If you travel, you have probably noticed that some places are safer than others. I’m not talking about walking through a bad neighborhood at night with jewelry on. I’m talking about the difference between walking down the street in one city versus walking down the street in a city in a different state. My mother and I recently went to New York City to celebrate her birthday. We stayed in a nice hotel in a nice part of Manhattan, but we both noticed that walking down the street was like an obstacle course. There was scaffolding overhead, ladders leaned against the sides of buildings, large protruding cracks in the sidewalks, open pits leading to areas under the sidewalks, and open holes. My mother asked, “Why are the sidewalks so hazardous for pedestrians?” A friend visiting Seattle from Ohio actually took a picture of utility workers in a manhole downtown because he found the plethora of signs, warning tape, and cones humorous. He said, “It sure wouldn’t look like that back home.” A few years ago, I visited the Butchart Gardens in Victoria, British Columbia, Canada during the nighttime Christmas lights spectacular. I was surprised to see that the paths were not well lit, flashlights weren’t available, and the pathways were not well marked. I thought, “Someone is going to get hurt here.” You have probably noticed similar examples in your travels.
So, why are things so different from one state to another or from one country to another? Why are some places less safe than others? And who is at fault for the differences? The answer might surprise you. Quite simply, you are at fault. “Me?” “But I had nothing to do with this!” Maybe, but if you live in one of the places that are less safe and you ever sat on a jury or voted in a legislative or gubernatorial election, you have had a role is determining how safe your state is.
Public places and commercial spaces are only as safe as the public requires. The standards for safety are set by legislators and juries. For example, municipalities establish building codes and regulations that determine things such as the width of sidewalks, whether hand rails are required on stairs, and the minimum height for railings on decks. States pass laws about background checks for daycare workers and teachers. In those cases, our elected officials are creating and revising laws based on what they believe the public wants – and demands – to keep citizens safe. In order to have sufficient safety laws in place, it is important for voters to know the position of various candidates on safety issues – and to know their voting track record on safety. Do they favor laws that will keep us and our families safe, or do they favor laws that create tax loopholes for businesses and exemptions that permit businesses or certain landowners to avoid the consequences of not being safe?
Sometimes, such as in the care and maintenance of private or commercial property, the law simply states that the property owner “must use ordinary care” to maintain their property “in a reasonably safe condition.” In that case, a jury is often called upon to determine what was “reasonable” in that situation. If a jury finds that the property owner didn’t meet its duty, then a message is sent that the community demands that things are safer which, in turn, lets all property owners know what is expected from them to keep their property safe. By contrast, if a jury decides that the property owner isn’t responsible for an injury that occurred on their property, a message is sent that this community isn’t as concerned about safety and that the bar can be set lower.
When thinking about public safety, it is important to keep in mind that there are two “balancing tests” at play. First, who should be more responsible for safety, the person who owns the property, is familiar with it, and has the ability to make changes to it to enhance safety, or the person who encounters it, often with little notice or information about it? Second, if someone is injured, who should pay the financial cost for that injury, the person who owned the property and had the ability to make it safer or the private health insurer for the person who was injured or