT LAW DISABLED 9 7 0 0 conveyances; and places in public dog the of custody dog; and the 9 8 the operations to exceptions whether act; the the of act the of benefit a is terms expressed of in the positively conferred right on master and the dog or a negative the on limitation operators places of public of 9 which accommodation; be imposed may breach of and the penalies for 90 Six states "specially trained" require dog be the Maine, (California, Idaho, Louisiana, Texas, of which two Washington) user credentials the require also have for the dog (Louisiana, require the dog guide Six Maine). states credentialed be properly (Connecticut, Tennessee, Maine, Michigan requires the certifying Louisiana, West Michigan, Virginia). school be approved the by Administration Veteran's requires dog Virginia West and the be certificate issued by "The Seeing Eye." Maine identified silent as to the origin of by a is which be required under the statute. the credential may require the Connecticut and Maine upon presented be credential request of the agency charged under the statute. Louisiana provides to operation of the statute is in- be the unless applicable training of is evidence "furnished"--to is or whom not when indicated. inspection the must first present for person the require blind Michigan and Tennessee credentials West Virginia on the dog, and the blind person that only requires accompanied guide carry by prescribed a dog the identification, no certificate of with language requiring upon otherwise. See note 74 supra for presentment applicable statutes. demand the or 9 T Six states make express provisions regarding the custody of the admitted dog Illinois, Connecticut, New (Colorado, Virginia). Island, Rhode Five Jersey, of grant these of the right the master; immediate custody to the Jersey, provides the master New sixth, is to have subject to the rules and custody, but by regulations Board prescribed the of Utility. Public Texas and Washington also provide expressly custody of the dog for the shall conveyances; former providing the carrier the designate where the dog aboard public to ride and is latter the custody to the granting These two have separate master. states public provisions common carriers, the custody in public places is impliedly places for and the granted master. blind and Washington, impliedy grant custody of Nineteen including jurisdictions, Texas to dog the in places person public the blind while of con- accommodatiori and/or public exceptions as noted above (Arkansas, California, Florida, Georgia, veyances, with the Iowa, Indiana, Hawaii, Idaho, Louisiana, Maine, Massachusetts, Michigan, New Missouri, York, Tennessee, Mexico, New Texas, Virginia). West Washington, The implication arises language of the from permitting access to the "accompanying" dog, or that the statute the to allowing user dog "take" The implication with the him. the states in is strongest three which (Georgia, Indiana, Louisiana), dog from occupying the prohibit admitted a seat in See note 74 supra for the public statutes. conveyances. applicable Two provide exceptions to the operation of their statutes where the admission 98 states the dog would involve "danger." Hawaii provides guide exception where the pres- of the of the ence would dog endanger passengers"; New York "other the exception provides where would such create a "tend access to The " Hawaiian dangerous situation... exception, while lacking specificity as is to be apprehended, what danger to the range of the limit does danger, York's exception is not so limited, the escape provision appears too vague while New lend to the statute. New to certainty also motion picture York excepts theatres from the of the statute. Rhode Island's statute excepts all railroad passenger cars other than scope cars, a loss of substantial significance. chair also excepts statute's Hawaii the applicability uncleanliness is unclean. While the statute does not specify where standard of dog the the to exception, essential the exception appear a reasonable the does See note 74 supra one. for the statutes. applicable Seventeen states 99 positive right confer a (Arkansas, California, Connecticut, Florida, Idaho, Indiana, Iowa, Louisiana, Maine, Georgia, Missouri, New Jersey, Massachusetts, Rhode Texas, Island, Washington); eleven Virginia, impose a negative duty on the manage-
19 841 54: [Vol. CALIFORNIA LAW REVIEW 0 0 the act. Among these all variations detail, in however, the substantial formu- lation is generally same: the It formulation the is the of civil acts. rights The strengths and weaknesses of formulation the the are in same one the case as in other the the for meaning is the same. The terms are those of discrimination, that is, of classification and comparison. other If people similarly situated are entitled the to right, then disabled the and are; so are persons of minority race, color, and religion. right The may denied be to all this if is done on terms; equal that if is, the conditions limita- and tions applicable are all, to other or, in words, are made regardless race, of color, religion, disability, guided or being a by dog. But purpose the the of legislation a is purpose with respect to which all people are similarly situated. The right access of to public accommo- and dations common carriers civil a right. is It is a basic right indispens- to able participation in community, the a substantive right which to all fully are equally and entitled. The contradictions basic reconcilia- and tions procedural of and comparative phraseology, the on hand, one and fundamental the substantive rights, other the on hand, implicit and 1 1 explicit in the fourteenth amendment are here repeated. ' Thus, while the dog guide statutes focus the on immediate problem gaining of access persons by with guide and dogs their of right access is declared to be the same as for those without dogs, and while, accordingly, no particular mention is made of the right of access those of without dogs, yet their right is presupposed, implicit and assumed and hence is incorporated within benefits the conferred the by act. right The of all blind persons, ment the of (California, facility Colorado, Hawaii, Illinois, Michigan, Mexico, New New York, Rhode Island, Tennessee, Texas, Washington); Virginia West and imposes a positive on duty the management of the facility to give access dog-led the to blind. California and Rhode Island expressly confer positive a right on the dog-user in the and, same section, impose the correlative duty negative the on facility express in terms; Texas and Washington have each separate statutes each for two the of of types facilities. The Texas provisions are conferral a of a positive right on the blind respect with to public conveyances and an imposition of a negative duty the management on the of facility respecting public places. The Washington statutes are exactly opposite, positive the right relating public to places and negative the to duty public conveyances. note See 74 supra for applicable the statutes. 10o Nineteen states provide penalty a for the violation of statutes the (Arkansas, Cali- fornia, Connecticut, Florida, Georgia, Hawaii, Indiana, Iowa, Louisiana, Maine, Massachu- setts, Michigan, New Missouri, Mexico, York, New Island, Rhode Tennessee, Texas, West Virginia) of all which misdemeanors. are It should be noted that inclusion the a of penalty provision does necessarily not relate to provisions all of the statute; Rhode hence Island's provision penalty is applicable only to the denial the of blind's right to be accompanied by the guide dog public aboard conveyances elevators. and See note 74 for supra applicable the statutes. 101 See HAns, THE QuEsT rOR EQuArry (1960); TENBROEX, EQuAL, UNDER LAW (1965).
20 19661 THE AND TORT LAW DISABLED more generally, all disabled persons, to the use of public accom- and of by these acts. consequentially safeguarded modations is therefore of the in twenty-five states, with their these Moreover, existence acts explicit assumptions, implicit avowals and by the supported right of use people public accommodations and common generally to the of reasonably might carriers, a sufficient be taken as of declaration public right to found judicial decisions in the other policy fundamental and right disabled the the to full and equal access to of states vindicating these instrumentalities necessary of community life. Ultimately, indeed, be seen as a mandate of the equal protection clause of the such may amendment. fourteenth Barriers B. Architectural legislation Guide to safeguard rights of access to and is dog intended carriers public accommodations. The legislation common and use of the purpose br declaring the rights, in seeks at least to accomplish form comparative and prohibiting the basis, denial or a on discriminatory withdrawal The legislation deals only with one group of the of them. the a group otherwise able-bodied and perfectly capable disabled: blind, stairs once passing through narrow doorways mounting they find of and legislation The in the guide dog employed is inadequate on them. formula face to deal with the its general problem architectural of Archi- barriers. are defined by the American Standards Association as tectural barriers "the common and construction of buildings and features of design cause facilities [that] problems the physically for that handicapped the and gains now evident in social rehabilitation of the lessen economic [that] make it very difficult to project the physically these individuals... normal situations of education, recreation, and employ- handicapped into 0 2 rights the disabled, too, have that of access Simply declaring ment."' and forbidding building operators to and them would do little use deny the chair-bound paraplegic physically denied wheel to and use for access flights of stairs and of doorways. Moreover, prohibiting the in- narrow stallation such barriers would not do the trick. A more constructive of affirmative approach required. Buildings and facilities must be and is STANDARDS FOR A ERICAN STANDARD SPECIFICATIONS A.iucA MAXING 102 Ass'N, BULDINGS AND FACILInES AND USABLE AccEssBLE TO, PaysicALIY HANDICAPPED BY, THE 3 For some of the growing literature on architectural barriers, see (1961). GoLDsMra, DESIGNING THE DISABLED (1963); id. at 226-36 (Bibliography); Nugent, Design of FOR to Buildings their Use by the Physically Handicapped, Permit Building Fall, New Research, p. 51; Caniff, Architectural Barriers: 1960, Personal Problem, 108 CONG. RFeC., app. 838 A (1962).
21 841 54: [Vol. CALIFORNIA LAW REVIEW according erected account taking design to a making of and disabled the and buildings facilities functional and them to accessible them. for Specifications prepared do intended this were to American the by Standards 13 Association in 1961. They in consultation were developed with a large number of concerned private government officials, agencies programs with groups the for disabled, the disabled of and themselves, relevant business and professional associations. Principal sponsorship, however, the National came from Society and Children Crippled for and Adults the Committee on President's Employ the Physically National Handicapped Week. The specifications include: wide suitably and located 0 4 cars for places parking the least one of the at disabled;" ground level 1 ramped or entrance;- can be doors wide 0 that opened single a with 0 6 effort" with and enough neighboring space level floor wheel for chair 7 10 108 maneuver; single level stories or ramp-connected levels; toilets, 0 9 110 dispensers, towel mirrors, fountains, drinking and public tele- phones"' proper of the height be reached to wheel from chairs; identify- features ing enabling particular the blind find to rooms;"I auditory as 3 1 as well visual signals; open manholes, access panels, and excavations buildings the in and the grounds on barricaded least at eight feet from 4 hazard the and and, " devices warning used; on prohibition a low- n or protruding hanging closers, door and signs, The fixtures." specifica- tions are not intended for public only buildings and facilities, but for buildings any generally and facilities used the They are public. by ap- plicable in remodeling structures present well as as new in construction. While would the specifications the necessity a seem for disabled confined chairs wheel to and less only those so for crutches on and are braces, they also estimated of for the importance Ameri- million five with mobility impairments cans The of other sorts. Standards list among the direct beneficiaries "non-ambulatory those with disabilities," "semi- ambulatory disabilities," disabilities," "sight "hearing disabilities," "dis- 0 3 AEiCAN A2 Ass', op. STANDAims note cit. supra 102. 0 4 4.3.2. 1 at Id. § 0 5 4.1. 1 Id. § at 0 at § 5.3.1. 6 ' Id. § 5.3.2. 1o7 Id. at 0 8 1 Id. at § 5.5.2. at § 109 Id. 5.6. 5.7. § at Id. 11o 111 at § 5.8. Id. § 5.11. 112 Id. at 3 11 Id. at § 5.12. 114 Id. at § 5.13.2. Id. 115 5.13.3, §§ at 5.13.4.
22 1966] THE AND TORT LAW DISABLED h of and "those manifestations of the aging abiltities incoordination,"'1 significantly processes that flexibility, reduce mobility, and coordination, perceptiveness different and ,,11 ... The sometimes contradictory needs groups the illustrate of these fallacy of treating the disabled single a as homogeneous class for all purposes. are the Although all disabled helped the crippled by eliminating stairs, are helped far more the deaf. than Manholes, excavations and panels access peril are the of greatest for blind hazardous for are but also require The all. visual deaf signals no which are of and vice for use the blind signals. auditory versa for The paraplegic must and have special toilet and washroom facilities arrangements, while blind care- couldn't the mirror less where the is the persons For located. wheel chair and in the the cripple, site mobile a is best level which developed is and other without and curbs abrupt changes. For the blind, level, large, open plazas other areas and around and without buildings, among discernible landmarks such as curbs well-defined be traversed only by dead reckoning. and can walks, To acceptance specifications of secure the architects, by builders, and operators, owners, Society the Crippled National for and Children Adults the President's and Committee the Employ on National Physi- cally Handicapped Week established the steering committees in various They, states. together with others, put on national campaign. an active, a remarkable As result, been in has progress made Architec- five years. barriers has tural legislation been adopted in twenty-one A states."" national commission architectural barriers on rehabilitation the of to the established was handicapped Department of 1965 in the in Health, Edu- Welfare focus and cation, to the on attention national problem and to 9 advise, demonstrate." study, consult, and The relevant professions, in- unions, dustries, and interests have been other the made acquainted with "OId. § at 2. 117 Id. at § 2.6. i18 'Tenn. State To Pass Architectural Becomes 21st Legislation." Barriers Performance, p. Dec. statutes 3. 1965, Available Concurrent Assembly are: Calif. No. 19 (1965 Resolution Public Reg. Sess.); Conn. (Feb. 1965, Spec. Sess.); 216 No. Act FLA. 255.01, as STAT. ch. by No. 109, ch. 65-493 amended S.B. 1965); R 1, v. STAT. AEN. ILL. (July § 11 111, ch. (Smith-Hurd, 1965); Supp. IowA CODE (Sen. ANN. 352 Supp. File 1965); MAss. GENr. LAWS § 44c 149, (Supp. ANN., ch. 1965); 73.57-53.61 ANN. STAT. MmiN. §§ (Supp. 1965); MONT. §§ ANN. REV. CODE 69-3701 to 69-3719 (Supp. 1965); Neb. Sess. ch. 430; N.H. Laws 1965, STAT. Rav. 155.8-a, AiN. 8-b §§ (Supp. 1965); N. ch. 67, MEx. STAT. (Supp. 1965); 16-18 § N.D. CODE ch. 48-02-18 1965); (Supp. Rav. CODE Oiro ANiN. 3781.111 (Supp. 1965); § STAT. ANN. 61, § 11 (Supp. OxLA. tit. STAT. §§ PA. 1455.1-1455.4 1965); Ai. 1965); (Supp. GEw. LAWS AxN. R.I. 37-8-15 (Supp. 1965); S.C. CODE § 1-481 §§ 1-490 (Supp. 1965); to STAT. Wis. §§ 101.305, 101.306 Aim. 1965). (Supp. 79 Stat. 119 29 U.S.C. 1282, §§ 31-33 (Supp. I, 1965).
23 841 64: [Vol. REVIEW LAW CALIFORNIA simple and the relatively barriers problem of architectural of nature the 2 ° of levels The it. to reduce required features design inexpensive and with and, sponsorship, official persuasion, been private thus have attack mandate. legislative facilities, and buildings to public respect of the the work on reliance is state statutes of the feature central *The among divergence principal the Indeed, Association. Standards American outright specifications the they copy which extent to the is statutes the having statute-and, typical fairly A by reference. them incorporate or Massachusetts, that of ones-is earlier of the one in 1962, passed been booklet the with conform "shall buildings that public provides which and buildings making for specifications standard 'American entitled ap- handicapped' physically the by, usable and to, accessible facilities October on Incorporated Association, Standards American the by proved 1 2 2 South and Montana one.""' sixty and hundred nineteen thirty-first, 3 2 stood, it as the booklet enacted practically other hand, the on Carolina,. statutes state The footnotes. explanatory including of to point the even cov- and facilities buildings of the types as to themselves among differ and enforcement, of agencies and methods exceptions, permissible ered, dele- are agencies administrative when hearing public for requirement a the Most of of regulations. by way standards to establish authority gated "[A]l1 Connecticut: in used formula the of a variant statutes accept the state by repaired or remodeled constructed, and facilities buildings when agents its or state the of subdivision political any by or its or agents 4 2 require- its applies Wisconsin involved.' is interest state or funds state or buildings state-owned including buildings, "any public to ments . The . . buildings. mercantile and . . . projects housing public Specifications- Standard in the American provided clause excepting "cases of practical difficulty, unnecessary hardship, or extreme differ- that is buildings of public charge in those by compliance of voluntary An example 120 make to campuses its of all for plan a approved which has of California University the of CALInoPNIA, or UNIvERsITY e.g., See, by them. usable and disabled to the accessible them of University 5-6 (1960); 8.01, at § MANUAL AND ENGINEERS ARCarTECTS BER=EEY, May 24, Students, Handicapped Physically for Considerations Design Building California, been have there the blind, disabled, of the group one at to least respect Indeed, with 1963. Los Angeles and Berkeley the years on past twenty-five least at the for facilities special campuses. 662. 1962, ch. Acts Resolves Mass & 121 1965). (Supp. to 69-3719 69-3701 §§ ANN. CODE REv. MoNT. 122 1965). 1-490 (Supp. 1-481 to CODE §§ 123 S.C. Sess.). Spec. 1965, (Feb. 216 No. Act Conn. Public 124 houses, apartment excepts: Specifically (Supp. 1965). 101205 § ANNr. STAT. WIs. 125 all hothouses, hangers, garages, of detention, places other or jails and monasteries, convents field for built buildings specifically and state occupancies, hazardous as classified buildings tree hatcheries, fish towers, fire conservation to limited not as but such purposes, service warehouses. and buildings nursery
24 196 THE AND TORT LAW DISABLED require only in the state statutes to -- liberalized ences 2.-is generally 2 7 "substantial conformity' or conformity "in so far as feasible and 2 most of the statutes about in Little said is reasonable."' financially responsible are iden- the administrative officials Usually enforcement. 9 or that construction provides more." Minnesota not much but tified hereafter be by the state "shall not owned public of buildings remodeling approved have been and plans specifications.., the commenced... until specific and drastic: is Wisconsin's provision marshal."' by the fire this to of requirements meet the any building who of fails owner "The same by mandatory injunction be required to reconstruct the may section shall person interested by any Such person. circuit brought suit in court a plus such for costs and disbursements all if reimbursed, be successful, 3 M court. the by allowed be may as fees attorney actual the Streets Struggle for C. The well as crutches as his beggar on for are the "Public thoroughfares 3 2 purpose of sidewalks in limousine.'M ordinary his "The the millionaire aged, the and by the very young blind, the their includes and use streets to woman. For such persons pregnant and the infirm, and the the cripple '1 3 negligence. is not contributory streets the use is it said, as a public place where, in appear disabled Once the do With presence? their of conditions the are a be, to right have what they endow them? What are phrases and liabilities do these what freedoms others of and others, toward themselves, toward their responsibilities the right of the to as use the streets same them? Is the right toward all liable for acts or acci- the are If disabled passage? safe reasonably and able- disability, if public bodies their caused by proximately dents as to same relationship to them the exactly stand in persons bodied Ass'N, op. cit. supra note 103, at § 1.2. 120 A. E eI r STmIDARDs 2 Msm § 67-16-18(B) (Supp. 1965). STAT. 7N. 3 1 2 8 the administrators (Supp. 1965). In Rhode Island 11 tit. 61, O xA. STAT. ANN. § the American Standards standards promulgated by only into consideration need "take 1965). (Supp. GEN. LAWS ANN. § 37-8-15 .' ... Association R.I. ch. Neb. 1965); Sess. Laws 1965, (Supp. CODE REv. AiN. tit. 69-3719 E.g., 129 MoNT. 1965); (Supp. 61,512 tit. Awm. STAr. (Supp. 1965). OxIA. 8-b STAT. ANN. REv. NH. 430; ch. 1965). § 1-49 (Supp. 1965); § CODE S.C. 1455.3 (Supp. STAT. ANw. 71, PA. tit. 13 0 Mnr. ANN. ch. 73-60 (Supp. 1965). STAT. 31 public hearings (Supp. 1965). For states requiring § Am. STAT. Wxs. 1 101.305(2) Public Conn. 1965); § Wis. STAT. ANN. see, 101.306 (Supp. e.g., standards issuance before of No. 216, § 2 (Feb. 1965, Act. Sess.). Spec. denied, Pac. rehearing (1928), 734 271 733, Wheeler, 413, 406, Ore. 127 v. 132Weinstein Ore. 296 Pac. 1079 (1931). 518, 135 163 157, Cal. 38 358, 349, Rptr. Cal. App. 2d Angeles, 226 of City v. Los 183 Garber REV. L. CAL. So. 7 Tort in Liability in California, (1964), Municipality David, quoting 372, 452 (1934).
25 841 54: [Vol. CALIFORNIA REVIEW LAW persons, able-bodied if, is disability words, other in into to taken not be consideration for purposes these positively as so protect the to disabled against major hazards if harms-then not minor right the public to be in best is places Shakespeare: by described these .juggling And be fiends no more believed That palter a with in us double sense; the That keep promise word of ear, our to 134 And break hope. to it our would This the indeed requiring blind be to some- his at see man peril, that thing Oliver Holmes Wendell told us a time long ago be to not is 8 5 In done. these circumstances, every the trip to mailbox or store, every stroll the in sun, every congregation one's with every neighbors, a of catching school bus to go to work-all or the ordinary and routine transactions daily of safely life conducted the by the rest community of public in a as places matter course-would of be conducted the by dis- great at abled such hazard; hazard great in fact as to encourage, if not to make necessary, their custodialization. To live presupposes world in the toward progress goal of integration. a The judicial to answers questions posed the have above the come in of form rules on substantive special the disabled collected under the rubric of law of the The negligence. and courts textwriters prefer say to not that the standards are one or special different but and the same for 6 everybody.' is the It circumstances to which the standards apply that and special are different, a mode expression of a giving sense rhetorical of integrity. However, the differences important, are they whether said are 8 7 the standards, in be to the children,' of case as in the in circum- or 88 stances which to standards the the in apply, as the disabled.' case of first Negligence appeared as independent an tort or civil wrong for which courts the would allow for an action the damages in century 19th a time at when the industrial revolution, and particularly develop- the 134 Act V, MAcBETH, scene 19-23. lines viii, TnE Hoirz.z, 135 Co 109 LAw roN ed.). (1923 3 6 Fenneman 1 75 Holden, v. 1049 Md. 1, 22 At. (1891); Jakubiec 337 v. Hasty, Mich. 205, 59 N.W.2d (1953); 385 v. Feinstein, Davis 370 Pa. 449, 88 A.2d Fletcher (1992); 695 Aberdeen, v. City of Wash. 54 P.2d 743 174, 2d 338 2 (1959). HARPER & JAMES, TORTS TORTS (1956); § 16.7 § PROSSER, 32, RESTATEMENT 1964); at 155 (3d ed. TORTS (StcoND), 283c (1964); 38 § JuR. Am. NEGLIGENCE (1941). 210 § 17 In 1841, the in case of Lynch v. Nurdin, L.R., Q.B. 1 29 (1841), the Queens Bench laid doctrine the down basic in respect to care the standard of children-it required of was reasonably a of that prudent child years of and its development, not reasonably a of that adult. prudent 138 FLEMx (3d 249 TORTS G, ed. 1965); 2 HARPER JAmEs, & op. note cit. supra 136, at § 16.7, PROSSER, 923-24; op. supra 136, cit. note 154-57; 32, § at (SEcoNP), REsTATrMET ToRTs § 283c (1964),
26 19661 THE AND TORT LAW DISABLED crop of acci- beginning to produce a heavy of ment was the railroads, 39 to its law of negligence is still true to injuries The the person.' dental a multiplied factors, same sorts of the today by dominated is origins and industry of modem capacity the accident-producing by thousandfold Not traffic. of automobile all, by conditions above and life, urban and disability- of deal great of a causes the very these factors are only and give rise constitute they cause-but major is still the disease though from disabled those already for life of hazards ever-increasing new to and whatever cause. second Restatement doctrine, the accepted the generally Summarizing the which "conduct falls below Torts of defines negligence as of the Law un- against others of protection for law by the established standard 14° light in be judged the harm is to of risk The of risk harm." reasonable its extent and as well as occur will harm that the likelihood the of the char- balanced against be then to is risk, so judged, The severity. feasi- the and risk the creating of conduct the and importance acter 41 harm The of risk it. against providing protection burden of and bility conduct the and second the outweigh factors the first if is unreasonable conduct is care." "due This be lacking in to then is it said creates which is It engage. not does prudence ordinary of man reasonable the which in circum- to special say the courts as the formula, applied this by general define to sought have that the judges physically disabled, of stances the pose judges The the world. in right live to their of scope nature and the dis- the risk and the who create for those alike question critical the as in like ordinary prudence man of a reasonable Would run it: who abled 4 2 plaintiff the only if disabled It is either? done have circumstances that the cost not does defendant and the of conduct standard meets this to will be allowed Otherwise, it the upon latter. be will placed injuries of lie falls. where it dis- the which in the circumstances in element an is disability the If are circumstances in the all elements and if himself, finds abled person regulat- in man prudent by the ordinarily weight proper be their to given considera- into taken be to disability is person's a then conduct, his ing supra note 2 HARPER & JAMES, op. Cit. 107-08; op. cit. supra note 138, at MNG, FLE 139 § 28, at 142-43. 136, note op. cit. supra at PROSSER, 751-52; § 12.3, 136, FLEMaNG, op. cit. upra § TORTS 282 (1964). See also (SEcoND), 140 RESTATEmENT PROSSER, 16.2; 16.1, §§ at 136, supra note cit. op. & JAis, at 110; HARPER 2 138, note §§ 30, 31. at supra note 136, op, cit. Q. & B. (2d Cir. 1947); Chicago, 159 F.2d 169 Co., Carroll v. Towing States United 141 at 136, note supra cit. op. 880 PROSSER, (1902); 65 N.V. 91 889, Neb. Krayenbuhl, v. R.R. (1964). TORTS (SEcoND), §§ 291-93 151-82; RESTATENMNT 283 TORTS § (SECOND), RESTAIMIENT 136, at 154; op. supra cit. note 142PRossER, (1964).
27 841 64: [Vol. CALIFORNIA LAW REVIEW in determining tion for liability injuries. this proposition, In and English 3 American courts today unanimously agree. Prosser Dean summarizes the conclusion by saying that disabled the person entitled is "to have allowance made by for others disability"; his and in turn, he must act reasonably light the "in his of knowledge of his infirmity.., treated... 1 44 merely as one of circumstances the under which he acts."' "Allowance made ... for disability"; how, to what extent, in circumstances, which whom? by to As these issues, courts the are in strong disagreement. The disabled person, Dean says Prosser, "cannot be required the to do im- meet.'1 cannot he which standards to physical conforming by possible Quite so! But right the if in live to world the consists of only exemption from this requirement, its proclamation may a cruel be To hoax. what requirements they may subjected: be to sally forth the in only care of an attendant? use To dog a guide? as To a carry cane, and so, if any of particular sort, and employed be to in any pirticular way? To travel only familiar in streets and places? Not to enter streets and places known be to defective or where being work is done? Not to enter streets and possibly places presenting particular traffic hazards? proceed To at his peril, because however carefully he may travel others need not anticipate his presence and take precautions accordingly? The courts are divided to as the answers to each every and of one questions; these and rhetoric the even is more than varied answers. the The majority courts of say that it is not negligence per a se for blind 40 1 man to walk the without streets a companion or attendant; others 4 that may he so do only in certain circumstances. T Some say it that is contributory negligence as matter a law to of travel without cane, dog, or E.g., 143 Page, v. Muse Conn. 125 219, 4 A.2d (1939) 329 v. ; Shields Consol. Gas Co., App. 193 183 86, Div. Supp. N.Y. 240 (Sup. Ct. Cook 1920); Winston-Salem, of City v. 241 N.C. 422, 85 696 S.E.2d Weinstein (1955); v. Wheeler, Ore. 127 Pac. 271 406, (1928), 733 rehearing denied, 135 518, Ore. 1079 Pac. 296 (1931); Feinstein, Davis v. Pa. 370 88 449, A.2d 695 (1952); v. Sneller, Smith 345 Pa. A.2d 68, 26 (1942); 452 Fletcher City of v. Aberdeen, Wash. 54 2d 338 P.2d 174, 743 (1959); Haley London v. Elec.  Bd., A.C. 778 (1964). 1 44 PROSSER, op. supra cit. note § 136, 32, at 155; FLxmmo, op. cit. note supra at 138, 116-17, 162-63; HARPER 2 & JArEs, supra cit. op. 136, note § 16.7, at 920-21. 145 PROSSER, op. cit. supra note § 136, 32, at See 155. RESTATEMENT also (SECoND), TORTS § (1964). 283c E.g., 146 of Town v. Salem Ind. 76 Goller, 291, 292 (1881); Balcom City v. Inde- of pendence, 178 Iowa 696, 685, N.W. 160 305, 310 (1916); v. Kaiser Bros., Hahn 126 Iowa, 561, 563, 102 N.W. (1905); 504, 505 v. Neff Wellesley, of Town 148 Mass. 487, 20 495, N.E. 111, (1889); 113 Smith v. Wildes, 556, Mass. 143 559, 10 N.E. 446, 448 (1887); v. Hestand 218 Hamlin, 122, App. Mo. 262 127, S.W. 397 396, (1924); Sleeper v. Sandown, 52 N.H. 251 244, Davenport (1872); Ruckman, v. 37 N.Y. 568-73 568, (1868); v. Fletcher City of 54 Aberdeen, 2d Wash. 174, 178, 338 P.2d 743, 745 (1959); Masterson v. Lennon, 115 Wash. 305, 308, 197 38, Pac. 39 (1921). 1 47 Florida E.g., Cent. R.R. v. Williams, 37 406, Fla. 20 So. 558 (1896).
28 19661 THE AND TORT LAW DISABLED 1 4 others, the failure to use one or more of these travel companion;. that due to whether care was em- the as a jury question for presents aids 1 49 that a blind man may not, when taking the ployed. courts No say however, territory; most courts, enter precautions, unfamiliar proper fre- the and surroundings the of knowledge plaintiff's the emphasize plaintiff's knowledge that the Some say that quency of his presence.' as- of creates or dangerous kind a streets defective be may or are the others, that in the sumption the disabled of risk;' circumstances, proceed must do so with due care in the light of his person may but 5 2 to also applied by some courts is blind per- knowledge. latter The rule simi- of places like crossings, and street at depots, railway sons in railway 5 3 negligence say that while is gross others for blind persons lar danger, it 5 4 such places alone. Some to courts say that the disabled may be in highways and are kept in a the streets assumption that the upon proceed condition, reasonably cities and abutting property owners and safe that and disabled abroad in the land be accordingly must must expect to the 55 Others warn protect them. to otherwise take precautions necessary or and streets the or tamper with maintain, who those that create, say the under a passageways to safeguard only able-bodied are public duty 0 pedestrian.'" have held or even darkly hinted that a blind No may rise courts man Id. 419-20, 20 So. at 561-62. 148 at v. v. Pa. 68, 72, 26 A.2d 452, 454 (1942); Fraser 345 Freedman, 87 Sneller, Smith 149 454, 457 (1926). Super. Pa. Balcom v. City of Independence, 150 Iowa 685, 696, 160 N.W. 305, 309 (1916); E.g., 178 240, Neff (1908); 621 619, Atl. 68 237, Md. 107 Lysher, v. Co. Tel. Potomac Chesapeake & Town of Wellesley, 148 Mass. 487, v. 20 N.E. 111 (1889); Smith v. Wildes, 143 Mass. 489, 556, 10 N.E. 446, 448 (1887); Hestand v. Hamlin, 218 Mo. App. 122, 127, 262 559, 396, 397 Sleeper v. Sandown, 52 N.H. 244, 252 (1872); Davenport v. Ruckman, S.W. (1924); 568, 573 37 N.Y. (1868). ; Cook v. 686 Colo. 358, 360, 70 Pac. (1902) 30 v. Durango, of Garbanati City 151 E.g., 241 N.C. 422, 430, 85 City 696, 701-02 (1955). of Winston-Salem, S.E.2d 152 Hestand .g., v. Hamlin, 218 Mo. App. 122, 262 128, S.W. 398 396, (1924); Marks' Petersburg R. Co., 88 Va. 1, 13 S.E. 299 (1891). Adm'r v. e.g., See, v. Norfolk & W. Ry., 14 F.2d 93 (4th Cir. 1926); Rosenthal v. 153 Farley A.R.R., York IMI. 552, 556, 99 N.E. 672, 672-73 (1912); Lortz v. New & Cent. Chicago 255 7 40 Div. 515, 522, H.R.R., N.Y. Supp. 253, 257 (1896). & App. 5 4 Florida 1 Cent. R.R. v. Williams, 37 Fla. 406, 419, So. 558, 20 (1896). 562 B.g., 178 v. City of Independence, 155 Iowa 685, 693, 160 N.W. 305, 308 (1916); Balcom So. 741-42 (1908); Sleeper v. Sandown, Co., Constr. 120 La. 831-33, 45 v. Rock American Supp. 90, 183 N.Y. App. Consol. 86, 193 Gas Co., Div. (1872); Shields N.H. v. 244, 245 52 of (1868); N.Y. 568-73 Fletcher v. City Davenport Ruckman, 37 (1920); v. 242-43 240, 54 Wash. 2d 174, 179, 338 P.2d 743, 746 (1959); Masterson v. Lennon, 115 Wash. Aberdeen, Pac. Spokane, 41 Wash. 257, 261-62, 83 Pac. Short 38, 39 (1921); v. City of 308, 305, 197 778, 185 v. London Elec. Bd.,  A.C. Haley 790 (1964). (1906); 183, v. Carter (1924); 397 396, App. 122, 127, 262 S.W. Mo. Hamlin, v. Hestand 15G 218 of City v. Cook (1900); 1061 1059, 66 Supp. 504, 501, Div. App. 55 N.Y. Nunda, of Village 241 N.C. 422, 428, 85 S.E.2d 696, 700 (1955). Winston-Salem,
29 841 54: [Vol. CALIFORNIA REVIEW LAW the the children off to school, bid his wife goodby, in morning, get help along proceed and the streets daily and lines to his bus dog, without work, guide, cane, if is his or such and now preference, or habit brushing then or kicking a tree curb, a notwithstanding, proceeding but, with step firm and that sure air, knowing for whom is part of the he public the streets maintained are built and in safety, reasonable of taxes, help the by his that he shares and the this with others part of has too, he, which in world to then a He live. right would doing reasonable, be any what or prudent, reasonably or would man blind prudent policy and also do, social what must positively developing judges their foster and in must law common alert sustain. be to What were these blind plaintiffs doing highways in the streets and they were when very is injured? The answer They instructive. were what doing people do other In live the in who world. the two leading 15 7 Washington going they cases, were piano as work from and to tuners; had stopped at a store, made a purchase, in Massachusetts, a piano tuner 8 and was going down on Pennsylvania, the in street;"" door-to-door a ° salesman in of small household items was course of canvassing houses; ' New in door-to-door a salesman York, was returning home from the 160 meat down the market street; London, a in telephone was operator following going to his daily routine of work;'' Independence, in City of on Iowa, a businessman was and from the usual his path to business part 1 6 2 town; of a in New Hampshire, passing farm a hand was along familiar good hire... road, man "a to wood, chopping for.., felling trees, mow- threshing reaping, ing, potatoes, grain, digging and hoeing, planting 6 although the time first with difficulty Town ' in hoeing corn"; Spirit of was plaintiff the Iowa, Lake, the only taking walk available to church;"' Carolina, in North the Sunday a making was plaintiff afternoon to visit 165 friend; Vermont, a in on the plaintiff, riding along wagon jaunt a in a two and fellow another with public got women, out on the in the highway 66 dark of night almost Moreover, to urinate. had one all of these plaintiffs of v. 157 Fletcher City Aberdeen, 338 743 (1959); 174, 54 Wash. P.2d 2d Masterson v. Lennon, Wash. 115 305, Pac. 38 (1921). 197 Wildes, 143 Mass. 556, 10 N.E. 446 (1887). 158 Smith v. v. 159 Smith 68, 26 Sneller, Pa. 345 452 A.2d (1942). 160 Shields 193 Co., Gas Consol. App. v. Div. (1920). 240 86, 183 N.Y. Supp. Haley 161 London Elec. Bd., v. (1964). 778 [19651 A.C. 6 2 of Independence, 1 Iowa 685, 178 N.W. 305 (1916). Balcom v. City 160 Sandown, 163 Sleeper v. 52 NfH. 244, 245 (1872). 6 4 1 Yeager v. Town of Spirit Lake, 115 Iowa 593, N.W. 88 1095 (1902). Cook 165 Winston-Salem, of City 241 v. 696 S.E.2d 85 422, (1955). N.C. 166 Glidden Reading, Vt. of Town v. 38 the restaurant (1865). 52 Missouri, In operator to other walking was for supplies as he usually of parts town times day. did several each 218 Hamlin, Mo. Hestand v. S.W. 396 (1924). App. 122, 262 In Iowa case, Glenwood, the
30 19661 THE AND TORT LAW DISABLED the "common, compensatory devices for the blind a of well-known, 7 6 1 companion. a or dog, seeing-eye a cane, the discussion revolved around these principal The cases in has an topics: the blind analogy between man the and daytime the in seeing man that at night; the likelihood by come the disabled will and be or the negligence taken of to be contributory injured; or precautions disabled person to prevent injury taken the light of his dis- by the in practicability cost to the city, contractor, or property ability; the and the of reasonable proportions. owner to risk reducing Analogy 1. The opinions dealing with the blind The the near-blind early leading and with analogy built on sighted an conceptions of preoccupied are persons' is shutting off the vision as blindness: a blindfold or a Blindness by dark This being so, and assuming the right of the blind perfectly night. the streets all, should not the law assimilate their daytime to travel at of In seeing man at night? that the early and much situation to the 6 8 York quoted New Ruckman, case of Davenport v. said: court the and sidewalks are for the benefit of all conditions of people, The streets have all right, in using them, to assume that they are in good and the to their conduct upon that assumption. A and regulate condition, walk or drive in the darkness of person night, relying upon may the belief the corporation has performed that duty and that the the its or the walk is in safe condition. He street by a faith justified walks 169 ... law by was the of a person with some sight who, traveling along the This case the daytime, fallen into an unguarded cellarway. Four years walk in had Court the New Hampshire dealt with Supreme case of a later, the of person totally blind in the who, also traveling off fallen daytime, had fourteen to sixteen feet wide, the railing on one side of which a bridge longer is It no immaterial, the plaintiff's attorney argued, was present. ' 170 want want of light or for of sight. accident the happened "whether "helps his wife in laundry work for their neighbors, and the on occasion plaintiff has aid the county . . . received from assume court it could "fairly The ." thought he felt that hurt of his bruises the none the less keenly than he would had his balance in [the] . . . bank larger." Hill v. City of Glenwood, been Iowa 479, 100 N.W. 124 485, (1904). 524 522, the man who sewed brooms was leaving the sheltered workshop at the Mary- In Maryland, living for Blind and returning to his the quarters. Chesapeake & Potomac Tel. School land v. Lysher, 107 Md. 237, 68 Atl. 619 (1908). In New York, the Co. owner was returning store home business, crossing a creek in a scow. Harris v. Uebelhoer, 75 N.Y. 169 (1878). from E.g., 72, v. Sneller, 345 Pa. 68, 167 26 A.2d 452, 454 (1942). Smith 16837 N.Y. 568 (1868). 169 at 573. Id. Sleeper v, 170 52 .N_, 244, 250 (1872). $andown,
31 841 54: MIo. CALIFORNIA LAW REVIEW Quite "Blindness said so, court: the negligence. is itself of not Nor [is] passing upon the highway with the sight of external things cut by off physical incapacity of vision ... any more than passing upon the high- way when the same things are wholly obscured by the darkness of 71 night.") "[T]his plaintiff, although blind," the court added, "had the same right to assume the existence of a on rail each side that any traveller, passing either in the daytime or the in night-time would 2 7 1 ... have In the 1916 Iowa case, which has the led way many for states, the analogy of blindness to lack of light was given great weight the in case of a totally blind man who, again traveling the in daytime, fell into an unguarded seven-foot deep watermain ditch he as crossed the street."" The city was bound make to it safe the for sighted to pass at night when the sighted are blind. "[R]equiring a light for him who can see when there a is light proves that there a duty is to protect those who for any 2).174 ... see cannot reason While this analogy is basically weak in portraying the as same the travel problems the of blind and the sighted the in dark, it did prove a valuable starting point for the courts in seeing that the duty of the de- fendant is not confined to the able-bodied. Its logical, or perhaps more accurately, psychological, its role was historic thus the in process of imposing upon cities and abutting property owners an obligation to maintain the streets, highways, bridges and other public places in a con- dition safe for the disabled traveler-and this in an age when the courts were acutely concerned about keeping in hand judgments of plaintiff- minded juries in the interests of free enterprise and unencumbered indus- development. trial While utilizing the analogy for this basic function, moving, and one feels, from humanitarian rather than policy considerations, the courts were not hindered by its difficulties or misled into many of its bypaths. If the daytime care the city owed the blind was the same the as night- time care it owed the sighted, then: providing lamp a should amply warn or illuminate; the use compensatory of travel would aids not be emphasized, unless perchance the sighted night, at in view of their un- fortunate affliction, were to required, be threat on of contributory negli- gence, to one use of those well-known compensatory devices for men in attendant.11 blind a cane, a seeing-eye cat, or a as light, want of such 7 1 3 Id. at 251. 72 1 Id. at 252. 173 Balcom v. City of Independence, 178 Iowa 685, 160 N.W. 305 (1916). '74 Id. 691, at 160 N.W. at 308. 175 Bussell v. City of Fort Dodge, 126 Iowa 308, 101 N.W. 1126 (1905).
32 19661 THE DISABLED TORT AND LAW the night the sighted would be put upon an identical footing. blind At and fact The lanterns that placed an about excavation not will the make passage for safe blind a man, said Iowa the is court "adventitious." "Concede that there must a light be those for who have eyesight, when without the the eyesight light would be no protection, follows and it that there to is a duty guard those cannot who see, a though light furnished, be by guarding with them that which will be much as a protection to them as lamp the is to one whose inability see to is due to the darkness of the 1 7 6 night. So the differences do matter, and too, not the just similarities or supposed similarities. The blind man must take his compensatory devices cautions and into the though night, the sighted not are expected use to them. Although the blind man the road in could not and, see, because the night was dark, could be not seen by the driver of a team down bearing him, on great emphasis was placed the by Vermont Supreme Court on his use of a cane in escaping from by danger finding safely the edge of the and road 7 then falling into the ditch . He had right a assume, to said the court, 1 78 If muniments.' and margin "surface, its in safe was road the that plaintiff been had sighted, presumably would he have had the same right to a safe ditch but he would been have free to find in whatever it way sighted a man might the light in of the all circumstances. another In nighttime accident involving blind a rowing man across creek, a the New York court "assumed" that the creek was a public highway, "as much 1 79 open the to a use blind of man having one as eyesight."' Whether sighted night the in or blind, a person "must cautious. be more He must bring about greater him guards, and more go slowly and tentatively than 80 had he if eyesight, his or the light of shone day upon him."' Notwith- standing these firm declarations, court the in this case much made of the fact that the blind man sighted had his wife the in boat with and him that the night was clear. Neither enabled to him avoid collision a with a tug though boat both had together lot a to do with avoiding his the defense cohtributory of negligence. Some courts have never accepted the basic conclusion about the ex- tent defendant's of the with duty, or without the use of the analogy. In 81 1 the 1955 case of v. Cook City of Winston-Salem, the North Carolina Supreme Court held the city that its and contractors under were duty no 7 6 1 Balcom v. City of Independence, 178 685, Iowa 691, N.W. 160 305, 308 (1916). 177 Glidden Town v. Reading, of Vt. 38 57 (1865). 52, 53, 178d. at 57. 179 Harris v. Uebelhoer, 75 N.Y. 169, (1878). 175 Ibid. 180 181241 N.C. 85 S.E.2d 422, 696 (1955).
33 841 54: [Vol. REVIEW LAW CALIFORNIA signal a at a dropoff from the path to the street or place to guard the "during daytime, operation repaving incompleted an from resulting ' visible."' plainly it was when Harm 2. of Likelihood is defendant the of the conduct created by of harm risk the Whether If the it will that occur. in part on the likelihood unreasonable depends serious, be quite potential harm though even the is very slight, likelihood persons responsibility for safeguarding with charged the defendant is not increasingly defendant, the duty of the manner stating of against it. This is a Since there in the cases. employed uniformly is today, not popular the of of the terms actions in to describe the accident judicial tendency negli- on questions of contributory to and focus particularly plaintiff upon proceed the right of the plaintiff to of speak often courts the gence, will maintained in a be highways that and streets the the assumption to maintain the defendant the duty of condition, leaving safe reasonably 83 way. in a subordinate implicit expressed or them Iowa the as the defendant of duty the is Another mode of stating are defendant the plaintiff and the obligations care due The of court did: he is because precautions use more must blind man The correlative. and right to be of the streets in his the act in the light city must blind; a suggested stricter court also Iowa The of his disability.'" recognition in his of the consequences anticipate wrongdoer need not The standard: would it view, In this occur is sufficient. fact did they in that actions; the a walk in ever before used had man "no that blind not matter 8 5 these very particular plaintiff had used any, the town."' In event, presence. of his claim ignorance the not could city for ten years streets so "The approved instruction: Court this Supreme In 1905, the Washington S.E.2d at 700. 182 Id. at 428, 85 Wildes, Mass. 143 v. 292 76 Smith 291, Goller, Ind. (1881); Salem of Town E.g., 183 v. Shields (1872); 251-53 244, v. Sandown, 52 N.H. Sleeper (1887); 446, N.E. 10 559, 448 556, 242-43 v. (1920); Harris 183 N.Y. Supp. 240, Div. 86, 90, App. Co., Gas Consol. v. 193 (1868); 573 568, N.Y. 37 v. Ruckman, (1878); 174-77 Davenport 75 N.Y. 169, Uebelhoer, 52, (1865). 57 Vt. 38 Reading, v. Glidden announcing the or highway antedates street cases the a safe The right of reliance on v. Bridge- Thompson e.g., See, streets and highways. the upon to be disabled right of the right of dealing with the first American cases 187 (1829). The (7 Pick.) 24 Mass. water, (1861); 189 177, Mass. of 83 Lowell, 1860's. City v. Winn the handed in down the blind were An Vt. 38 (1865). 52 Glidden v. Reading, (1868); N.Y. 568, 573 v. 37 Ruckman, Davenport (1831), 630 628, E.C.L. 24 first & 409, 407, C. 5 [1832J Litton, v. P. in Boss court English and in the road, walk had a right to as well as others, that persons, "all declared paralytic driving persons of part carriages care on reasonable of exercise the to were entitled the it." along (1916). 305, 685, 160 Iowa 308 691-92, N.W. 178 of City v. Independence, Balcom 184 at 309. 160 N.W. 696, Id. at 185
34 19661 THE AND TORT LAW DISABLED is chargeable knowledge that all classes of persons, including city with and diseased lame, constantly travel its streets and side- the healthy and 6 doctrine applied to the blind in a later was walks."'" This specifically 8 7 a used by some courts to cover the is case." pre- Foreseeability term is on notice that disabled persons are likely defendant sumption that the 8 8 along. happen to an English author that "a century ago there was The statement by recognizing rule refusing to recognize a duty of care toward no either or 9 pedestrians blind because rarely in were seen they the streets"' is in- the facts in England and America and accurate to the law in as to as 0 ago, two centuries ago, century centuries ago, the One America.'" five notorious frequenters of the streets of the towns, carrying blind were 191 historic and often their privileged status, as beggars. role, out their rare What was was a about man blind the moving streets other some for to regular purpose, of going especially work as the and for the activity v. London plaintiff Bd. was doing.' Indeed, the number in Haley Elec. getting appellate courts by and about to turn of the century cases of the or nearly blind plaintiffs is in many involving surprising. blind ways some individuals were active and mobile, this course of While blind conduct not by was encouraged governmental policy, by community the mores of the times, or by the public or private programs attitudes, by for the of the blind. Blind children attended segre- established benefit the residential any, where classes and if activities of daily gated schools, Short v. City of Spokane, 41 Wash. 257, 262, 83 Pac. 186 185 (1905). 183, 187 Fletcher City of v. 54 Aderdeen, 2d Wash. P.2d 338 174, (1959). 743 In Missouri sidewalks time that the city's duty held keep its for in repair only required a it was to "to it to maintain use streets ordinary care its reasonably condition in a safe general for Bethel usual and ordinary traffic of travel." all v. St. Joseph, 184 Mo. App. in the modes 171 3889, 42, 44 (1914). See also Wilkerson v. City of Sedalia, 205 S.W. 877 (Mo. 394, S.W. The Supreme Court overruled these cases in favor of the proposition that 1918). Missouri of streets city extended to providing reasonably safe duty for all classes of pedestrians the the 211 the v. St. Louis, 278 Mo. 213, Hunt S.W. 673 (1919). See also including disabled. v. Luce, 222 Mo. App. 282, 290, 2 S.W.2d 129, 133 Bianchetti Hanke v. St. Louis, (1928); 272 933 (Mo. 1925). S.W. Kennedy v. 73 Pa. D. & C. 544, 548 (C.P. 1950) ; Clawson v. Walgreen Drug 188 Cohn, Utah (1945); 583, 162 P.2d 759, 762 108 Haley v. London Elec. Bd.,  A.C. Co., 577, (1964). 791 778, THm A in the Road, 189 Hole LissxmaR 292, 294 (1965). Dias, 73 See, e.g., Winn v. City of Lowell, 83 Mass. (1 Allen) 177 (1861); Sleeper 190 v. Sandown, N.H. 244 (1872); Davenport v. Ruckman, 37 N.Y. 568 (1868). 52 45 tenBroek, Law-Origins and Development, Welfare CAixa. L. Rv. 191 California's 252 (1957); NuEvA REcoPmAci6N, bk. I, tit. XII, law 15 (1567). See, e.g., NoVsIMA 241, bk. RcornAci6N, fit. XXXIX, law 8 (1805). VII, 200-09  778 (1964). 102 text accompanying notes A.C. infra, for a discussion See of this case.
35 841 54: [Vol. CALIFORNIA LAW REVIEW 93 were life all conducted within the confines the of institution. adult In many life, of the blind were for cared custodialized and their by families or in worked sheltered attached shops to institutional living arrange- 19 4 ments, the often residential school. (Homes provided blind the for and 9 5 almshouses cared for the aged.' even ) Yet at this time, as we just have shown, some blind persons were abroad land the in some and courts were proclaiming their be right to and there imposing public on bodies the to duty protect them the in safe exercise it. of Today picture the is different. quite Blind children youths and are attending schools public and colleges, their making way and to from them alone. Blind and otherwise disabled adults encouraged are in many ways to active live whether lives or not are they able to secure gainful 9 0 employment: by financial aid programs which this make possible; by 9 7 case services work welfare the in system;1 home by teacher programs 98 throughout the country designed, among things, other teach to blind persons to travel alone; by orientation and rehabilitation programs which 9 9 mobility regard as a must. The total number of blind in people a See 193 generally FAnRL, TuE STORY BwmNmrss or (1956); FRAmpTON & KEARNEY, RESiDENTAm Ts SCHOOL (1953); FRENcH, FROM HO7eR HELEN TO (1932); KELLR RICHARDS, SAir=dI GRIDLEY HowE (1935); RICHARDS, rrmS L AND JOURNALS Or SAMIUEL GzmLEY Howe (1909). 194See generally Chouinard, Workshops-Past Sheltered and Present, read paper the at Fifth Atlantic City Rehabilitation Conference, 1957; Chouinard & Garrett, Workshops for Disabled: the Vocational A Rehabilitation Resource, Dep't U.S. of Health, & Welfare, Educ. Office Vocational of Rehabilitation (Rehabilitation Services Ser. No. 371) FRENCHZ, ; cit. op. supra note In 193. Chesapeake Tel. & Pacific Co. Lysher, v. Md. 107 237, At. 68 (1908), 619 the blind plaintiff injured when leaving was sheltered a located shop Maryland the at School the for Blind where he worked had years four for graduating after from the school. Samuel Gridley Howe, famed pioneer education in of blind the other and educational projects, started first the sheltered in the country shop in connection with England New the Asylum for blind in the 1840. The men worked who lived it in the at asylum 1880. until FARRELL, cit. op. note supra 193, at 159-60. 68, tenBroek, 195 California's Dual System Law: of Family Origin, Its Development, and Present Status, 16 SrANz. Rav. L. 900, 931 (1964). Stat. 19849 (1935), 645 amended, as 42 U.S.C. 1201-06 §§ (1964). See also CAL. WErARE & CODE INST'Ns §§ 13000-102 (California's Program for Aid to Potentially Self- Supporting Blind). Stat. 76 197 186 (1962), U.S.C. 42 1201, §§ 1351 (1964). See, 198 EDUC. CAL. e.g., § CODE 6209. Over 199 public twenty and private educational institutions throughout country the give mobility training. This not does include dog-guide centers, which of there perhaps are a training or dozen, offered all residential by schools most or resource classes in schools. public least At two groups are operating in California under from grants Federal the Department Health, of Education, and Welfare related public to schools-one Alameda-Contra in Costa County one and in Angeles Los County. There many are like projects country-wide. In two universities, West Michigan University at located Kalamazoo, Michigan, and Boston College in Boston, Massachusetts, mobility teacher training courses offered. are See also Rives, The Blind Jobs, Today's and Rehabilitation Record, March-April, 1965, p. 6.
36 19661 THE AND TORT LAW DISABLED has community the general growth increased with But in a population. far of them greater precentage than in is before the ever out community. ° ° case In Haley recent the decided by the Judicial Committee the of foreseeability House of Lbrds, the was doctrine thoroughly explored. placed Reliance was on common knowledge, statistics, government and judicially noticeable the are all that fact "we accustomed to meeting ' 0 people blind white alone walking with their pavements." on sticks city ' In the London area were 7,321 at the time there people, blind registered Britain as a whole, and in Great 1 107,000, every or about in 500.202 In 0 3 the are the States United figures the Moreover, comparable. growing the white cane has increased use of and the visibility conspicuousness of blind the population. the part One of would in court the no that suppose hear a city, land the greatest metropolis to the would any longer from least village, maintain not that expected it could be that to anticipate that including numbers would pass of way, un- disabled persons, blind, in and attended, exercise of the right free their be the streets and to in or the providing suitable warning of protection duty That highways. 2 0 4 be imposed, as in North Carolina, rest can might only on a still not and policy on the defendant's claimed lack of knowl- determination, not policy determination is one contradicting the policy judgment edge. That much of of rest of society. the 5 of Lords House The Haley" carefully in avoided 4uestions all policy merely It and commitments. recognize that the insisted courts exist- the ing grudging adaptation fact, a partial and contemporary to law of the 20 8 needs. "No doubt places open there many are public," Lord to the said surprised one or another for would be reason to see a "where Reid, one blind person walking but city pavement is not alone a them. And one of blind cannot different from any a The be people residential street other. meet we somewhere and most must live probably them their of left 20 7 homes unaccompanied." Cities charged with this must be common knowledge and placed under a duty of or other protection. warning "If it said be your Lordships making that are wrote new Lord law," Ever- only is because, shed, "that been whatever may have and facts the to be contemplated a hundred circumstances or more reasonably years 2 00 Haley v. Bd., Elec.  London A.C. 778 (1964). 2O1Id. at 791. Id. at 807. 202 Estimated at between 350,000 to 400,000. Hurlin, Estimated 203 of Blindness Prevalence in United States and in Individual States, 32 SIGHT SAVING Rav. 4 (1962). the 422, Cook of Winston-Salem, 241 N.C. City 85 S.E.2d 696 (1955). 204 v. Haley v. London Elec. Bd.,  205 778 (1964). A.C. 200 see Ibid; mNG, 162-63 FLE ToRTs ed. 1965). (3d [19651 A.C. at 778, 791. 207
37 841 54: [Vol. CALIFORNIA LAW REVIEW at it must be accepted as one of the facts of life the ago, time present appreciable that numbers blind of persons, having had requisite the train- ing, are of capable or using fact in use public footpaths as such that in Charleton Church Lane and that accordingly presence their upon such footpaths cannot reasonably be disregarded left or account out of by those undertaking work the of character in the being present case done 0 ° by respondent the board.""' In overruling the 1950 case, leading the said Lords were they merely distiiguisbing and it thereby allowed some dahgerous doctrine to remain unrepudiated. law, The far lagging behind social developments, was merely catching with up blind what people were actually doing. The Lords were implementing not public the policy of integration, a policy in which part large accounted for so blind many people being the streets in and which made decision this necessary. 3. Contributory Negligence Doctrines of contributory negligence are variously described as harsh, 10 illogical, disappearing and doctrines Such have particularly been rife in disabled the cases. misconceptions Here as to the nature of disability have the to added general confusion and there is little evidence that these doctrines are disappearing. Some rhetorical regularity is being achieved the as courts gradually are eliminating talk a higher of standard of care 1 imposed the on disabled person reason by his of disability, ' and are speaking of instead universal a of duty ordinary care requiring dis- the abled person, by reason his of disability, to use greater efforts avoid to hazards, to take precautions, greater more to be keenly watchful the by fuller use of remaining senses, otherwise or seek to to compensate for his 2 12 disability. This rhetorical regularity, however, accomplishes no sub- 800-01. at Id. 208 209 Pritchard Post v. Office, J.P. 114 370 1950). (C.A. FtEswrlo, 210 cit. op. 206, note supra 224-25; at HARPER 2 & JAaIES, TORTS (1956); 22.3 § PRossaR, TORTS 64 § (3d ed. 1964). 211See, v. e.g., Winn Lowell, City of Mass. 83 Allen) (I 180 177, Karl (1861); v. County, Juniata 206 Pa. 637-38, 633, 78, 56 AUt. (1903). 79 212 Garber v. of Los City Angeles, 226 Cal. App. 358, 2d 349, Rptr. Cal. 38 163 157, (1964); v. Muse Conn. Page, 125 223, 219, 331 329, A.2d 4 (1939); Balcom Independence, v. 685, 178 Iowa 160 692, N.W. 305, 308 (1916); Kaiser v. Hahn Bros., 126 Iowa 561, 564, 504, 102 N.W. 506 (1905) ; Hill v. City of Glenwood, Iowa 124 479, 100 481-82, N.W. 522, 523 (1904); v. Gill Sable Fur Hide & Ky. 223 Co., 680, 679, 676, S.W.2d 4 (1928); 677 Chesa- peake Potomac & Co. Tel. v. Lysher, 107 241, 237, Md. 619, 68 Ati. (1908); 622 Keith v. Worcester Ry., Street 196 Mass. 478, 482-83, 82 N.E. 680-81 (1907); Town Neff v. of 148 Wellesley, 487, Mass. 20 N.E. 495, (1889); 113 111, Sleeper v. Sandown, N.H. 52 244, 251 (1872); Shields v. Consol. Gas Co., 193 App. Div. 86, 90, 183 N.Y. Supp. 242 240, (1920); Carter v. Village Nunda, of 55 Div. App. 504, 501, N.Y. 66 Supp. 1059, 1061 (1900) ; Kennedy 73 Cohn, v. Pa. D. & C. 544, (C.P. 552 ; 1950) Clawson v. Walgreen Co., Drug Utah 108 577, 584, P.2d 162 759, 763 (1945); Masterson Lennon, v. Wash. 115 308, 305, 197 Pac. 38, 39 (1921).
38 19661 THE AND TORT LAW DISABLED change. Still stantive decided be case, in in to each the light the par- of circumstances, other question whether the and is disability ticular the requisite effort, watchful- individual plaintiff precautions, the produced or ness, compensation. higher Whether described as a of standard care ordinary care applied to more difficult circumstances a standard as of or little makes the end. The in difference preponderant this rule is that question is to be requisite of care jury or of fact. to left the trier Two recent fairly however, stand as cases, a different leading authority for proposition. 13 Smith the Pennsylvania Supreme Court held a blind Sneller v. In contributory of guilty plaintiff negligence as a matter who of law pro- along sidewalk without using one of the "common, well- ceeded the devices known, blind, such as a cane, a 'seeing-eye' for compensatory the 2 14 companion.1 In a follow-up case, the a court later held dog, or same blind the that once compensatory person the had device was then a it the jury whether he was guilty of contributory negligence in question for 21 6 In Cook v. City of Winston-Salem" its the Supreme Court of use. 5 outdistanced the Supreme Court of Pennsylvania, in Carolina North even an opinion only regarded as can be that 100 years behind the more than though it even times, adhered to the rhetorical regularities men- before tioned. The plaintiff was declared guilty of contributory negligence blind that he to in "failed a greater of forth put degree not than effort one own to due care under his attain safety: that disabilities acting any for which the law has standard for everybody" even of care established was though he guided seeing-eye well-trained a by dog in the handled 17 trained.1 as function its performing and way approved These cases as the question raise to the nature, adequacy, and proper use well-known, "common, of the compensatory devices for the blind" relationship their the law of contributory negligence. In the first and to takes one for place, it that list of devices granted the in the provided case and illustrative Smith not necessarily exhaustive. Presumably, any is all of could be discarded or them if new as outmoded and devices better developed. Experimental were to this purpose efforts been have long in the physics departments at the Massachusetts Institute of on going Haverford College, many blind-concerned agencies, and and Technology numerous private individuals and companies. A central clearing and by agency testing been established at Massachusetts. has Pa. 68, A.2d 452 (1942). 213345 26 Id. 72, 26 A.2d at 454. 214 at Davis v. Feinstein, 370 Pa. 449, 452, 215 A.2d 695, 697 (1952). 88 216 N.C. 422, 85 S.E.2d 696 (1955). 241 Id. at 431, 85 S.E.2d at 702. 217
39 841 54: [Vol. CALIFORNIA REVIEW LAW Secondly, and more importantly, the situations presented in the cases have we been discussing, no if others, illustrate the limitations of the devices and the people who use them. The farm hand New in Hampshire fell off the unrailed side of a bridge though he "felt his way with his cane very carefully ... ,,21 The piano tuner Washington, in using his cane in his habitual and customary way while traveling along the walk, "hit the pile of lumber with his cane at the narrow place the in sidewalk, stepped aside to avoid the lumber, and fell into the excavation .. " . on 19 the other side of the walk. The door-to-door salesman in New York carried a cane but, anticipating no danger, was not using it when he stepped off the curb and fell into the trench, which could he well have 22 0 done even he if had first found the curb with his cane. "[W]hen he approached the place where the rail was down," on the wooden walk elevated four feet over the street, the partially blind person in Colorado "commenced walking slowly, and about felt him his with cane very carefully, for the purpose of definitely locating the walk, but, notwith- 22 standing these precautions, fell off."1 Haley was using his cane which either went over or under the handle of the punner hammer placed athwart his path, the punner hammer then tripping him and proving a 22 2 trap rather than guard. a The door-to-door salesman in Smith v. 22 3 Sneller was not carrying cane. a He stepped on two-foot-high a pile of dirt bordering an unguarded trench across the sidewalk. The dirt gave way and fell he into the trench. This could easily have happened to a man with cane a despite the court's confident assertion that any one of the compensatory devices "probably would have been sufficient to 2 24 prevent this accident.1 Just how easily is illustrated the by follow-up Pennsylvania case where the blind plaintiff fell into open an cellarway though he "carried white a cane customarily employed by blind per- 22 5 sons.) He was using his cane as a guide "moving it laterally in order to touch the walls abutting of buildings and keep on straight a course, and also tapping the ground before him . .,l226 .. The carouser by night in Vermont, in seeking side the of the highway, "put his cane before him with the point resting upon the ground, and in that manner felt his way 218 Sleeper v. Sandown, N.H. 52 244 (187.2). 219 Masterson Lennon, v. 115 Wash. 305, 307, 197 Pac. 38 (1921). 220 Shields Consol. v. Gas Co., 193 App. Div. 86, 89, 183 N.Y. Supp. 240, 242 (1920). 221 Garbanati v. of City Durango, 30 Colo. 358, 359, 70 Pac. 686 (1902). 222 Haley v. London Elec. Bd., [19651 A.C. 778, 790 (1964). 223 345 Pa. 68, 71, 26 A.2d 452, 453 (1942). 224 at Id. 72, 26 A.2d 454. at 2 25 Davis v. Feinstein, 370 Pa. 449, 451, 88 A.2d 695, 696 (1952). See also Kennedy v. Cohn, 73 Pa. & D. C. 544, 546 (C.P. 1950). Davis '226 Feinstein, v. supra note 225, at 452, 88 A.2d at 696.
40 19661 THE AND TORT LAW DISABLED him, moving cane about as he walked to find obstructions if before his any"; there the edge with his cane and then either stepped he were felt 22 ' 7 over below. fell ravine The guide dog in North Caro- into or over the edge all the drop-off and stopped as the good guide dogs lina came to of master should do. His foot that came down on the and air the was in 8 22 embankment. Iowa, churchgoer in Spirit Lake, the tumbled down The was from by the fact that she accident accompanied was saved her not 28 2 9 the creek-crosser in New York by his wife. her All husband, by or blind people are risk of traveling acquainted the with unfamiliar an with the so preoccupied with companion problem of guiding sighted is who to be inalert to ordinary hazards or unsure how to avoid them him as when observed.," cane users and the so-called experts alike, there is a Among ordinary about lively of various canes-should they be long or the debate merits folding, rigid short, metal, or with fiber wood, or glass, curved or straight exists between the cane users handles. the dog Similar debate and 2 person carrying two canes, one blind each hand, tapping A users. in before him with one, following the buildings and curb along- the ground the side still exposes his head as a ready target for every with other, protruding of scaffolding, or low-slung awning bar. ladder, leaning piece and adept blind person without any device may in any given An agile better travel most blind persons with one. In this state of than case opinion and diverse experience, courts are unwise divided uncertainty, to make any particular indeed so important as to declare procedure contributory per se the conduct of a blind person who does negligence use it. not 3 nineteen In states,2 of questions the negligence contributory of physi- Reading, 38 Vt. 227 53 (1865). v. Glidden 52, City of Winston-Salem, 241 N.C. 422, 426, 85 S.E.2d 696, 699 (1955). 228 Cook v. Town Yeager Spirit Lake, 115 Iowa 593, 597, 88 N.W. 1095, 1096 (1902). of 229 v. Uebelhoer, 75 N.Y. 169, 170 (1878). v. Harris 230 2 3 1 In Rock City of v. 217 IIl. 185, 75 Island Gingles, (1905), the blind N.E. 468 only unguarded horse, at dusk, walked a a deep, who, trench in the street, was participant into sighted driver drawing his him. after the horse had and in Though one those using of was compensatory devices for common, horses, namely a sighted driver, he well-known, blind by a faith not justified by law. walked 2 32 A Cane Debate: Liechty vs. Taylor, The Braille Monitor, Mar. 1965, p. 16; White Dog or Cane: Which One, The Braille Monitor, Mar. 1965, p. 29; On Dogs: Guide White Argument Man Owns One, The the Monitor, May 1965, p. 4; A Further Who Ask Braille the Cane, The Braille Monitor, White 1965, p. 14. on July ALAs.A CoMP. LAws ANx. §§ 28.25.010-.040 (Supp. 1963); FLA. STAT. § 413.07 288 ILL. 95Y/2, STAT. ch. (1959); § 172a (1959); KAN. GEN. STAT. AN. § 8-558 (1949); Ky. REv. 32:217 STAT. (Supp. 1962); LA. REv. STAT. § 189.575 (Supp. 1962); M. REv. STAT. REV. § ch 22, §§ 132-35 (Supp. 1963); Miss. ANw. AwN. § 8203.5 (1956); Mo. ANN. STAT. CODE §§ (Supp. 1959); N.C. Gun. STAT. §§ 304.080-110 (1953); ND. Rev. Cone § 39-10-31 20-175
41 841 54: [Vol. CALIFORNIA LAW REVIEW disabled cally in and street have accidents automobile now settled been 234 white so-called the by laws, cane to discussed be In later. detail in substance, laws the blind, confer those on otherwise on sometimes and persons, disabled rights in travel positive if they are carrying the white guide by cane or are led a dog. These laws in nineteen the preserve states, rights the on streets pre-existing in sidewalks and and blind traffic of persons without The canes or dogs. failure dog, cane a have to it or is declared, shall held to not be be contributory evidence or negligence these nineteen states, blind persons without thereof. In general, thus, in cane or dog may the and sidewalks travel streets without being flatly precluded recovering for from accidents, without even or, having their failure travel considered use to the aids factor as in all at a determining exercise in care. This provision was in- of were they the whether due 2 5 corporated in the cane of Pennsylvania, white law the after enacted 6 3 7 23 in decisions the Fraser and Smith cases and the rule cases those in making negligence per se to travel it now without aids has therefore been legislature. by reversed the was that just do the To intention of the drafters of white sponsors the and law in Pennsylvania. cane pro- The 2 8 the white cane law vision North Carolina is also incorporated in of the enacted prior to Carolina decision of the North Court in Supreme 9 City Cook v. Nevertheless, Winston-Salem." of provision the and the discussed were statute neither the applied nor court by in that rendering decision. that the in blind Since pedestrian dog, by guided was case a the provision was not literally Yet provision the dispositive. and the other white of clauses the read cane law can only be the to settle case. They blind without travel aids of contributory designed are to free the negli- gence and sidewalk street ordinary in the blind and to accidents free with negligence in automobile accident cases. This of travel aids contributory design these is laws frustrated and are by meaningless rendered a deci- the blind with travel aids (and presumably with- sion which holds that them out of contributory are as well) guilty a matter as negligence of law ordinary street and sidewalk in they accident to cases if fail see what STAT. (Supp. PA. 1957); § fit. R.I. 1039 ANN. 75, (1960); 31-18-13 ANN. LAWs Gait. t4 §§ 31-18-16 438-41 (Supp. (1956); S.C. §§ CODE 44.9932 1962); S.D. CODE §§ 44.0318-1, (Supp. Tax. 1960); ANN. R 671e (1960); v. Civ. STAT. art. tit. § 1106 (1959); VT. STAT. ANNt. 23, VA. 46.1-237 to 46.1-240 (1950); ANN. CoDE §§ ANN. § 1721(373)(7) W. VA. CODE (Supp. 1961). accompanying notes 360-411 infra. See 234 text 2 35 ANN. § 1039 (1960). PA. tit. STAT. 75, Freedman, Pa. Super. 454 (1926). v. Fraser 236 87 237 345 Smith v. Sneller, 26 A.2d (1942). Pa. 68, 452 2 3 8 Sess. ch. 324, §§ N.C. 1-4. 1949, Laws 422, 85 S.E.2d 696 (1955). 241 239 N.C.
42 19661 THE AND TORT LAW DISABLED plainly is seeing. In North Carolina, the white cane law is visible to the to see. blind are required and the court the by supreme thus ignored Risk Reasonable the Making 4. risk- the about balancing talk courts the than more text-writers The it when seriousness its and occurring harm of the likelihood the is, that defendant's of the the to community the importance does-against protective or preventive of cost taking and feasibility the and activity of field in the terms these in talk do however, cases, of the Some action. the on one Just as, implicit. is it no most doubt, and, in concern; our and policy importance the consider not consciously do judges hand, the assume automatically other, they the on so, abroad, being disabled of the gas water and for sewers, trenches of and inevitability importance the pits, loading and cellarways sidewalks, across and down streets pipes miscel- watercocks, and poles telephone for holes and sidewalk street obstructions and purpose, without defects sidewalk and street laneous of law far as the walks. So and roads on the blocks left stumbling and so ever has No to stay. judge here are these things torts concerned, is and plumbers, companies, street municipalities, that intimated as much of methods alternative investigate should owners property abutting of pre- the cost is question remaining So the activities. their conducting the again, Here be. should they what and measures or protective ventive of it is discussion though assumed, often is this question to answer more frequent. becoming to warning narrowed gradually has issue the cases, blind In the involved, are and holes cellarways When trenches, versus protection. the hold and stop to sufficient a barricade provide defendant the must which a contraption if he supplies does enough he do pedestrian, or blind court in lies ahead? No that danger the pedestrian indicate to would workman a station must defendant that the suggested has recent times adequate an that stand definite taken a have courts Two spot. the at 40 due of defendant's question leave the Others adequate was warning 1 agreed that Lords the Bd.," London Elec. Haley v. In jury. to care the public other and local authorities care, of reasonable exercise the "In privilege his exercises man if a blind that to assume entitled are bodies himself to protect trained been have will he footpath public a using of 4 2 if is it sufficient guard is stick. The his of the by use from collisions would being used properly a blind man of stick the that such nature a of 24 Bd., Elec. London v. Haley (1921); 197 Pac. 38 304, Wash. 115 v. Lennon, 0 Masterson 778 (1964). A.C.  240. note supra Elec. Bd., London Haley 241 v. 242 Id. at 799.
43 841 54: [Vol. CALIFORNIA REVIEW LAW man that a blind be so substantial not It need it. with contact into come ' 243 excavation." into the "so propelled it be over knock and not could "a light like a towel rail informed Lordships' their In opinion, fence 2 44 by post office department, will used about two feet high," ade- the Their refused overrule a case to purpose. this serve quately Lordships apparently not carrying a cane, walked into the in which a blind woman, it ahead of her, fell into the hole beyond Post Office light fence, pushed 5 ' contributory negligence. Apparently, thus, in l of and was held guilty England, despite the talk about bringing the date, the law up to street- be that to pedestrians will assume entitled is defendant tampering blind of a cane which they will carry, trained that a light, in the use and will detected by the cane user in time for him moveable, rail fence be of The case goes no further than the facts of stop. to the holding Haley as require. as the facts of life nearly Only a the case require; not far of blind and skillful in the use trained the cane; the of fraction minor are but still very small, use a What about somewhat larger percentage, canes. they to a life of ostracism? "One is entitled to the rest? Are condemned person," case, Lord Reid in the Haley blind "a high degree expect of a said venture because but the most foolhardy would none to and skill of care 4 having go skill and exercising that care."" out 1 Many alone without that blind do just that. To do so is only as fool- reasonable, prudent, people choose to in the world rather than become a vegetable as hardy to live of back home. somebody the in room else's of the these situations is to speak in to To speak defendant of cost sums, trifling absolute and terms in both the in relation of money to barricades which would keep blind people out social policy. To furnish sidewalks in streets, said Lord Danning in the Eng- of trenches the and would ordinary too great a tax on the appeals, businesses lish court of "be 24 not be a figure of speech and This a serious financial has life."" of to of Lords in Haley, while accepting the principle calculation. The House of in court this respect, yet found the necessary warning of the appeals to protection inexpensive. or be devices very 8 24 consideration quoted in Haley, case, was Scottish much In a 1920 The blind cannot afford to hire given so to financial factors. attendants 1 the streets without them." permitted on city allows be must they The on the tramway, indicating knowledge of their pres- them free passage 800. 243 Id. at 790. at d. 244 245Pritchard v. Post Office, 114 360 J.P. (CA. 1950). Elec. 246  A.C. 778, 791 (1964). Haley v. London Bd., Q.B. 121, 129 (1963).  247 2 v. Corp., 57 Scottish L.R. 476 (1920). Glasgow 248 M'Kibbin 24 at 593. Id. 9
44 19661 THE AND TORT LAW DISABLED 5 0 and their No undue financial burden is placed on the ence poverty. guard city in the street. To require the city to pad watercock to holes 25 be burden. lampposts ' All of this is to speak in an would the undue terms. is It the absolute fiscal cost, not to men- to fiscal absolute ignore If the blind in idleness. maintaining cost, of the incalculable social tion the people capable of doing so were moved into the streets all of blind more money enough employment, would be saved to pad and into than erect gold-plated padded barricades before every hole the all lampposts, city, with enough left over to pay for a small war or two. The in the reason not the lampposts for padding financial. is it Nor not is fact the or ordinary street structures as common Scottish court that they are the that they are said. It is They very not dangerous. cost a run of the up blind little more. man's band-aids but to be Carried by a Common Carrier D. Oh, to With carriers, a second area in which the law of respect common obvious note disabled, there are certain the contrasts with takes of torts highways, and sidewalks. When proceeding the the latter, the streets, on is active agent, propelling himself the on his own voli- pedestrian along having some power of control as to his course, pace, tion, general and procedure. streets and sidewalks are a passive and submissive in- The with relatively locations, contours and general strumentality, fixed the pedestrian a passenger, the situation characteristics. When becomes has him control either of what happens to He or of the little is reversed. when set in motion, creates and constitutes which, equipment, transport dangers. The disabled share with others a passive role, their its own disability next-to-nothing do with to having are whether killed they in a collision. but crash, or taxi wreck, The disabled plane train smash-up, into a situation person comparative disadvantage only when the comes of facility starting, stopping, or at rest, is he is getting off, transport and on, making a transfer, moving from carrier to station, or streetcar or to curb. in Nor, situation on the streets, is there a problem contrast with the by on practicability of protection the an inani- preventability, of based or the cost thereof. The employees of the carrier are on the mate device when to not only as a physical barricade serve appro- spot, available 252 to provide but priate, positive help. mobile and Whatever legal the an established of employees of carriers, in fact realized function duty, at 594. Id. 250 251 Id. at 598. See generally 14 Am. 252 2d Carriers §§ 871-75 (furnishing adequate accommoda- JuR. tions), 876-80 (furnishing information to passengers), §§ §§ (stopping to receive and 884-90 discharge passengers).
45 CALIFORNIA 94:8941 [Vol. LAW REVIEW discharged and true is it varying in degrees, of that is the to service passenger: giving in direction, him aiding in getting and on in and off making connections, assisting with children, bundles, and luggage. In this context, also, responsibility less is dependent questions on of foresee- ability, on based likelihood the that the disabled will along come and be injured. Responsibility dependent is identifying on the disabled among passengers the and adapting assistance need. to The awareness of the carrier's employees of the presence among the passengers disabled of persons their and for needs assistance discussed is the by courts terms in (1) of actual given notice employees the by the disabled persons or others, and (2) constructive notice out arising the of fact the that disability the in given is case reasonably apparent, is, that observable the by ordinarily prudent employee."' Some courts will be satisfied nothing with less than actual knowledge on part the the of 254 employee, however derived. Those permitting constructive and notice on relying the what employees have should known in circumstances, the most for the part, good a leave to deal be desired in the standards of employee alertness demanded. They certainly are not of those 20/20 vision or comparable capacity to inferences. draw Courts have held that constructive notice of infirmity or disability and the need for assistance did not in arise following the situations: A 73-year-old weighing woman, about 200 to 180 pounds, slow and sluggish movement, of preparing to 25 descend steps the a of railroad car; and a woman with an observable limp produced a by wooden leg, even though an employee had assisted 5 0 her up train's the stairs she when boarded. has It also been held that blindness does not necessarily impart Where notice. blind a person got aboard alone, a train slept his through until stop the train to began pull away, and was then in off let switchyard the in the small of hours the morning where he wandered well for hour an over trying to find the station, and struck was a by engine, switch company the was not found See 253 Central of Ga. v. Ry. Carlisle, Ala. 2 App. 514, 517, 56 So. 737, 738 (1911); Southern Pac. Co. v. 54 Buntin, 180, Ariz. P.2d 639 94 (1939); Denver & R.G.R.R. Derry, v. 47 584, Colo. 587, 108 Pac. 173 (1910); 172, Pullman Palace Car v. Barker, Co. 4 Colo. 344, 347, 34 Am. Rep. (1878) 89, 91 ; Mitchell Des v. Moines Ry., City 161 100, Iowa N.W. 141 43 (1913); Wilson Pennsylvania v. R.R., 325, Ky. 306 326, 207 S.W.2d 755, 756 (1948); Louis- ville v. Ry. Wilder, 436, 143 Ky. 438, S.W. 136 893 892, ; Croom (1911) Chicago, v. St. & M. Ry., P. Minn. 52 53 N.W. 296, (1893); 1128 Scott v. R. Pac. Union 99 Neb. Co., 97, 100, 155 N.W. 217, 218 (1915); Pierce Delaware v. W.R. & L. Co., 358 Pa. 57 406, 403, A.2d 876, 877-878 (1948); v. Welsh & Spokane Co.,.91 E. I. R. 260, Wash. 157 Pac. 679 (1916); Sullivan Elec. Seattle v. Wash. 51 Co., Pac. 97 71, 77, 1112 (1908). 1109, Scott 254 Union v. Pac. R.R., 97, 99 Neb. 100, 155 218 N.W. 217, (1915); v. Sullivan Seattle Elec. Co., 51 Wash. 97 71, 77, Pac. 1112 1109, (1908). Wilson 255 v. Pennsylvania 306 R.R., 325, Ky. 207 S.W.2d 755 (1948). 25 Pierce Delaware v. W.R. Co., L. & Pa. 358 403, 57 A.2d 876 (1948).
46 19661 THE AND TORT LAW DISABLED negligent for having to failed assist him depot. the to Sleepiness and 2 57 same. the look blindness Though, the in as of the case streets, is it knowledge common to employees of common carriers, and judges, everybody else, supported if be need by government statistics, disabled that persons are in the habit of using carriers common unattended therefore that and are they likely appear to -any on given carrier at any time, majority yet the of courts hold, today less no than earlier in times, carriers that: are for able- the 2 5 bodied ordinary the in normal use of senses and limbs; the em- ' 259 ployees are "not required anticipate to [special] wants or needs," are duty under not a "to be on the lookout to discover that any particular 26 passenger needs special assistance," "to or observe the condition of 6 2 1 assistance"; such require "they whether see to order in passengers" the employees need not "on their initiative" own render any special ser- helping to detrain a woman in feeble health who was such vice,"' as 63 carrying a sleeping child one in arm and a the in valise other. 1. Duty of Owed by Care Carrier Common the the Disabled to Passenger The which duty the carrier owes disabled to persons, once the em- are ployees should or aware have aware been of their presence, vari- is 2 57 Southern Pac. v. Co. Buntin, Ariz. 180, 54 94 (1939). P.2d 639 cases Other which in the constructive no court found notice: a carrying woman a a parasol, valise, and a fan, accompanied her by husband, preparing to descend steps the railroad a of car, Central of Ga. Ry. v. Ala. Carlisle, 2 514, So. 737 App. 56 man (1911); a typhoid fever with and resulting impaired reasoning and senses and of sight hearing, crossing tracks yard to in the a train catch and yet having not encountered any employee the company, of Scott Union v. Pac. 99 R.R., Neb. 97, 155 217 N.W. man a (1915); who when staggered he train the boarded Coeur at Idaho, d'Alene, aided by a trainman who remarked conductor to the that "pretty was he but full," did who not stagger or otherwise intoxication envince when detrained he at Wash. Spokane, v. Spokane Welsh I.E.R. Co., 91 & Pac. 260, Wash. 157 (1916). 679 2 58 Sevier v. Vicksburg & Meridian R.R., 8, 48 61 Miss. 74 Rep. Am. (1883). 259 Illinois Cruse, Ry. Cent. v. Ky., 123 463, 471, 96 S.W. (1906). 823 821, 200 Ibid; see Southern Ry. v. Hayne, Ala. 209 186, (1923). 95 879 So. Illinois 261 Ry. v. Cruse, Cent. 463, 123 Ky. S.W. 471, 96 (1906). 823 821, Ibid. 262 263 Illinois Cent. Ry. v. Cruse, 123 Ky. S.W. 96 463, 821 (1906). 1939 In the Supreme Court Arizona of said about case: "The Cruse the so far as case, we know, never has been seriously criticised, nor the doctrine down laid repudiated, therein it and been quoted has approvingly in many cases besides those above Southern cited." Pac. v. Co. Buntin, 54- Ariz. 180, 187, 639, P.2d 94 643 (1939). See also Central of Ga. Ry. Carlisle, v. App. Ala. 2 514, So. 517, 56 737, 738 Pullman (1911); Palace Car Barker, 4 Colo. Co. v. 34 344, 347, Am. Rep. 89, 91-92 (1878); Wilson Pennsylvania v. R.R., 306 Ky. 326-27, 325, 207 S.W.2d 755, 756 (1948); Scott Pac. Union v. 99 R.R., Neb. 97, 101, 155 N.W. 217, 218 (1915); v. Welsh Spokane & I.E.R. Co., Wash. 264-65, 91 260, 679, 680-81 Pac. 157 Sullivan (1913); v. Seattle Elec. Co., Wash. 51 71, 77-78, Pac. 97 1112 1109, (1908). Contra Louisville v. Wilder, Ry. 143 Ky. 436, 437, 136 892, 893 (1911): S.W. employees The "exercise must . . . the highest degree care" in of discovering disabled persons.
47 841 54: [Vol. REVIEW LAW CALIFORNIA 0 4 2 circumstances, the in assistance and care reasonable as stated ously 0 5 care special and assistance," a high, higher, or extraordinary or highest 260 care. seem particularly significant. degree variation does not of The well pretty courts All the employees agree that must render such assis- necessary reasonably is as tance for safety of the disabled the person 2 6 7 considering of his disability. the nature standard This was not at- shut the door on the a of.a 65-year-old by cab tained: driver who thumb with diabetic, right leg cut off above the side knee, standing at the of the clutching cab post the where center the assisting driver had left her after 26 8 her a from wheelchair; by conductor car a street who by idly stood 18-year-old watching an crutches, girl on with one short shriveled and 9 2 leg, make her way the down streetcar steps; pullman the by porter took hold who elbows of a blind passenger's the up and assisted him platform the allowed him to proceed up the steps to step and first then way his "feeling best he until along as could" he found what to seemed the opening, him proper instead of being the which car the entrance to "the was away from end of the platform the the door of same the car.., having closed been left open and not the usual was as a by gate custom 2 70 times. at such the In the last case, Court Supreme Colorado de- as the facts justify, we say . . . that the clared: as it "Putting mildly of porter, knowing plaintiff's of was guilty blindness, reprehensible in negligence suffering the plaintiff to proceed up platform steps without ' 7 cautioning or even him, watching movements. his him, or guiding company comparison, a cab In not found was negligent where five blind people cab, were entering the the making for one driver, in room them, of asked a the back second move from to and front the to a seat, 272 on door the shut third second. the fingers the of The court said the & v. Denver R.G.R.R. 264 Pac. Derry, 47 Colo. 584, 589, 108 Mitchell ; (1910) 174 172, 161 Iowa 100, 108-09, 141 N.W. 43, 46-47 (1913); Singletary v. Des Moines City v. Ry., Atlantic Coast 212, Co., S.C. Line 217 R. (1950). 308 S.E.2d 60 220, 305, City 265Mitchell v. Des Moines 109-10, Ry., N.W. 161 Iowa 100, 141 (1913); 47 43, Cent. Illinois 463, 96 S.W. v. 471, Cruse, 123 Ry. Ky. Chicago, 821, 823 (1906); Croom v. 52 Ry., P. St. & M. N.W. 1128, 1129 Minn. 296, 298, 53 (1893) Spokane I.E.R. ; Welsh v. & 260, Co., 91 Wash. 264, Pac. 679, 680 157 (1916). 266 Southern Pac. Co. v. Buntin, 54 Ariz. 180, 185-86, 94 P.2d 639, 641 (1939) ; Pullman Palace Car Colo. 4 34 Am. Barker, v. 344, Co. 347, v. Stallard Rep. 89, 91 Wither- (1878); S.W.2d spoon, 306 Fournier ; (Ky. 301 299, 1957) v. 331 Mass. Central Taxi Cab Inc., 248, 249, (1954); Pierce v. N.E.2d 769 118 767, W.R. 358 Pa. 403, & L. Delaware Co., 406, 57 (1948); Scott v. Union Pac. R.R., 99 Neb. 97, 99, 155 N.W. 217, 218 (1915). A.2d 877, 879 2 267 HARPER & ToRTs JAirEs, 16.14 § (1956). 306 S.W.2d 299 (Ky. 1957). 268 Stallard Witherspoon, v. 2 6 9 Mitchell Des 161 Moines City v. Ry., 43 (1913). N.W. 100, Iowa 141 R.G.R.R. v. Derry, 47 Colo. 270 587, 108 Pac. 172, 173-74 (1910). Denver & 584, 2 7 1 Id. at 108 590, 174. Pac. at 272 Fournier Cab, Inc., 331 v. Central Taxi N.E.2d 767 (1954). 118 248, Mass.
48 19661 THE DISABLED TORT AND LAW was company not bound disabled protect to passengers against "highly 3 7 2 harm. improbable the In accidents case of pedestrians to caused by defects, obstructions 273 Id. at 249, 118 N.E.2d 768 at (1954). duty The common carriers to owe normal passengers is commonly phrased in terms the of highest degree care, of sometimes qualified by "consistent with the practical operation of business." the Accord Pullman Palace Co. Car v. Barker, Colo. 4 345, 344, Am. 34 89 ReD. (1878); McMahon v. New York, & N.H., H.R.R., 136 Conn. 372, 374, 71 557, A.2d 558 (1950); Louisville Taxicab & Transfer v. Co. Smallwood, 311 405, Ky. 224 408, 450, S.W.2d 452 (1949); Griffin Louisville v. Taxicab & Transfer Ky. Co., 300 280, 279, S.W.2d 188 449, (1945) 450 ; Guinevan Checker v. Taxi Co., 289 Mass., 295, 297, 100, 194 N.E. 101 (1935); Scott Union v. Pac. R.R., Neb. 99 99, 97, 155 N.W. 217, 218 (1915) Archer ; Pittsburgh v. 349 Ry., Pa. 547-48, 37 A.2d 539-40 (1944). Ben- nett v. Seattle Elec. 56 Co., 407, Wash. 411, Pac. 105 827 825, (1909). This doctrine was first laid down in this country by United the States Supreme in Court dealing a case with an overturned stagecoach where the carrier was said undertake to transport to persons safely "so far as human care foresight and can ... go Stokes ." v. Saltonstall, 38 U.S. (13 Pet.) 181, 190 (1839). Harper and James point out that the reasonable care rule, announced by courts, some in guarding passengers against "the great potential dangers which attend rapid transit" in is the effect same as high degree a care of that and difference the between the two forms of statement "resolves itself one into merely logomachy." of 2 HARPER JAMEs, & op. cit. note supra 267, § 16.14. Moreover, at the same the time courts of speak the highest degree care, of they sometimes declare that the carrier is under not any obligation assist to passen- gers in alighting, any help is a given matter of courtesy, employees the need merely the call station stop and long enough provide to reasonable opportunity for the passengers to leave the cars board or them. Central Ga. of Ry. v. Carlisle, 2 Ala. App. 514, 516, 56 So. 737, 738 (1911); Ill. Cent. Cruse, Ry. v. Ky. 123 463, 96 S.W. 821 (1906); Steeg v. Paul City St. Ry., Minn. 50 149, 52 151, N.W. 393, 394 (1892); Yarnell Kansas v. City Ry., 113 Mo. 576- 570, 77, S.W. 21 (1893). 2 1, high The degree care of seems rule to applied be principally with respect to the operation the equipment. of Some courts hold that the carrier bound is to provide a suitable and safe and place means of boarding and alighting, and that whether these were provided and the assistance that should been have offered if they were not by the reasonably prudent employee questions are for jury. the E.g., Mitchell v. Des Moines City Ry., Iowa 161 100, 109, N.W. 141 47 43, (1913); Morarity v. Durham Traction Co., 154 586, N.C. 588, 70 S.E. 938, 939 (1911). Employees in discharging their must duties take reasonable not care to injure passengers. Griffin Louisville v. Taxicab & Transfer Co., supra 281, at 188 S.W.2d at 450; Tefft v. Boston Elevated 285 Ry., Mass. 121, 188 N.E. 507 (1934); Benson Northland v. Transp. 200 Co., Minn. 445, 448, 274 N.W. 532, 533 (1937). an For analysis of the differences in boarding and alighting problems of taxis, buses, streetcars, and trains, see Southeastern Greyhound Lines Woods, v. Ky. 298 773, 184 S.W.2d 93 (1944). The Kentucky concluded court that the rule a that carrier owes passengers highest the duty of care generally too is stated. Rather should it read: that the carrier has "the duty to exercise the highest degree care, of diligence skill and for the safety of the passenger is as required by nature the and risk of the undertaking, in view of the mode conveyance of other and circum- stances involved, which may vary according to the immediate activity, instrumentality, time or place." Id. at 775-76, S.W.2d 184 at 95. "The modern trend away is from the artificial perplexing and categories of high and highest degree of care and toward the standard one for cases all of reasonable or ordinary care under circumstances the of particular the case." 14 Am. JuR. 2d Carriers § 916 (1964). For cases dealing with the of duty carriers to furnish suitable accommodations, including providing heat necessary for the health, comfort, and safety of passengers during the trip, see Silver v. York New Cent. R.R., Mass. 329 14, 105 N.E.2d 923 (1925); Owen v. Rochester-Penfield Bus 278 Co., App. Div. 5, 103 N.Y.S.2d 137 (1951).
49 841 54: [Vol. REVIEW LAW CALIFORNIA often is the of discussion focus judicial the in streets, the or excavations to in seeking careful duly was he whether and pedestrian of the conduct because doubtless cases, carrier common In the himself. to harm avoid a in dangerousness its potential including business the of the nature of determining with preoccupied often most are courts the ways, of number comparatively and defendant, of the duty the of extent and the character course is of passenger The negligence. contributory about said is little 4 2 required -even safety own his for due care to exercise upon called attentive and diligent ordinary than "a more make to occasion rare upon 7 circum- in the is, care that what but 1 -- senses1 his remaining of use" carriers, common various of surroundings the and disability of stances control the in as largely is regarded situation The analyzed. seldom is The passengers. of the the control in little very as and carriers, the of is disability his if services needed for ask to no duty under is passenger establish to hard be normally would negligence Contributory apparent. 7 7 2 principal The employee. the by assisted being was passenger the when request to failure the in are negligence contributory for possible left areas employees allowing in not or apparent is not disability when assistance Caro- South of Court Supreme The aid. the to render chance a suitable when law of matter a as negligence contributory was there held that lina 78 unaided. a train from alighted midget crippled and deformed a visibly opportu- reasonable "a court, the said employees, the given had not He 9 that Reports Law the American in out pointed is It him.7 help to nity" a passenger disabled the give to seems times at conduct carrier's the danger a once; at alights he if injury of danger a two dangers: of choice no will be there where point further to some is carried he if injury of ° negligence with charged be can hardly passenger The him. aid to one emergency the addition, In at once. chances his to take decides he if a reasonable was choice the whether determining in applicable is doctrine Singletary (1938); So. 274 150, 179 Miss. 181 v. Shaggs Co. M.V.R. & Yazoo e.g., See, 274 Washington The (1950). 305, 308 S.E.2d 60 219, 212, S.C. 217 Co., R. Line Coast Atlantic v. com- duty "a with drink, crazed passenger, the owed carrier the that said Court Supreme for care to duty his that be must rule this of corollary The condition. his with mensurate Elec. Seattle v. Bennett sobriety." as to condition his by be measured should safety own his (1909). 827 825, Pac. 105 410, 407, Wash. 56 Co., Ct. Sup. (N.Y. 57, 62 Spencer & 1 Jones R.R., & Harlem York New v. Gonzales 275 (1943). 694, 697 A.2d 127, 29 123, Pa. 34 R.R., Pennsylvania v. Anschel 1871); "Most (1913): 46 43, 141 N.W. 108, 100, Iowa 161 Ry., City Moines Des v. Mitchell 276 the upon urging in or assistance asking in a delicacy was feel she as [plaintiff] afflicted people and crippled." are unfortunate they that fact the strangers of attention (1964). n.21 § 1011 Carriers 2d Jun. Am. 14 in cited See cases 277 27 8 (1950). 305 212, 60 S.E.2d S.C. 217 Line Co., R. Coast v. Atlantic Singletary at 308. S.E.2d 60 217, at Id. 279 (1953). 337 334, A.L.R.2d 30 280 Annot.,
50 19661 THE AND TORT LAW DISABLED l 8 it one. held that where the passenger's disability has Moreover, been discovering that car was moving, he was not him prevented from the 8 2 2 off. getting in se per negligent absent Noticeably from the common carrier cases some is talk about of common, well-known, the for devices compensatory the blind. Either or the cane would be helpful in keeping the blind man the seeing-eye dog off from falling of the train the end unguarded but platform; neither would be helpful particularly connecting a finding in train or in locating the middle of the switchyard. The cane but the the dog station from not helpful descending train steps, locating the stool placed in would be at bottom, the and determining the height steps. Doubtless of ab- the the of talk about these devices is due to the presence of the sence judicial the employee scene, on regarded more courts by useful as and reliable of the compensatory aids. either than other who need them ought to be That with atten- the disabled provided 2 83 said, some have leaves courts the question: by whom? as dants, open the impoverished disabled to supply them out of their To require own on of not being able to travel on common carriers is resources penalty houses form the disabled up in their locking and institu- one of simply 28 4 arrangements tions. by which blind The government-sponsored pas- may a guide with them for th~e take of one ticket are a sengers price recognition the poverty of the of as blind well their supposed need as for guide do not solve the problem of the blind person who is services. They guide without a of the availability and because who, arrange- of these ments bus and railroad lines in the United States, is often almost on all aboard will be permitted to get not unattended. The arrange- he told that work in some cases to the disadvantage of the disabled ments thus traveler giving by the to support the carriers of free in exercise a sup- right posed accommodate to not are Where them. services abundantly the airlines, supplying the disabled passenger available many on with attendants, the blind person's and only the remains, poverty National the Blind has Federation the two-for-one concession author- of opposed 285 bills currently ized by before Congress. pending to poverty, As the 288 poor. distinguished from others who are be not to are blind Ibid. 281 2 82 Pacific Elec. Ry., 177 Cal. 190, 170 Poak 159 (1918). v. Pac. 283 v. Chicago M. & St. E.g., Croom Ry., Minn. 296, 53 N.W. 28 P. 52 (1893). See, e.g., 44 Stat. 1247 (1927), 49 U.S.C. § 22(1) (1964); CAL. PuB. 284 CODE § UTIL. 525; REV. LAW § 109-22 HAwAix KAw. GEN. ANN. § (1957); STAT. NJ. (1949); 66701 STAT. 48:3-34 (1940). ANN. § 8068, 285 H.R. 88th Cong., 1st Sess. ; National (1964) Federation of Blind the Resolution 64-09, 1964. Phoenix 288 Some smaller groups the blind of have favored measures: these The BVA Bulletin, 1964, Resolution No. 13. Oct.
51 841 54: [Vol. CALIFORNIA LAW REVIEW The . basis extent and of duty the common of carriers toward disabled passengers is forth set the in oft-quoted words of Croom Chicago, v. :287 Ry. P. St. & M. course, Of a railroad company not is bound to turn its into cars nur- series or hospitals, its or employees into nurses. a If passenger, because of extreme youth or age, old or any mental or physical infirmities, is unable to care take of himself, he ought be to provided with at- an tendant take to care of him. if But company the voluntarily accepts a person a passenger, as without attendant, an whose inability care to for himself is apparent or made known its to servants, and renders special and care assistance necessary, the company negligent is if such assistance is afforded. not In such case it must exercise the degree of care commensurate with responsibility the which has it thus voluntarily assumed, that and care must be such is as reasonably necessary to insure safety the of the passenger, of view in mental his physical and condition. is This a duty required by law as well as the dictates of 8 8 2 humanity. Thus, the basis of the duty is the voluntary and knowing acceptance of responsibility, making plain that common carriers are free to decline to carry disabled persons, least at those who "ought provided to be an with attendant take to care" of them. The doctrine of the Croom case would seem, on its face, to infringe the common law command equal of non-discriminatory and access to the services and facilities of common carriers and repudiate to any general right the on part of disabled the to travel this by mode. The courts have taken the position that, first, refusal the of carriers the to transport disabled persons based is on proper classification and warrantable dis- crimination and therefore is not a violation of the common command; law and, second, that the disabled general in do not have right a to be carried by the common carriers, the cases sometimes for cited proposition the that do they being in the fact foundation the of doctrine of the Croom s 9 case.F The common law command of equal and non-discriminatory access arises out and of part is of notion the carriers that common, are that is, that they hold themselves out the to public generally in as business the 52 287 Minn. 296, 53 N.W. 1128 (1893). 2 8 8 at Id. 53 298, N.W. 1129. 289 Williams See Louisville v. N.R., & Ala. 150 324, 43 So. (1907); 576 Yazoo & M. Valley v. R. Littleton, 177 Ark. 199, 5 S.W.2d 930 (1928); Cent. Illinois v. R. 121 Allen, Ky. 138, 89 S.W. (1905); 150 Illinois Cent. v. R. Smith, 85 Miss. 349, 37 So. (1905); 643 Zackery v. Mobile & O.R., Miss. 75 746, 23 So. (1898); 434 Zackery v. Mobile O.R., & 74 520, Miss. 21 So. 246 (1897); Sevier Vicksburg v. & M.R., 61 Miss. 8 Hogan (1883); v. Nashville Interurban Ry., 131 Tenn. 244, S.W. 174 (1915); 1118 Benson v. Tacoma Ry. & Power Co., 51 Wash. 216, 98 Pac. 605 (1908).
52 19661 THE DISABLED TORT AND LAW 0 transporting of The command for persons hire. law, does imposed is by arise not out of the contractual relation between the carrier and the passenger, is intended for benefit the of the traveling public and in many states is re-declared and strengthened by statute and constitutional pro- 29 vision. ' But equal access, the courts hold, provided is when all who are similarly situated admitted are on the same terms and ban a against discrimination does not forbid distinctions among potential passengers that warranted are by the special relation a particular of class of persons 2 to the function of the carrier the or act transportation.- of Thus they have held that carriers can refuse to receive persons who are objection- able, dangerous to health, the safety, or convenience the of other pas- sengers: those "who desire injure to the company, notoriously bad, or justly suspicious persons, gross or immoral persons, drunken persons ... 2 93 ' those who refuse to obey the rules," those who are obnoxiously filthy," those or who are affected with a contagious repulsive or dis- 29 5 ease. To motley this crew, view in the of association in men's minds between these ill-assorted persons and problems, was it inevitable that the courts should add the physically disabled. To supply their need for attendants, would, in effect, convert the conveyance into a hospital and the carrier's employees into nurses. 9 2. The Right the of Disabled to be Transported Common on Carriers The leading cases the on right the of disabled to be carried by a common carrier open the door of the carrier only a crack admit to a .9 7 few They hold the that carrier may not properly adopt a rule flat that 29o See, e.g., Hogan v. Nashville Interurban Ry., note supra 289, at 254, 174 at S.W. 1120. See generally, 13 Jun. Am. Carriers 2d § 2 (1964). See 291 and cases statutes cited in 13 Jun. Am. 2d Carriers 175, §§ 181 (1964), 14 Am. JuR. 2d Carriers 859 § (1964). Ibid. 292 293 Zachery v. & Mobile Co., O.R. Miss. 74 21 520, 246 So. (1897). 294 Atwater Delaware, v. L. & W.R. Co., 48 55, NJJL. Atl. 2 803 (1886). 295 Pullman Co. v. Car Krauss, 145 Ala. So. 395, 40 398 (1906) ; Bogard v. Illinois Cent. R., 144 6492 Ky. 139 S.W. 855 (1911); Atwater v. Delaware, L. W.R., & supra 294. note 9 2 Pullman 6 Palace Car v. Co. Barker, Colo. 4 344, 34 Am. Rep. (1878) 89 Croom ; v. Chicago, M. P. & St. 52 Ry., . Min 296, N.W. 53 1128 (1893). In 297 Pullman Palace Car Co. v. Barker, 4 Colo. 344, 34 Am. Rep. 89 (1878), the ill were declared have to the right. The statement was dictum however the and emphasis of the opinion was upon increased "the risk arising from conditions affecting their fitness journey" to resting upon their own shoulders where they are unknown to the carrier. Id. 348, at Am. 34 at Rep. For 92. language the casting on doubt the right in Colorado, see Denver & R.G.R.R. v. Derry, Col. 47 584, 108 Pac. 172 (1910): "It be may that a railroad company is not bound receive to as a passenger one who is helpless or blind, or otherwise incapable of properly caring for himself, unless accompanied competent by a attendant." Id. at 588, 108 Pac. 174. at A 1911 Kentucky case, Louisville Ry. v. Wilder, 143 Ky. 436, 136 S.W. (1911), 892 de- dared the right more in encompassing terms: "[Clhildren . . . feeble, infirm,... aged
53 841 54: [Vol. CALIFORNIA REVIEW LAW imbecile, sick, or blind person will be received no cripple, insane, invalid, tickets or unless accompanied by some conductors, by by sold agents, 8 and traveling. their There was with charged person comfort care while rule as invasion of the rights wholesale a no disposition to question this live in the world, or to go about of it; no a large class of people to in the have the same right disabled declaring cases the to reference as streets and highways, saying others effect that if they to be upon the in there have a right to be there; no doubts about the are able to get they carriers refuse affirmed-that may proposition-indeed it was explicitly require "other care than that which the law to receive persons if they 20 9 More- its passengers alike. upon all bestow to carrier the requires felt itself over, to say what classes of persons the Mississippi court able require such faltered care," it "other though in little a vouchsafing in- the of "Primarily the formation character the additional about care: for safe travel by railway, if person every unfits blindness of affliction 30 presume blind people unaccompanied." the carrier Accordingly, might a not to be regarded as presumption hardship alone, travel to unfit "a with blindness or other disabling physical upon the persons afflicted in- "as firmity" but rather around thrown safeguard a pro- for them their 1 0 blind But crippled, infirm, or not person since ' every tection." sick, individual requires be allowed to overcome this additional care, the must if can. This he can do he offering to the him against presumption by of his competence company's travel alone. The company's agent proof to of was thus to be traded for a presumption of the in- flat rule exclusion competence disabled, of itself the but exclusion of rule not a a flat one. uninformed admit those adjudged by crack the a door to This opened who have the hardihood to insist on agents to be competent and the context the day, the courts did not of it necessary social the In point. feel justification for the closed-door policy to they find some rational which adopted; the contrary, they found it necessary and the carriers quite were door crack they did. Two reasons the even justify the to opening for given the less doing so: fear that only disabled-those severely a leg or arm-might be or in the dragnet at slightly sick lacking caught who are encumbered with babies or bundles ... all these classes persons [and] persons of the to use the car . . . ." Id. at 440, 136 S.W. at 894. Here again the state- persons have right The question the case was whether the carrier was negligent in starting is ment dictum. in plaintiff in a baby the her arms was seated. the train before with 298 Illinois R. Cent. Co. v. 85 Smith, 349, Miss. So. 37 (1905); 643 Zackery Mobile v. & Mfiss. 746, 23 So. 434 (1898); Zackery v. Mobile & O.R. Co., 74 Miss. 520, 21 Co., 75 O.R. Hogan Tenn. Nashville Interurban Ry., 131 (1897); 244, 174 S.W. 1118 (1915). So. 246 v. R. Cent. 299 Co. Illinois liss. 349, 356, 37 v. Smith, 85 (1905). 644 So. 643, 300 Ibid. 301 Ibid.
54 19661 THE AND TORT LAW DISABLED 3 0 2 "unwarranted of placing an undesirability and the door; station the and to society, being serviceable men capable of a on class of handicap 03 why either did not discuss The courts society itself." therefore on by the tested it be in should right live to society the to or serviceability a to way one's find or unaided train the steps capacity to mount physical could who those for test proper it a thought only They carrier. connecting this and belief knowledge of our the best To things unaided. these do was he assisted as Roosevelt Delano to put not Franklin question was President of the inaugurated to be to Washington to go train aboard a United States. common car- to ride on the disabled of the right rule The governing con- century, the of turn the courts around the evolved by riers, thus to rule sought on a harsher improvement slight time at that a stituted prevail- the consistent with While perhaps railroads. the be by imposed the rule with inconsistent but certainly of that day, attitudes social ing disabled the right of the regarding courts by the since developed long 0 the by invoked is that rule still highways, streets and the be on to in agent At- by cited an was of 1965, it the In summer today. carriers with person blind a transport to refusal justifying as Georgia, lanta, passenger the by circulated was widely It about. get to ability normal organiza- of protest from to a flurry their answer as agents' association 0 5 or Objectionable Ticketing Infirm "Rule 8(f). the blind. of tions or other dis- physical, because of mental, person, who Passengers.-No a as received be herself, will or himself for caring of incapable is ability, con- and no attendant, a competent by unless accompanied passenger, in a person by for such or purchased ticket or transportation tract for ' valid." shall be this rule of contravention it was formulated existed when this rule which objections to The At least others. added have times changed and today the still valid are Services necessary in principle. is wrong disabled, it physically the as to the by provided be facilities should and equipment the their of use for to carrier bestow law requires the "the which of the part as care carriers °7 ' convert to them would compel this That 1S alike. its passengers upon all is nurses probably employees into their and hospitals into trains their (1898). 435 434, Co., 75 Miss. 746, 752, 23 So. & O.R. v. 302 Zackery Mobile 1120 1118, S.W. Ry., 131 Tenn. 244, 251-82, 174 Hogan Interurban v. 803 Nashville train by traveled crutches, who, using paralytic a young involved Hogan case (1915). The teacher. and a he was a student where Vanderbilt to University daily 132-67 supra. notes text accompanying 304 See Passenger Ass'n, R.R. Trans-Continental NFB, from president R. to Letter 305 Kletzing, July 6, 1965. Padrick, Chairman, B. E. 300 Ibid. 644 (1905). 643, So. 349, 356, 37 Miss. 85 Smith, v. R. Co. Cent. Illinois 307
55 CALIFORNIA 841 [Vol..94: LAW REVIEW colorful argument rather fact. than any event, In only speaks it the to cost; the and should public bear cost the making of effective an such right. important argument The the about necessity of is Rule 8(f) largely In academic. services practice, to adequate enable most disabled persons to travel, even though might they commonly thought be to re- an quire attendant, provided are the agents by the of company are or available porters from others and on the premises. Equally important, the rule is by misapplied not agents generally knowledgeable about such things exclude to disabled persons who do not need an attendant. Argu- ments about cost, availability of existing services, and mis-administration, however, must all way give to the that fact the rule is in contravention of today's policy of integration of disabled the the into and social economic the life of community. That policy requires least at the that presumption of incompetence the of disabled should be exchanged for a presumption competence, of leaving the burden disproof of the carrier; on and that disabled every person who makes his way to the station be should put whatever with aboard help In is necessary. this practice, what is the large do, airlines without noticeable disaster to or themselves the to country. Architectural barriers in conveyances public receive should the 08 treatment same as do they buildings public in and facilities. disabled the If are to live in the world, travel by-common carrier is necessary a right-as necessary is as use the to right the streets, high- ways sidewalks. and it Indeed, properly may be regarded as of aspect the upon to right be streets, the highways, and walks. That latter the are public, while the common carriers in are some sense private, does not change the nature of the or right its necessity harmony and with basic policy. social People cannot in live the today, world, more than ever, without moving within freely communities and between communi- ties. involves This only not walking or riding wheelchairs upon the side- walks and streets, also but utilizing means such of transportation over them as are commonly available others. The to disabled are less able to use private cars themselves, driven by and are correspondingly more dependent public on transportation. The that fact common carriers are regulated and subsidized by the public, engaged are and in a common calling historic with common law implications of rights to access, equal does not create the claim of the disabled to the in live world and gain access to it through use the common of carriers. It does, however, add strength to claim that and make its denial even tenable. less Only when that right and its implications are fully understood the by courts, and and avowed implemented by them, will this branch of the torts law of See text accompanying notes 102-31 supra. 808
56 19663 AND TORT LAW DISABLED THE half of the second of the the demands with conformity into brought be integration of and economic of the social and its policy twentieth century disabled. the modi- been carriers has of the rule the existing which to The extent Those clear. not entirely dog statutes is the by guide all, fied, if at 9 30 conveyances, cover public states expressly twenty-three in statutes air- carriers, these as "common detailing California, as in occasionally, M10 ... boat car, street bus, motor train, railroad vehicle, motor plane, 11 problem to the generally addressed are statutes earlier, these As noted its on restrictions removing is, of that the dog, for admittance of gaining to plain make they also seek conveyances, of the public case In presence. 12 the of dog, transportation for the be not to is charged the master that 3 1 special The ques- a seat. to occupy dog is not that the and sometimes be to is dog is whether the the carriers respect to with tion presented or rule; their meaning of within the attendant" competent "a as treated is incompetent agent to be an by adjudged blind person the whether in addi- human attendant a competent by accompanied be to required the do enlarge not is that they of statutes the view The narrowest tion? persons and that the unattended to travel eligible persons of blind class An them. with their dogs take may alone travel to otherwise competent persons with all blind statutes authorize is the that intermediate view The broadest their competence. questions of all eliminating to travel, dogs common to use persons of all a right presuppose statutes the is that view remove spe- are designed to they right, presupposing that carriers, and, their dogs with persons having of way blind the placed in cial obstacles to the literalism conforms first view the right. The exercising when them and pur- origins historic conforms to the third view statutes. The the -of The policy of integrationism. and the formulation statutory of the poses one that the either, but is conform to particularly not does view second car- of common the agents between Arguments practice. in is followed In- Hawaii, Illinois, Florida, Georgia, Connecticut, California, Colorado, Arkansas, 309 Mexico, Jersey, New Missouri, New Michigan, Massachusetts, Maine, Louisiana, Iowa, diana, supra note See 74 Virginia. West Texas, Washington, Tennessee, Island, Rhode York, New statutes. of the applicable for a listing CODE 643.5. § Pm;. CAL. 310 supra. notes 69-102 accompanying text 311 See STAT. REv. CoNN. 643.5; § ; CoDE CAL. PaN. (Supp. 1957) § 78-212 STAT. ARx. ANN. 312 ANN. CODE IowA 1965). 18-5812A § (Supp. ANN. IDAHO CODE (Supp. 1963); 22-346a § (1956); 98A § ANN. MAss. STAT. 1963); § (Supp. STAT. 54 ME. REV. 1964); (Supp. 351.30 § ANN. STAT. R.I. (1953); 48:3-34 § ANN. N.J. STAT. (1962); 209.150 § ANx. STAT. Mo. § 81.28.140 ANN. CODE REv. WASH. (1960); § 25-889a ANN. STAT. TEx. (1957); 29-2-16 § (1961). ANN. § 2568(1) CODE VA. (1962); W. 3 31 STAT. ANN. LA. (1964) ; STAT. ANN. § 16-212 ; IND. 79-601 (1964) § ANN. CoDE GA. § 52 (Supp. 1964).
57 841 54: [Vol. CALIFORNIA REVIEW LAW go aboard; dog the to right of the focus on travelers blind the riers and progress is human Thus not disputed. is master of the right the dog the functions and attendant no few guiding are there Since achieved. of method is an ironic this conveyances, public about or in perform can rights. human advancing E. Automobiles special torts pays the law of in which area third the is law Automobile the at stood they as negligence of rules The disabled. to the attention the new means to generally been applied have of automobile the advent and differ- selection, adaptation, some not without locomotion-true, of of emphasis. ence streets use the people to of right pre-existing the is point starting The and automobiles in afoot or whether this right They have highways. and pedes- Thus, place. or to time as distinction without it exercise can they the only to not right equal an have held to were early drivers and trians any at of them in any part but to be highways and streets the of use 314 drivers and pedestrians highways, and the streets using When time. fashion careful safe and in a proceed to obligation under an are alike them. As injure to others or rights of equal the infringe to not as so 3 1 the circumstances by determined is care due always, ordi- and statute by custom, developed been have the road of Rules to drivers and of pedestrians hordes for the it possible to make nance and satisfaction maximum with efficiently, and streets roads the use auto- Otherwise, rights. of equal the exercise to all in injury minimum pedestrian. of the slowest the pace at proceed to have would mobiles in of way has the right pedestrian that the provide generally These rules Drivers road. the side of the on and intersections, at walks, cross marked must alike pedestrians and Drivers elsewhere. way right of the have 3 10 When way. of right have the they when even care due with proceed do must but proceed still may they of way, right the not have do they circum- the including circumstances, the in appropriate care with so 3 155 Griffin, v. McLaughlin ; (1909) 97 N.E. 87 186, App. Ind. 44 v. Lazro, Apperson 14 749 (1918); Ati. 602, 104 261 Pa. Dick, v. Warruna (1912); 1107 N.W. 135 302, Iowa (1912). Pa. Super. 229 51 v. Dougherty Davis, 58 v. Madden, Fahey (1925); 1066 237 Pac. 308, 196 Cal. Lagomorsino, v. Rush 315 1025 Pac. 217 729, Idaho 37 v. McKissick, Carpenter Pac. 41 (1923); 209 537, App. Cal. N.M. 485, v. Metz, 66 Button Pac. 571 (1930); Kan. 285 158, 130 Taylor, v. Stotts (1923); 1960). (Wyo. P.2d 548 348 Bishop, v. Feltner 1047 (1960); P.2d 349 STAT., ch. ILL. ANN. See also (Supp. 1965). 2.1954 2.1950, CODE §§ VaImac 316 CAL. STAT. Civ. REV. TEXAs 1154; § LAW & TRAmc VvmCLE N.Y. 1965); (Supp. 172(c) § 953/2, 79 (1960). § 6701d, art.
58 19661 THE AND TORT LAW DISABLED 317 the apportionment In view of right of way. the have others that stance of the portions rights to use particular and alternate way rights of of of the rights of pedestrians character the and highways, equal streets the rhetoric of judicial from gradually disappeared has and drivers opinions. high- and of streets the use the to right have same the The disabled must too they right, exercise the they other people When do. that ways the circumstance of care the circumstances, in including proceed with due infirm an involving in a case court, Indiana an In 1909, their disability. down the defendant's by run who was plaintiff defectively sighted and un- highway the on plaintiff to a right had the be held automobile, that 31 I The when there. ordinary care use only to bound was and attended not must and road the to right car same the had and the pedestrian 319 infringed the had so defendant Since the use. other's each infringe his to pay proper attention to failing right plaintiff negligently of the by 1912, In sustained. him was against judgment the on highway, presence 0 3 2 for a judgment a affirming Court, Supreme Iowa the leading in a case ap- explicitly automobile, defendant's the by was struck plaintiff who 3 2 1 plaintiff, Glenwood, a 1904, blind in Hill v. City of the rule plied been had who plaintiff, the case, sidewalk the In case. 1912 defective with the of the streets who was familiar six years and five blind or for the at to waited cross street and main business the along walked town, more, started heard nothing listened, by, go let He a buggy corner. all he had done that the plaintiff court held The struck. was and across, S do." to required was follow courts generally the this area, in negligence As to contributory "[T]he [rea- Court: Hampshire Supreme the by New restated the line the of case aged enough the in been flexible standard has sonable man] experiences the practical with bend to persons disabled physically and see, shall or that the blind does not demand law life. The day every of of ability the traffic maintain aged shall or the that hear, shall deaf the ' 8 23 dis- the that does require standard man reasonable The young." the 1154; 1151, §§ LAW, TRAmc & NEW YORK VEmcLE 1951; CODE CEc § CA. V 817 AwN. 75, tit. STAT. 1965); PA. (Supp. 172 § especially §§ 953/, 170-175, ch. AxN. STAT. ILL. N.C. GEN. STAT. 82 (1960); art. 6701d, RFv. 33-34, Civ. STAT., §§ i'x 1039 § (1959); 137 354, Ariz. 60 v. Harrington, Contractors Dickerson & See Pearson also 20-174 (1937). § (1923). 193 Pac. 218 470, 126 Wash. v. Rhirner Davis, 381 (1943); P.2d 97 (1909). 44 87 N.E. Ind. App. 186, Apperson v. Lazro, 318 3 19 100 (1909). 186, 88 N.E. at Id. at (1904). 1107 N.W. 155 302, 135 Griffin, Iowa v. McLaughlin 320 (1904). 522 479, N.W. 100 Iowa 124 321 3 2 2 1107 N.W. 135 (1904). 302, 155 Iowa v. Griffin, McLaughlin 77, (1960). 164 A.2d 577, 578 v. Russell, 103 N.H. 76, Bernard 823
59 841 54: [Vol. CALIFORNIA REVIEW LAW use make remaining senses and faculties: that the abled of greater their the deaf more closely, and the aged or more listen blind carefully, look time. space more allow lame and the of from the in- The problems the of deaf distinctiveness arises and the notice to drivers. hence of condition their of visibility absence especially those involving automobiles, a factor in As accidents, travel exclusively terms of the in automatically almost is deafness considered deaf standard or, in other words, of the negligence of care of the person The pedestrian who puts himself in a place of of the deaf plaintiff. deaf streetcar of must, on peril a being found danger by walking along track of matter look backward at suitable law, a as negligent contributorily 8 the If he walks diagonally across intervals road- as well as forward. clear but night, he must, at the same peril, be sufficiently way on a dark to discover a car with lights aglow, his of watchful surroundings that and approach- the proper side of the road, is speed moving at a lawful on 3 stand And if he should happen to right in the his from him ing rear. road just wide enough for one car, the jury might middle of a country he that "take a position facing across the road very well think should way so could see both ways, or one he as well it of that instead along 2 turning his head." as the On the other hand, the deaf other, by merely ' compensatory of his eyes need use continually making in pedestrian not directions but may fix his attention look the direction from in all on 2 3 7 be anticipated next . is to He is entitled to assume, which the danger 328 will the speed limit. that If the pedestrian moreover, not drivers exceed position in the fact that hearing would have otherwise was of a right 29 not will him saved the of relieve defendant liability. deaf A pedestrian waited for the light to who, and approaching the corner, stopped, change, the was found not contributorily street, cross to proceeded then negli- matter of law gent as a matter of fact when he was struck either as a or truck to an alarm, moving north in a south-bound by a fire responding bell traffic at intervals, the and on the block lane, with siren sounding eyes plaintiff, the court, "used his said and stopped."' been having The prudence and care would require under the circumstances... did all that to [He] that the green light gave him the right of was entitled assume 32 4 Connecticut, 304, 140 At. 751 (1928). Kerr 107 v. Conn. 2 5 Blackman, Hizam 3 v. Conn. 103 131 547, 415 Ati. (1925). 212 Wis. 275, 279, 249 N.W. 505, 326 (1933). Hanson v. Matas, 506 Quaker Cab Co., 283 Pa. 454, City Atl. 331 (1925). v. Robb 327 129 v. Randall, 298 Mich. 328 298 N.W. 396 (1941) ; Robb v. Quaker City See, Covert 38, supra 327. Cab Co., note 172 City York, 206 Misc. 79, 132 N.Y.S.2d New (Sup. Ct. 1954); cf. v. of 329 Fink 271 Wilson 438, 171 N.E. 469 (1930). v. Freeman, Mass. v. of New York, City note 329. Fink 330 supra
60 19661 THE AND TORT LAW DISABLED way... [Plaintiff] is to not penalized be because such of affliction and ' 8 3 not being able to hear siren and bell." Cases dealing with the contributory negligence the of lame are too few number, in scattered in jurisdiction, and some of them too old to be revealing of judicial a view of special the travel problems of this group. 2 a In 1911 Arkansas case," the appellate court held erroneous instruc- tions the to jury that the if motorist ran into the pedestrian prima a facie case the of motorist's negligence was established. In holding, at this early stage of placing the automobile its in proper place the in law of torts, that negligence and contributory negligence were matters fact, of the court did concern not itself with the fact that the plaintiff was "a 33 3 beggar his on crutches,1 except to that say such as he have the same right to use the of the streets as the man in his automobile. That the crutches gave notice to motorist the the of pedestrian's condition, and therefore of care the required of him the in circumstances, was not sub- a ject of judicial comment. 834 The New Hampshire court, in a 1946 case, held that the lame can only required be do to what they can do, and whether, with their limita- tion, they have exercised due care at an intersection a is question for 335 the jury. In a 1954 Michigan case, plaintiff, with a bad hip, and using a cane, was found contributorily negligent as a matter law of for failing to' make "further observation the in direction the of approaching vehicle after proceeding into the lane of foreseeable danger. . . . Having dis- covered the oncoming vehicle, it the is pedestrian's duty to keep watch its of progress and to exercise reasonable care and caution to avoid 3 ' 83 being struck by it. In Pennsylvania, with its fixation on contributory negligence, this rule was applied to a lame pedestrian'with a cane who had not discovered oncoming the automobile in his careful observation before leaving the curb. The court held must he maintain a vigilant look- 33 7 all out way the across. In California, a cripple on crutches, crossing at an intersection and struck near the opposite curb, was held to have had a right to be where was he and to have exercised due care in the 38 circumstances. In that case, however, the plaintiff the saw defendant's three car or four blocks down the street kept and his eye on it all the 3311d. at 80, 132 N.Y.S.2d at 173. 3 32 Millsap v. Brodgon, 97 Ark. 469, 134 S.W. 632 (1911). 333 Id. at 472, 134 S.W. at 633. 834 Bellemare Ford, v. 94 N.H. 38, A.2d 45 882 (1946). 3 3 5 Heger v. Meissner, 340 Mich. 586, 66 N.W.2d 200 (1954). 3 589, at d. 66 N.W.2d at 222, citing Ludwig v. Hendricks, Mich. 235 633, 638, 56 N.W.2d 409, 411 (1953). 3 37 Rucheski v. Wisswesser, 355 Pa. 400, 50 A.2d 291 (1947). 338 Florman v. Patzer, 133 Cal. App. 358, 24 P.2d 228 (1933).
61 841 54: [Vol. CALIFORNIA REVIEW LAW But way. fact the for defendant the that speeding, was the plaintiff have would it made across. the In blind, case of the relatively less emphasis on placed is the the of conduct and pedestrian that on more the defendant: of less on contributory negligence more and on the higher degree of care owed by 9 the defendant." The courts uniformly that hold totally the blind and the partially are blind entitled upon to rely protection the of traffic sig- 4 intersections,- nals at and is this that wh6ther true they detect a 341 change the in by signal the sound a bell, of by notice from that others 3 42 a light has changed, or presumably by their realizing that pedes- other are trians starting and across cars that stopped. have At intersections not controlled by traffic when signals and streets crossing elsewhere than intersections, at whether blind the defectively or sighted pedestrian was exercising care due the circumstances in is a question which the appel- 4 3 late courts direct left be the to jury The American Reports Law re- marked penalties upon the of being partially blind being as against 3 44 totally so. Contributory negligence of the totally blind pedestrian, in being by motor struck a is vehicle, ordinarily left for the and jury, the jury usually brings a in for verdict plaintiff the which then is sustained by the court.,,' Not so with the partially blind. Their motor accident cases also are usually sent to the jury on the issues negligence of and contributory negligence, but the jury returns generally verdict a for the motorist which in turn court the sustains. usually American If the Law Reports counted has the correctly, cases and not is it clear entirely that 40 has it with to respect partially blind, the this may of rule a be life if not of law. the Though disabled have right the to streets the use highways and and common it is knowledge that exericse they the right, yet the doctrine of foreseeability invoked seldom is the in automobile cases. A early few cases that said drivers know must everybody what knows, else that consequently they expect must that disabled persons will among be the pedestrians they approach and that proceed must they a manner in to 339 Compare, however, Trumbley v. Moore, 151 Neb. 780, N.W.2d 39 613 (1949), where a pedestrian vision with impaired contributorily was held negligent a matter as of law. E.g., 340 v. Slaybaugh, Griffith F.2d 29 (D.C. 437 1928). Cir. Woods v. Greenblatt, 341 P.2d 1 433, Wash. 163 880 (1931). 342 Coco-Cola Bottling Co. 99 v. Wheeler, 502, App. Ind. N.E. 385 (1935). 193 See, 343 e.g., Muse v. Page, Conn. 125 219, A.2d 329 4 (1939); Bryant v. Emerson, 291 Mass. N.E. 227, 197 2 (1935); Reeves, Hefferon v. 140 Minn. 167 505, 423 N.W. (1918); Bernard Russell, v. N.H. 103 577 A.2d 164 76, (1960); Curry v. Gibson, 132 Ore. 283, 285 Pac. 242 (1930). 3 4 4 Annot., 83 A.L.R.2d 769, § 3, at 775 (1962). 345 Ibid. 4 6 Id. at 776. 3
62 19661 THE AND TORT LAW DISABLED 341 safeguard them against injury. Other courts rather, say, the that driver has right a to proceed upon the assumption that all pedestrians in his path possess normal faculties and that they will exercise those 3 4 8 faculties normally in the interests of their own safety. Thus, while a person who a digs trench in a street is bound to anticipate that disabled persons will pass that way, and, accordingly, must put up adequate warn- 349 ing guard, or that same trench-digger driving along the same street to work on the trench is not bound anticipate to the passage of dis- those abled persons, and hence need not drive truck his with precaution for 5 ° their protection. this At point the rule of hazards in street the is not applied to the driver automobiles of on the streets, alth6ugh basis the for rule the would seem to exist one in case no less than in the other. When the driver knows, or in the exercise of normal faculties should have known, the that pedestrian was disabled, he must exercise a high degree of cdre to avoid injuring The him. analogical and origin reasons given are by the Supreme Court of Louisiana: "The that rule motorists are held to unusual care, where children are concerned, applies also to adults, who, to knowledge the of driver, the possess some infirmity, such as deafness, or impaired sight, or who suffer from some temporary dis- ability such intoxication. as The physical infirmity in case, one and the extreme youth the in other, affect ability the to sense impending danger to and exercise judgment in the emergency by selection the of proper means and observing the necessary precaution to avoid an accident."" 52 the In leading case Weinstein of Wheeler,' v. the Oregon Supreme Court said that the driver "must use care commensurate with the danger" he when knows in "or the exercise of reasonable diligence ought 35 to know" that pedestrian the is blind. "It not will do drive to on under such circumstances and assume that one, who thus deprived of sight, 33 4 will jump the right way. The Oregon court at first said that the automobile must be brought to a stop but later modified this the to effect that the automobile be must stopped unless exercise the of due care will 3 47 See Warruna Dick, v. 261 Pa. 602, 104 A. 749 (1918); Doughtery v. Davis, 51 Pa. Super. 229 (1912). B48 E.g., FLEmaMG, TORTS 249 (3d ed. 1965). Aydlette Keim, v. 232 N.C. 367, S.E.2d 61 109 (1950). 349 Balcom City v. Independence, of 178 Iowa 685, 160 N.W. (1916); 305 Fletcher v. of City Aberdeen, 54 Wash. 174, 338 P.2d 743 (1959). See 350 text accompanying notes 173-74 supra. 351 Jacoby v. Gallaher, 10 App. La. 120 42, 46, 888, So. 890 (1929). 352127 Ore. 406, 271 Pac. (1928). 733 353 Id. at 414, 271 Pac. at 733-34. 34 Ibid.
63 841 54,, [Vol. CALIFORNIA LAW REVIEW 355 with satisfied be something care such Whether less. exercised in was circumstances the question a is the jury. for Whei should the driver that know pedestrian the is disabled? The or wheelchair crutches the of obvious lame are to notice him. Hearing the aids, on other hand, are Uncertain very inconspicuous. step and progress irregular obvious not are of signs blindness in the pedestrian they although may call for further observation by the motorist. The are dog the cane guide and of devices as important notice the to driver, whatever their usefulness to pedestrian. aids the as travel They are greatly emphasized courts by the doubt and no influential are very with 6 juries." Short of statutory command, however, courts have the yet not negligence is that held it law for a as a matter of a into run to driver 5 7 blind man cane a carrying by or guided a dog. In Cardis Roessel v. the Kansas court of appeals came City There doing to close that. the plaintiff, proceeding sidewalk along the a at steady pace, carrying a cane hand the in the street, nearest into walked of side the car defendant's crossed which sidewalk the front of in to enter him station. gas a Said the court in-sustaining plaintiff: for verdict a jury "saw, or Defendant could have he if seen, that had looked, plainly which was visible; and 358 his was it duty to look and In see." court the effect, that held the jury is find to entitled that defendant the or in saw, of exercise the reasonable 85l diligence, should have if plaintiff seen, the cane the it. carried White F. Cane Laws: Struggle The the for Streets Revisited The and partially of rights blind blind persons in traffic are the subject the so-called of white cane Generally, laws. but with sig- some and many minor nificant statutes variations, these the (1) free blind and partially blind white a carrying or being cane a guided by dog of whether negligence, contributory law as of a matter of or fact, (2) make who the driver them into runs effect negligent in per and se frequently guilty crime, a (3) of questions eliminate whether about the driver had of notice the pedestrian's total or partial generally blindness, and (4) give the blind partially and a legal status blind in traffic, thus making effective right their to use the in streets urbanized and automobilized 355 Ibid. See, e.g., 356 Cardis 238 Roessel, v. App. 1234, Mo. 186 (1945) 753 S.W.2d Curry Gib- v. ; Ore. 132 son, Pac. 283, 285 (1930). 242 357 238 Mo. App. 1234, 186 S.W.2d 753 (1945). at S.W.2d at 755. 858 186 Id. 1239, submitted was 359 The case the issue to humanitarian the jury on of under negligence which shown it must be plaintiff "that the imminent in was impending and danger and oblivi- or to extricate thereof unable ous saw himself, and that defendant and could or observed have plaintiff's said seen and observed, danger obliviousness inextricability and his or in at stopped, swerved, slowed, time warned." Id. have 1241, 186 S.W.2d at 756. sufficient to or
64 19661 THE AND TORT LAW DISABLED They alter law of negligence as it stood America. substantially the the courts extended the greatest even where in statutes, states before the pedestrian. the disabled to protection and of status blind the have the legal laws affected such However their to contributed of fact greatly matter they as blind, have a partially of are symbols the blind cane white and that the dog safety. Knowledge To fairly diffused. well the becoming but universal is far yet is as from provide cane and the dog the exist, does that knowledge this extent to avoid their part of drivers efforts on the inspire and notice effective 3 0 The to assist them others part of pedestrians and the users and on are by given the white cane, ironically, of success very for reasons the attention call They arguments against them: as the opponents of statutes advertising them a conspicuous class, fact in the to make. and blind of serving as a badge and sympathy, arousing public their helplessness, the more the view, this limitations. to According difference their and the spreads, the worse of white cane significance the of knowledge the 3 6 is that of one response man The blind blind. becomes for the situation than inconspicuous and dead. alive rather be conspicuous and he would a far position, that being from the blind the take of organizations The is the white cane status, unequal and dependent separate, their of badge 362 The blind. of the mobility independence and equality, of a symbol the the of Federation National the of hall the become has mark white cane 8 ' Blind. about the to conveying word are not campaigns confined cane White cane are designed as well to inform the public laws. white They generally the blind and aspira- among the conditions economic social the about and been long have campaigns Such lives. full for blind useful and the tions of sponsored cane weeks by white cane days white and around organized In 1964, the the Blind by Lions Clubs. and the National Federation of resolution by Congress secured a joint of the Blind Federation National of year as white cane each proclaim October 15 to asking the President 64 not of only President has spoken the his proclamations, day. safety In 3 6 0 New York legislature was considering enactment of a white cane law, a When the of distributed to chiefs police, attorneys the of the merits proposal was on questionnaire was conclusion The answered. proportion states. A high other officers in safety general, and to blind help definite administered, are a and laws, properly when publicized that cane white The Blind American, June 1961, Law, alike. He Walks by Faith Justified by sighted and 1964. July Beacon, May, June, II, II, The New A Survey, I, Mobility: p. 17; Liddle, 16; p. 1965, March Monitor, The Taylor, vs. Leichty Debate: Braille Cane White 361A The Braille Monitor, Dec. 1964, p. 1; Bartleson, Pedestrians, The Victory for Blind Legal Dec. 1963, p. 10. The Braille Monitor, Cane, White 3 6 2 op. Faith Justified by Law, by cit. supra note 360. He Walks of Convention Annual the at Humphrey's Twenty-fifth address the Vice 363 President 8. p. 1965, Aug. Monitor, Braille Blind, the The of Federation National 364 78 Stat. 1003.
65 841 94: [Vol. CALIFORNIA REVIEW LAW of travel cane but of its significance as a symbol the the significance white G6 8 lives." productive "normal live to blind the of ability the of Though the use the staff or cane of the by aid travel a as which blind and holes is person very feels avoids and way his obstructions doubtless 0 3 " ancient, know from and though we that the cases active blind persons for years, this country 100 over in cane or staff a such employed have device for giving notice to drivers and others that the the white cane as a user is blind is modem, by no strictly though American, strictly means related fabulous and to is the automobile, the of use the in growth the skyrocketing thickening accidental in- of traffic conditions, and the of or not. The white cane juries to pedestrians whether able-bodied statutes 7 began to the by states in be adopted the enactment Their 1930's.11 is and of the blind to to Lions traceable directly of organizations activities 368 Clubs. the to Today, due continuing activities of these organizations, have states forty-nine cane covering laws white explicitly and blind the 369 "incapacitated" pedestrian partially covering the and blind one 70 generally 14051 30 Fed. Reg. 12931 (1965). Reg. ; 365 (1964) 29 Fed. Balcom 866 178 Iowa Independence, of v. City 685, 160 N.W. 305 (1916); Sleeper v. 57 (1865). Town of Reading, 38 v. 52, 53, Vt. Glidden 244, 250 (1872); 52 N.H. Sandown, 367 Cal. Stats. 1935, 126, ch. 1-3 §§ (1935); Idaho Code S.L. 1937, ch. 46, §§ at 1-3, 62; Stats. 13; Nev. Laws 1939, ch. 58, at 53; N.H. Laws 1939, ch. 65, Mich. Act 10, 1937, at 1, § at 56-57; N.j. Stats. ch. 1939, 274, § at 1, 696. William 368 practicing in a blind Taylor, lawyer been Media, Pennsylvania has chairman of leader Blind's White Cane Committee and an active Federation in this the of the National quarter of a century. a over for work AxN. tit. 36, § 58 (1940); ArASKA Comip. LAws ANN. 869 28.25.010-.040 ALA. CODE 99 ARiz. v. STAT. ANN. (Supp. 1963); R Anx. 28-798 STAT. § (1955); "AwN. 75-632 75-631, 99 CA. Pnix. (1964); CODE REv. 643b; 643a, 643, §§ STAT. CoLO. AxN. 40-12-26 to 40-12-24 §§ 21, (1949); CONN. CODE ANN. tit. GEN. §§ 4144, 4150 (1964); (1953); STATs. REv. § 211 DEL. (1955); GA. CODE ANx. § 68-1658 (1957); FLA. REV. LtWS STAT. AwN. § 413.07 HAWAII (Supp. IDAHo CODE ANN. §§ 18:5810-18:5812 (1947); ILL. ANN. §§ 109-23 to 109-24 1963); 172a (Smith-Hurd STAT. ch. 95Y2, § 10-4925 1957); §§ STAT. Am. IND. 10-4927 (1956); to (1962); KAN. GEN. STAT. AxN. § 8-598 (1949); KY. REV. CODE §§ IowA 321:332-321:334 (1962); STAT. § 189.575 32-217 § (1962); STAT. LA. Rxv. ME. 22, 132-35 ch. ANN. STAT. REv. § art. 66/ (1949); , § 194 (1957); MASs. LAWS ANN. ch. 90, § 14a (1963); MD. ANr. CODE 2 § (1954); STAT. McE. ANx. 28:770 169.202 § (1960); AxN. STAT. MNN. Miss. CODE AN. ANl. STAT. § 304.080-304.110 (1959); MoNr. REv. CODES ANN. 8203.5 (1942); Mo. 99 NE. §§ 32.1143-32.1145 (1961); 28,478-28,480 STAT. REv. §§ (1956); REV. NEV. STAT. § 426.510 N.H. (1957); 263.58 ANi. STAT. REv. (1963); § (1961); NJ. STAT. ANN. § 4-37.1 N.Y. VEnIcLE & TRAmc LAW § 1153; N.C. GEx. N.M. § 20-175 STAT. ANN. § 64-18-65; STAT. tit. 39, § ANN. CODE NJ). (1953); ANN. 39-10-31; OmO REV. CODE §§ 4511.47, 4511.99E tit. 7, § 11-13 (1951); ORE. REv. STAT. § 483.214 (1953); PA. STAT. STAT. OxYA. Awm. (1965); § Ax r. tit. 75, 1039 LAWS § 31-18-13 GEN. R.I. (1960); ANN. S.C. CODE 31-18-16 to (1956); 44.9932 TEM. CODE Am. §§ 59-880 to 59-881 (1955); TEX. REV. Cxv. § 44.0318-1, (1960); 23, (1948); ANN. § 41-6-80 (1960); VT. STAT. Awr. tit. CODE § 1106 art. STAT. 6701e UTAH ANN. CODE VA. (1959); 46.1-240 (1950); WASE. §§ 46.1-237 to 46.60.260-.270 §§ REV. CODE ANN. § 346.26 (1958); W. VA. CODE Aiqw. § 1721(373) (1961). Wis. (1962); STAT. 0 3 7 § 31-163 (1957). The 1947 Am. which declared the cane WYO. STAT. amendment
66 19661 LAW AND TORT THE DISABLED Jurisdictional 1. the White Cane Laws Analysis of is that of Kentucky. It provides: typical white statute cane A fairly a to cross public street attempting a pedestrian or crossing is "Whenever extended or or carrying in a raised a by dog guided guide or highway, or white in color white in color or is walking cane which stick position a inter- the approaching of every vehicle the red, driver tipped with and to cross, shall bring attempting where such pedestrian is place section, or of or place arriving at such intersection stop before vehicle his a full to as precautions may be proceeding shall take such and before crossing, 3 ' for unlawful made is It ' pedestrian." such to injuring avoid necessary to incapacitated" or partially blind totally otherwise "or not any person public it in that position "while on any a to do such at least cane or carry 3 7 2 totally as depriving not be construed is act The to street or highway. persons" without a stick or incapacitated "otherwise or blind partially or upon pedestrians by privileges conferred law "the dog of and rights 37 3 persons to have failure of such Nor is the or highways.1 crossing streets be to "held the streets, highways or sidewalks" or a dog cane "upon 7 4 is Violation contributory negligence." evidence of be nor constitute to 7 dollars. not to a twenty-five fine exceed punishable by made to: as blindness or partial the Kentucky statute of provisions The the position the color of cane; the incapacitated; the otherwise blindness; the of duty the dog; the of use alternative the in is to be held; which it of the streets and highways; preservation crossing the both driver; of not they that are dogs; declaration or canes those of without rights all sanction, of a penal are appending negligent; the and contributorily statutes. cane the in features white fairly common only extended are statutes the white cane of benefits the five In states 3 7 protection extend to the states Forty-three "blind. to are those who 3 77 Fifteen . handicapped visually the and blind partially or totally wholly, designated subse- as "incapacitated" was in the class blind to be included using and dog or wholly the appears thus It 1955, ch. § 70. 225, Sess. Laws Wyo. 1955. in repealed quently of the statute. be within the meaning "incapacitated" Wyoming may not partially blind in have been cases so construing the statute. There no 3 1 Ky. 7 REV. STAT. § 189.575(2) (1962). 3 7 2 Ky. RFV. STAT. § 189.575(1) (1962). 373 Ky. REv. STAT. § 189.575(3) (1962). 3 4 7 Ibid. 375 REv. Ky. STAT. 189.990(1) § (16) (1962). See note 369 supra for the Nebraska, Minnesota, Jersey. New Illinois, 376Arkansas, statutes. applicable 377 Alabama, Alaska, Arizona ("blind industrial or blind," which uses 20/200 periph- or Florida, Georgia, Connecticut, Delaware, Colorado, standard) California, vision eral defect Massachu- Maine, Kentucky, Maryland, Louisiana, Kansas, Indiana, Idaho, Hawaii, Iowa, York, New Hampshire, New North Missouri, Montana, Nevada, Mississippi, Michigan, setts, Oklahoma, blind), include partially to is defined Ohio ("blind" Dakota, North Carolina,
67 841 54: [Vol. CALIFORNIA REVIEW LAW extend states protection the of white cane the those to laws "otherwise 8 incapacitated." these As commonly jurisdictions specify that the pro- tection statute the of shall to extend the "wholly or partially blind or otherwise incapacitated" other the embraced disabilities presumably are of not a character. visual Yet the other must disabilities be like blindness partial or blindness in that involve they hazards traffic can be which diminished by the the use of or cane dog. The popular most device white the is cane, with red or without a tip, 3 79 which is recognized forty-one in states. Ten jurisdictions also recognize 8 use the of metallic, chrome, aluminum or light-colored three metal. Only 3 8 states required the cane be to all white, five ' while require the white 8 2 cane a have red In tip. eighteen the states, cane-using need blind only 3 carry use the cane or to comply statutes' the with conditions" while twenty-six specify that the cane must carried be "raised in the or ex- 8 4 tended" position. There are no cases construing quite this uncertain expression. Presumably object the requirement of the to ensure is that is the cane a in such position visible as to be the to approaching motorist pedestrian. or This object accomplished be can by carrying the mere or using the long of fiberglass white coming cane now into vogue. A few Oregon ("blind" is defined to include partially blind), Rhode Pennsylvania, South Island, Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Vermont, Washington, West Virginia, supra Wisconsin. See 369 note applicable the for statutes. 7 8 3 Alabama, Kansas, Florida, Louisiana, Kentucky, New Maine, North York, Dakota, South Carolina, South Tennessee, Dakota, Texas, Virginia, Vermont, Virginia. West See note 369 applicable for supra statutes. Alaska, 379 California, Colorado, Connecticut, Delaware, Georgia, Florida, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, New Nevada, Hampshire, New Mexico, York, New North Carolina, Dakota, North Oklahoma, Ohio, Pennsylvania, Oregon, Island, Rhode South Carolina, Dakota, South Tennessee, Utah, Texas, Virginia, Vermont, Virginia, West Wiscon- note 369 See sin. supra for the applicable statutes. 380 Alaska, Louisiana, Arkansas, Maine, Maryland, Mississippi, New York, Pennsylvania, Virginia, West Virginia. Not are types of all canes each by recognized these of states; each listed state does one recognize of the metallic type note See devices. 369 supra ap- for the plicable statutes. 381 Minnesota, Washington. Nebraska, note See supra for the 369 applicable statutes. Arizona, Alabama, 382 Arkansas, Indiana, New Jersey. 369 See note supra for applicable statutes. 383 Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Georgia, Idaho, Illinois, Indiana, Michigan, Iowa, Montana, Nebraska, New Nevada, Oklahoma, Jersey, Utah. See note the supra 369 for applicable statutes. 3 8 4 Alaska, Delaware, Florida, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Mississippi, Missouri, New Mexico, Hampshire, New York, New North Dakota, Ohio, Oregon, Rhode Pennsylvania, Island, South Dakota, Carolina, South Tennessee, Texas, Ver- mont, Virginia, West Wjsconsin. Virginia, 369 See note supra for the applicable statutes.
68 1966] THE AND TORT LAW DISABLED have altered jurisdictions substituting expression, the length,""' arm's "at 7 '38 cane." exposed "an using or carrying or extended," arm "with Thirty-seven states protection the extend of the white cane statutes 8 8 user the to of the guide in the alternative. dog permit States which blind, and the otherwise incapacitated the use of blind, the partially the 8 9 dog guide the by not do forbid its use others, the unlike common statutory with practice cane. the to respect ap- the or motorist who pedestrian duty sighted on The imposed proaches with the protected class of persons varies or comes in contact with the jurisdiction. Thirty-four states to come to the require motorist a full in and stop such take cases, all be necessary as precautions may to 390 injury to the pedestrian. accident Two of these states require avoid or the remain stationary motorist to pedestrian until clears the the road- 9 1 the motorist, after stopping, requires leave a and way, Maryland to 9 2 pedestrian the out of the street. until Virginia requires only clear path is 33 motorist Eight that the stop. motorist the require states stop only to 394 necessary to avoid accident or injury; when it require the driver is nine yield of way and/or take the right to avoid reasonable care injuring the 95 without pedestrian protected specific stopping. mention of Forty-one 8 duty states impose the statute on "approaching" under the the ' motorist. 985 North Carolina. Maryland, 369 See for the applicable note supra statutes. Minnesota. See note 380 supra for the applicable statute. 369 387 Hawaii. note 369 See supra applicable for statute. the 3 88 Arizona, Florida, Hawaii, Illinois, Iowa, Alabama, Arkansas, Alaska, California, Maryland, Michigan, Maine, Mississippi, Mis- Kansas, Kentucky, Massachusetts, Louisiana, souri, New Jersey, Hampshire, Nebraska, New York, North New Mexico, New Carolina, Ohio, Pennsylvania, North Dakota, Oregon, Carolina, South Rhode Island, Dakota, South Tennessee, Texas, Utah, Vermont, Virginia, West Virginia. thirty-two require only these, Of the the "guide use of or dog" without dog" "seeing-eye other more; five-Arkansas, the Hampshire, Iowa, Michigan, New animal and Oregon-require the be trained," "specially in a particular position. See note 369 supra for harnessed, applicable statutes. or the See 74 supra for applicable statutes. 889 note 30o Arizona, California, Georgia, Colorado, Florita, Indiana, Iowa, Kan- Idaho, Illinois, Kentucky, Maine, Maryland, sas, Michigan, Massachusetts, Missouri, Minnesota, Montana, Nebraska, Hampshire, New Mexico, Nevada, New North North Dakota, Carolina, Oklahoma, Vermont, Carolina, South Island, Tennessee, South Virginia, Wash- Rhode Oregon, Dakota, Wisconsin. See note 369 supra for the applicable statutes. ington (inferentially), North 391 See note 369 supra for the applicable statutes. Nebraska, Carolina. ]f. 892 art. COD ArNN. 194 § 66Y/, (1957). 93 8 VA. CoDE § 46.1-237 (Supp. 1964). Louisiana, Mississippi, New York, Pennsylvania, Texas, West 894Alabama, Alaska, note 369 supra for the applicable statutes. Virginia. See Connecticut, Delaware, Hawaii, New Jersey, Ohio, Utah, Wisconsin, 895Arkansas, See Wyoming. 369 supra for the applicable statutes. note Alabama, Florida, California, Colorado, Connecticut, 896 Georgia, Hawaii, Idaho, Alaska, Indiana, Iowa, Illinois, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts,
69 54:8941 [Vol. REVIEW CALIFORNIA LAW imposed The motorist to stop, take precaution, yield and the on duty the 97 states. nine in pedestrians sighted on imposed is like driver to yield the right of way, or states which the Those require without reference care to where or when, stop, or take specific reasonable require nevertheless shown the be that deference disabled pedestrian, and within the space limitations prescribed by the wherever he is found mention statute. "approaching" adds nothing particular The specific of observing." does of the term "upon use The nor the to the statutes, that acuity of observation motorist graces the remains bound to which and presumably will be so with man, reasonable ubiquitous charged he should have rather than him whom he did in observing him whom requirements acts specific the by the driver, such as fact. Similarly, of and the a complete stop in all cases, do not sounding coming horn to by the than is secured pedestrian to disabled provide greater protection driver to "take reasonable care." The the is thus duty of the driver prosecution the technical violation of for criminal possible with burdened a actions under the circumstances statute, well have been while his may the of the pedestrian from injury. appropriate to protection a that must "immediately come to driver full provide the Three states "approaches within" a specified number of stop" of the dis- when he feet 98 or distances are but The specified ten feet, pedestrian. abled three short as to distances it impossible for an automobile to stop or so make other action within them. If the driver need not anticipate take evasive commanded of until he is within the distance mentioned, the action him question only the remaining the the pedestrian's is extent of injuries; the apparently be strict liability, and his criminal driver's civil liability would of because the practical impossibility of compliance. doubt in cast liability interpret these statutes to require the driver to Judges might reasonably a come when he is three or ten feet from the pedestrian. Thus have to stop this "An of draftsmanship: solve operator of a did Wisconsin problem 10 . . before approaching closer than stop feet ... "I shall vehicle . provide that the protection of the statutes applies Thirty-six states 400 pedestrian to the the highway. cross Thirteen states wherever seeks Missouri, Montana, Nevada, New Hampshire, New Mexico, Michigan, Mississippi, Nebraska, Carolina, York, New North Pennsylvania, Dakota, Oregon, North Ohio, Rhode South Island, Tennessee, Texas, Vermont, Virginia, West Virginia, Wisconsin. Carolina, South Dakota, See supra the applicable statutes. note 369 for Alabama, 397 Alaska, Arkansas, California, Colorado, Idaho, Indiana, Montana, Nevada. note supra See the applicable statutes. for 369 (three 398 (ten feet), Oklahoma (knowingly within three feet). feet), Michigan Georgia supra for the applicable statutes. 369 See note STAT. ANN. § 399 (1958). Ws. 346.26(1) Alabama, California, Colorado, Connecticut, Delaware, Florida, Georgia, 400 Arkansas, Idaho, Indiana, Iowa, Kansas, Kentucky, Maine, Massachusetts, Michigan, Hawaii, Illinois,
70 19661 THE AND TORT LAW DISABLED 4 the intersections and crosswalks. protection ' Only five states restrict to 0 2 the crosswalk controlled by an officer or signal. intersection deal with or Presumably follow the it that would in dis- where states remaining the abled right pedestrian is given the way without reference of places to are there where disabled signals or officers, the pedestrian prevails over claim any built the of officer command the on by the right or conferred though the light. Nevertheless, makes no the Texas statute of mention the signal-controlled crossing, state the courts in that unwilling to appear to permit the blind person recover action where civil a in he entered the light."' against crossing the Twenty-two that their states provide white cane statutes are not be to construed to deprive the disabled as so canes or dogs pedestriah without rights of they would otherwise to which nor are be entitled; they be so to of disabled pedestrians to use the or dogs construed failure that canes 4 0 4 or evidence thereof. shall Two constitute contributory negligence states that provide only statute not the is white cane rights to affect other out- 5 0 4 the one state, Illinois, uses the contributory negligence statute; dis- side 0 without other rights,1 reference and the remaining twenty-five claimer to no saving states have clause In states, type. of either these presumably, saving clause of absence a be construed to deprive will not disabled of which rights pedestrians before statute theirs the were or to affect the law contributory negligence to disabled applicable otherwise pedestrians without compensatory devices. thirty-eight states In of the white cane statutes are made a violations Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota, Nebraska, Oklahoma, Oregon, Ohio, Rhode Carolina, Island, South South Utah, Tennessee, Dakota, Vermont, 369 Wisconsin. note See Virginia, for the applicable statutes. supra 401 Minnesota, Mississippi, Missouri, New York, Alaska, Arizona, Louisiana, Maryland, North Carolina, Pennsylvania, Virginia. Washington, Texs, West Alaska, Maryland, New York, Carolina, Pennsylvania, North Virginia restrict the Texas and West applica- statutory to "crosswalks or intersections"; bility crosswalks Washington to Minnesota, only; Arizona, intersections to Louisiana, and Mississippi use the term "at or near" only, and Missouri, crosswalks See or intersections. note for applicable supra 369 the statutes. 402 Arkansas the says protection that special apply crossing places not at does controlled traffic signal; by a Maryland they do not apply at crossings that intersections controlled or an by officer a signal; North Carolina, and Virginia or they do apply when that not the is that they do apply when it is controlled but a signal; and New Jersey manned crossing by that are not to traffic the pedestrian's signals affect See 369 supra for right. note applicable statutes. 4 0 3 Meacham v. Loving, 285 S.W.2d 936 (Tex. Sup. Ct. 1956). Alabama, Florida, Arizona, 404 Kansas, Kentucky, Louisiana, Maine, Massachu- Alaska, Mississippi, Missouri, setts, North Dakota, North Carolina, Pennsylvania, Rhode Island, South South Dakota, Texas, Vermont, Virginia, West Virginia, Wisconsin. See note 369 Carolina, for applicable supra statutes. the Hampshire, applicable See note 369 supra for the 405New statutes. Oregon. 4 0 6 ILL. STAT. Awx. ch. REV. § 172A (Smith-Hurd 1957). 95Y2,
71 841 54: [Vol. CALIFORNIA LAW REVIEW offense, the criminal small a being generally penalty term short fine or 0 7 imprisonment. eleven In the states recourse only against driver the is civil a damages."" action for 2. Critique and Reform Suggested saving The in the clauses cane white statutes preserving of rights the the blind non-users of canes or dogs in traffic as they existed in the law the before adoption the of white cane statutes prudent seem and pre- cautionary rather strictly than necessary. That those persons and their are rights mentioned not the in cane white statutes be would weak and a artificial of basis construction statutory upon which deprive to of them minimum the protection- them afforded under pre-existing law. On the other hand, provision the failure that compensatory use to devices not is contributory negligence or evidence is thereof innovative and desirable. is The reason to for hard find the penalizing do disabled who not such use devices, whatever for cause-lack of knowledge about existence their or use to them, how embarrassment becoming at conspicuous, or finding a by individual the the that devices helpful are not him. to It seems particularly unjust to penalize those had not who have do not have or opportunity the receive to training use. their in right to The in live the world should not made be to depend on of the use these compensatory devices. the For same reasons, the provisions Arkansas in the Arizona and white cane requiring statutes the blind to use these devices and making the penally requirement enforceable be should repealed. this If objective is be attained, to by be should it educating the in blind the techniques 0 9 of the using their and devices in values. 407Nineteen provide states the violation that statutory the of a is provisions misde- meanor, without the specifying penalty to imposed be upon conviction. Alabama, Arizona, Georgia, California, Idaho, Louisiana, Minnesota, Montana, Nebraska, North Nevada, Carolina, Ohio, Oklahoma, Pennsylvania, Rhode South Island, Carolina, Dakota, South Vermont, Virginia. Eleven states addition making to in the violation specify a misdemeanor, permissible the bounds punishment of which is to a limited fine. Arkansas, Colorado, Con- necticut, Iowa, Indiana, Maryland, Kentucky, Massachusetts, North Dakota, Tennessee, Eight Texas. states, declaring after be to violations misdemeanors, provide fines for money and/or jail as sentences punishment. Alaska, Florida, Kansas, Maine, Michigan, Mississippi, Missouri, West Virginia. See note 369 supra for applicable the statutes. 408 Delaware, Hawaii, Illinois, New Hampshire, New Jersey, New New Mexico, York, Utah, Oregon, Washington, note See Wisconsin. for supra 369 the applicable statutes. 40 9 The Arizona statute, while penally requiring blind the to person a use compensatory at device, same declares the time unaided such contributory be to not travel negligence or evidence thereof. Thus, blind the pedestrian criminally is liable for his failure take to the prescribed action to protect his person while disabled not he is in the civil courts from recovering injuries for the which a suffers he as breach result his of duty. a of legal There are variances some also odd in draftsmanship. Arkansas, In are given users cane the right of way "travelling along or the across streets highways"; and it is only when "walking the along and highways without streets" cane a blind travelers that commit a misdemeanor.
72 19661 THE AND TORT LAW DISABLED provision The in which the cane is to be held-that about the way It is position-should be eliminated. in extended a and be raised must it by visibility of the cane increasing drivers, not adapted the to necessarily and high- streets crossing while the of use the cane denies unnecessarily obstructions in the ordinary as to avoid travel and ways a aid way oncoming pedestrians on for creates a certain danger trenches, and crowded streets. coming within a specified the that before driver stop The requirement mentioning or that, without disabled the dis- the distance of pedestrian to a full stop immediately tance, approaching the disabled to come upon determinable of laying down an objectively the pedestrian, has advantage safety one contributes to the obviously of the and standard which question might be raised, however, as to whether this pedestrian. Some too mechanical exacts of the driver more than is is requirement and protection for pedestrian. necessary of the the white of statutes penally enforceable provisions the Making cane not add significantly to against achievement of the ob- drivers does the sanctions penal is hard to imagine that the It provisions. of jectives those pedestrian disabled a into act The effect. of running a here have deterrent a is, of deliberation or design. When it usually more drastic is not matter in elsewhere the law. provided order and are already are sanctions in cane statutes deal with accidents: with reducing their number The white with to driver of the physical condition of the pedestrian; the notice by thence do occur, to the drivers and cost of them, when they the allocating to insurance companies; and with implementing the right of the dis- the right of way in traffic and world the by giving them a to abled live in eliminating, ordinary concepts of negligence law. not the minimizing, if matter, too, law enforcement agencies are very reluctant As a practical to was after a vigorous campaign of only by an or- It prosecute. pressure the and Department Police Berkeley of blind the the that ganization County finally proceeded with a District office Alameda Attorney's located law, which is California's white cane under 1965, prosecution in 410 Code and declares breaches to be a misdemeanor, in of a the Penal inter- an user at cane blind a killed white down run and had who motorist the found and jury the case without a tried who The section. judge, him to one hour's probation" guilty sentenced as charged, motorist pedestrian without compensatory device the blind sanction the applies to penal Arizona, In is walking on when street or highway." It is only at intersections that the blind cane he a the is pedestrian disabled the while "on and is only way; of right the it is user given be failure use dog or cane may highways to held to constitute prima fade evidence that not" contributory negligence. See note 369 supra for the of statutes. - applicable 410 PEN. CODE §§ 643, 643a, 643b. CAL. the People McGlynn, 411 C-8471, Municipal Ct. for v. Berkeley-Albany Judicial No. Dist., July 15, 1965.
73 841 54: [Vol. REVIEW LAW CALIFORNIA CONCLUSION particularly tell us that tort law, always the on law Writers torts of reaching a new stage in conditions, is social now changing to responsive 4 1 of primarily with protection the concerned Originally development. its the industrial period of revolu- came to focus, in the and land, it property shifting on injuries to the person, and on other forms of property tion, conduct the of infringed to kind from the interest of kind emphasis 41 3 are millions of individuals when injury. Today, the created which other kinds accidents, which of many traffic, and industrial, exposed to responsibility for powerless to individual prevent, less more or are they giving is about them brought kind conduct of the which them based on In accom- harm. of based on the fact way responsibility to community negligence of concepts to it, contributing this and to change in modating imposed on the in- has liability been undergone a transformation; have insurance carriers which the private risk; of created operations the dustry social and liability; of costs burden and the distributed have the assumed hazards men against to field the entered protect increasingly has insurance disability-hazards over and unemployment, survivorship, old age, of 414 today law of torts or the no control. little Does has which the individual broad social and reflect these physically disabled the with in its dealings to the policy does respect with stand how it especially, changes, legal and of economic, and physical life into the social, the disabled integrating of asked reviewing in to be is question central the This community? the in well. Does the law of torts as affecting the fields disabled other many consciously reject that policy, and current application concepts its basic actively passively acquiesce in it, or of indifference, it a as matter treat not do that the courts clear is it alternatives, these Among it? implement (1956); 12.1 § & JAMES, HAPER 2 1965); ToRTs 412FLEINGa, 108 ed. (3d TORTS 5 (1959). A CHANGiNG SocaETY ch. IN LAW FRIEIMANN, op. 412. 413 cit. supra note FsmnmrN, cit. supra ch. 2 HARPER & JAMES, op. at 6; FLraxmmco, op. cit. supra note 412, Ibid.; 414 Beyond of forms current TORTS 1964). (3d 4 1, ch. ed. PROSSER, ch. note 412, 11-13; writes: Friedmann lies loss insurance. Professor insurance insurance and the social liability for insurance have introduced compulsory liability which countries main the in "Especially company insurance to the liability from the driver shift of effective motor car the operators, turned openly be liability insurance should not whether question the raised increasingly has individual abandonment of the principle of an insurance means insurance. loss Loss into loss incurred as a for compulsory insurance of and substitution frank tort responsibility an to that extent civil litigation and replaces operations. Administration certain result of is There this sphere of private relationships ... social into is injected insurance of element the justifies accidents traffic of importance for the that idea the social support increasing public sphere. Insurance relationships to from the private the of complex of legal this transfer industrial against assimilated to insurance becomes conception that in against traffic accidents countries from general law separated all common been years in many has accidents which for cit. turned a social insurance." FamrAuNi, op. and supra note 412. liability tort into
74 19661 THE AND TORT LAW DISABLED or rejection. Indif- either by way of support policy, positively to this react atti- describe the judicial accurately not also do acquiescence and ference is there In the cases, characterization. the precise is Unawareness tude. implications the policy and its of systematic a examination like nothing reference occasional hard to find an scour One must torts. law of for the it. to imperfectly However of the land. policy avowed the is integration Yet self-support and self-care expressed in the is carried out, it variously and 5 41 pro- rehabilitation sprawling the Act; Security of the Social provisions 41 6 rehabilitation orientation and the states; and the nation of grams educa- the programs for country; the across the multiplying now centers quite still opening up, schools; the in the public of the disabled tion the dis- civil and federal service to in of areas, state many incompletely striking down special statutes basis;417 non-discriminatory a abled on as of the disabled employment the barriers to arbitrary and artificial 41 8 unofficial and official increasing the and the schools; public in teachers In merits. individual their of basis on a disabled of persons acceptance the of the creation in force dominant the been have courts the the past, true generally This has been liability. and conduct rules of substantive their rights to and disabled, to the physically with respect and specifically jurisdictions, many in periods and In fact, earlier in the land. in be abroad The times. the of a policy in advance embodied this on rules subject their of a as matter field. Neither the entered increasingly now has legislature judicial of independent a matter nor as judicial role the independent thus declared of integration the policy disregard courts the should wisdom into brought be not only should law rather decisional legislature; the by active aid and comfort. but should that it policy give with harmony 419 case, recently did in the Haley the of House Lords as recognize, To 420 integra- social that since, long have done courts as and, many American considerable and that and is into coming practice disabled tion of the into the are venturing severely disabled the numbers of ever-increasing inevitable- sense a practice, is in the law to that adapt and to community, are decisions these judicial But some in slow jurisdictions. inevitably and (Supp. I, 1965). U.S.C. 303, 1201, 1351 415 79 Stat. 286, 42 (Supp. I, 1965). 1282, 29 U.S.C. § 31-45 416 Stat. 79 Aug. 1965, Teachers, The Braille Monitor, Clavich for Blind Cae-Outlook 417 The p. 49. 1965); (Supp. 19a § 15, ch. LAWS GEN. ANN. MAss. 13125; § EDUC. CODE CAL. 418 (1962). 24, § 12-1209 STAT. AN. tit. 3004; PA. § LAW EDuC. N.Y. 419 Haley London v. Elec. Bd., A.C.  778 (1964). See 420 v. Balcom City of Independence, 178 Iowa 685, 696, 160 N.W. 308, 1310 (1916); Div. App. 193 Co., Gas v. Consol. Shields (1872); 244, 251 N.H. 52 Sandown, v. Sleeper Pac. 197 308, 39 38, 115 Wash. 305, Masterson v. Lennon, 240 Supp. (1920); N.Y. 183 86, (1921).
75 841 54: [Vol. CALIFORNIA REVIEW LAW the response not to the policy, to what is and not also to what a fact to and demands be. policy are what now summon the spirit to ought of The the the acknowledgement the legislature in the law and reform of role of of the to of torts as disabled. it applies casting aside the traditional Such reform would not necessarily entail of though might help. What is that negligence, of the of framework law the judicial analysis and discussion utmost importance about carrying on disabled of live in the world in the concepts and catch the rights of the to of negligence-unreasonable harm, fault, due of risk phrases of the law prudence, contributory negligence, care, reasonable man of ordinary that individual volition and just not foreseeability-is caution, greater in areas in which they personal no longer of conduct are stressed are important is that these concepts and paramount significance. The point phrases in do not sharp place relief at policy social the stake. Indeed, to obstructing come of that the they actually close dangerously view asked is not policy. the defendant created an The question to be whether unreasonable risk interfered but he whether harm, of the with effectuation the of integration of the disabled; not whether the the policy of social as reasonable man of ordinary prudence plaintiff conducted himself a of pursuant the circumstances, but whether he acted light acting in the all a be part of his community. Such to transformation of the right his to a forms be applied by the judges would not remove all legal and tests to the of the disabled person. Other policies regarding limitations on conduct court of called the ordinary transactions of life, the what English appeals to the to dig trenches in the streets, would have those as such related need scope. integration, policy of necessary too, has its to be given their The capacity be beyond the physical pushed It limitations: built-in own cannot the disabled. of But implementation of policy many does mean that that and those not disabled as unreasonable are by who acts now regarded are within the disabled person's sense foolhardy, but which nevertheless must of the risks he or the regain to run would life-bestowing benefits of not be taken at his cost, or even at the cost of the the mainstream, would the at of the community. trench-digger, but cost could same also, it is recognized, within the The be result achieved existing law the policy into the reading tort by traditional framework of that conduct of the disabled tests, which by declaring reasonable person is in conformity unreasonable with the policy, and the of that conduct with the policy. This method defendant reform fits in which interferes of to changed social of the common law in adapting historic with the mode accomplished By reform can be the gradually, conditions. it, and economic of discontinuity in the law, without within all the any appearance and other trial. On the this hand, case-by-case safeguards of conservative
76 1966] THE AND TORT LAW DISABLED method of reform tends obscure, to not only from everybody else, but from the judges themselves, the changes that are necessary and that are being made. It confuses the new direction by using the old signposts. The hands are less likely to be the hands of Esau the if voice is that of Jacob. Basic determinants decisions of in the law of torts, are, textwriters agree, morality, admonition, compensation, imposition of costs on those who have a capacity to bear them, and the interest furthering of desirable activity without imposing disproportionate burdens on any individuals 21 or groups. Some of the overtones and some of the partially buried presuppositions of the reasonable man formula are moralistic and in- dividualistic, deriving from origins the of modern negligence law in the industrial revolution and concomitant ethical, economic and political philosophy. In the era of unrestricted free enterprise, the law of torts moved toward the position that there could be no liability without fault 2 2 and no fault without personal blameworthiness. Dean Prosser em- phasizes that personal fault has become, is or becoming, legal social or fault-"departure from the conduct required a of man by society for the 42 3 protection others" of -and that legal or social fault giving is way the to notion that primary the task is decide to which interest should prevail ' 4 2 4 "even where no one is at fault. But the turn of the century is still turning; and the process of discarding fault liability is far from complete. In considering what is desirable possible or social policy, great weight will always have to be given to the "ethical or moral sense of the com- 4 ' 25 munity, its feeling of what is fair and just. Today the integration policy beginning is to rest on such community feelings. But fault analysis is remarkably fruitless where there is no fault. Whether the disabled pedestrian the or city or its insurance carrier should bear the cost of an injury to the pedestrian resulting from a hazard the in street created by the city is a question of social policy, not of morality. Is the policy of integration of such social importance that it should outweigh the policy, also judged in terms of its social importance, of allowing public bodies which about go digging sewer ditches and opening other holes in the 4212 HAIER & JAnrES, op. supra cit. note 412, at 11S; § PROSSER, op. cit. supra note 414, at § 4. 4 2 2 Professor Fleming writes that, in the era of the industrial revolution, "the axiom 'no liability without fault was quickly raised to dogmatic a postulate of justice, because it was best calculated to serve the interests of expanding industry and the rising middle class, in relieving them from the hampering burden strict of liability and conducing that to freedom of individual will and enterprise which was at the forefront of all contemporary aspirations." Ftminio, op. cit. supra note 412, at 108. 42 3 PROSSER, op. cit. supra note 414, at § 4. 424 Ibid. 425 2 HARPER & JA Es, op. cit. supra note 412, § 11.5, at 793.
77 CALIFORNIA 841 54: ['Vol. REVIEW LAW to the burden, be it slight or great, of seeing to it do street without so disabled, the that among other people, not be injured will thereby. compensating of Ideas and victim the admonishing the wrongdoer are to that is the fault. about presuppositions The wrongdoer, basically linked compensate the victim, that is, the party party who was at fault, must who was innocently going business, the wrong for about his of Ideas done. punishment, compensation, shade and prevention The into each other. admonitory torts objective the law of of reducing at aims today accidents governing by future imposition the through conduct liability. of This, however, It can have is a one way street. lia- a deterrent impact only if bility the on imposed is defendant. disabled prospective The plaintiff does not the negligence read wait to latest decision before going out the into mail a letter, streets to a visit or bus, friend. a catch Even if he did do so and it, could the chances understand would he good are that it. reject reasonably courts' disabled person often do not The notions prudent of a with agree the reasonably of notions the prudent disabled person himself. most He, for the is convenient, part, out what figures safe or possible, for of experienced and knowledgeable per- him, with the sometimes advice sons, basis the on infrequently not trial and of his own individual error. hand, On the other of it liability-conscious is the business cities, insurance and construction carriers, companies, transportation and to keep abreast judicial the of latest decisions to an with altering eye so operations their to as avoid reduce liabilities. or the with So the distribution costs of of accidents. The gener- plaintiff ally bear personally cannot them generally does not carry and insurance them. against To the extent that he can be bear them they may ruinous. The hand, other the on defendant, a transporta- city, or a construction or company, a tion place business, store, or other accommodation, public of can wider transmit to the cost a rates, prices, means by public of taxes goes for the automobile driver, who, though he or insurance. This also is only somewhat better pedestrian off the disabled than down, his car struck yet covered is usually end, the insurance. by In the those who have the capacity must do so. Even aside from this principle to bear costs economic of necessity, the should cost social policy of by society. borne be If the of socially is integration policy valuable, then it should be financed disabled traveler. all by the necessitous least of public by generally, the moralistic, fault bases while the reason- Thus, the individualistic, of able the law of man doctrines of particular no torts have relevance to of policy, and when they are invoked any- integration the most aspects way, tending more today are they give support to that and more to policy, distribution aspects of the reason- compensatory, cost and admonitory, the to impose the they tend administration actual in man able doctrine-as
78 19661 THE AND TORT LAW DISABLED the general in public-move the on cost the and the defendant on liability necessarily not though integration, of policy the supporting of direction to the policy. relate that for reasons or consciously for effec- a vehicle or as of integration, policy for the a substitute As weak- serious another from suffers standard man reasonable it, the tuating reasonably the that juries instruct may the courts much However ness. superhuman not human, possessing mortal, idealized an man is prudent however or depravities; weaknesses subhuman human or no but virtues, with confused be to not abstraction is an he that repeat may often they and juror; or judge a with not especially and individual, identifiable any of all the of light in the acts he that emphasize may they much however is, the plaintiff when disabled is physically that he and circumstances excluded are (blind people entirely able-bodied almost are jurors the limbs, aging if somewhat has sound judge the and jury service), from but hear everything can counsel, to according and, eyesight, fair enough their in is unavoidably conceive they The abstraction argument. good a experi- their filter of the through applied be will event, any in and, image the through erect legs, feet and good on Standing make-up. ences and receding or eyes approaching through peering muscles, taut of strength image, personified their or juror, or judge the acuity, visual 20/20 from disabled physically otherwise and the lame, the deaf, the blind, the provide their of all light of the in prudence and of reasonableness a standard with the about imaginings erroneous quite often some including circumstances, this dis- from applied and Created disability. particular the of nature not is which weakness an inherent contains standard the advantage-point, a of use proper the about testimony of taking occasional the by overcome man prudent reasonably the of actions The devices. and aids other or cane reasonably by the taken not those to be out turn circumstances in like not a man which but those circumstances, in the man actually prudent At them. in were he if take would he imagines circumstances those in what about ignorant is he reasonably moreover, judgment, of time the Hunt of Judge statement the author, by its intended sense In the they are. not knowledge of have sources the blind "that v. Ruckman in Davenport 4 2 the sense, another in But superstition. is mere others"" to available more is a disability with Experience truth: basic a contains statement it than have who to those the disability about knowledge of source ready not. do who those to formula- Prosser's to Dean return world-to the live in to right The at began-entails we which with proposition the and problem the of tion of use the through it to access physical safe and free of right a least 568 (1868). 42037 N.Y.
79 CALIFORNIA LAW REVIEW and sidewalks, and highways, and the common modes of streets roads transportation, and interchange. communication, well as includes full It places and equal access to public of accommodation, places designed to men accommodate of gaining access in the course to the world. The right the consists in world live to the in to live out part of right The blind, the deaf, of it. lame, and otherwise the the physically disabled, the have same privacy right to that others do; not only the right to rent or an apartment, home a private housing, public or right but live the to the to determine it; in right arrangements, their living conduct the of their lives; the right to select their raise their mates, families, and receive due the safe protection in exercise and of secure these rights. the of Some Englishmen their whose houses were suppose, one castles, may were physically disabled. Coke never At aught least said the to contrary. It the not the was ligeantia, which counted. visual acuity, world in which the the But too, have a right disabled, to live also on is streets, the the highways in byways, and public buildings, and other public the places, in colleges, in the schools and public service and private in callings, factories, the and offices, shops short, all the places where in in are, go, live, men and work, play. The policy of the law, whether made by Congress or the courts, whether by out by or carried executive judicial whether action, implemented through the traditional formulas the law of rhetoric of torts, the of integration, policy the of human, natural, or or the rights of inalienable of the Declaration Independence, the Abolitionist Crusade, the thirteenth, fifteenth fourteenth, and the amendments, and civil rights revolution of today-the policy of law should the by nega- be tive and positive ban to permit, and fostering, enable to men encourage part of their communities a be full extent of their physical to the capaci- The ties. law of should link its torts to conception. labors this is no right of substance, It is no policy of integration, it if the disabled are not entitled to this. It is world with fewer appurtenances no access and more narrowly that Without right, defined. that world, it is that policy, no living. APPENDIX MODEL WHITE CANE LAW I-It is the § policy of State to encourage and this the the enable blind, handicapped, and the visually otherwise disabled to physically participate fully in the social and economic life of the State to engage in remunerative and employment. § 2-(a) blind, the visually handicapped, The and otherwise physically the disabled have the same right as the able-bodied to the full and free use the of streets, higways, sidewalks, walkways, public buildings, public facilities, and other places. (b) The blind, public the visually handicapped, and the other-
80 1966] THE AND TORT LAW DISABLED physically disabled entitled to full and equal accommodations, advan- wise are and privileges all common carriers, airplanes, motor vehicles, tages, facilities, of buses, trains, or any other public conveyances railroad streetcars, motor boats of modes or transportation, lodging places, hotels, public of places accommoda- and other places to which the general tion, is invited, amusement or resort, public the and limitations established by conditions and applicable to only subject law persons. (c) Every totally or partially blind person shall alike the to all have be right to guide a dog, by accompanied especially the for trained purpose, in places listed in section 2(b) without being required to pay an extra any of the done guide provided that he shall be liable for any damage dog; charge the for premises or facilities by such dog. the to driver of a vehicle approaching a totally or partially blind pedes- § 3-The who trian is cane predominately a carrying metallic white (with in or color or all using a guide dog shall take or necessary precautions to a red tip) without such blind pedestrian, and any driver who fails to take such pre- avoid injury to liable shall damages for any injury caused such pedestrian; pro- cautions be in such a partially blind pedestrian not carrying or a cane or that vided totally guide dog in using of the places, accommodations or conveyances listed a any section shall have all of the rights and privileges conferred by law upon in 2, blind and of a totally or partially failure pedestrian to carry persons, the other cane or to use a guide dog such any such places, accommodations or con- a in shall be held to constitute nor not evidence of contributory veyances be negligence. 4-Any person or § firm or corporation, or the agent of any person persons, or firm persons, corporation who or interferes or denies to with or admittance enjoyment public of facilities the enumerated otherwise or in section 2 interferes a totally with the rights of otherwise or partially or blind disabled person under be guilty of section misdemeanor. 2 shall a year, Governor shall take suitable public notice of October 15 § 5-Each the proclamation Safety He shall issue a Day. in which: White as Cane comments upon (a) significance of the white cane; he the he upon the citizens (b) calls State of the provisions to the observe of the the to White precautions necessary to Law safety of Cane and take disabled; the reminds the citizens (c) the State of the policies with respect to the he of cooperate giving in and the to citizens urges declared disabled herein effect to them; he emphasizes the (d) of the citizens to- be aware of the presence of need disabled in the community and to keep safe and functional for persons disabled the highways, sidewalks, walkways, public buildings, the streets, other places, places of public accommodation, facilities, public public resort, and other places to which amusement public is invited, and the to assistance to disabled offer upon appropriate occasions. 4nd persons 6--It is the policy of this State that the blind, the visually handicapped, § the shall physically disabled and be employed in the State Service, the otherwise the of subdivisions of the State, in political public schbols, and in service the other employment supported in whole or in part by public funds all the same on the particular that shown is unless able-bodied, the as it and conditions terms work involved. of the the performance prevents disability
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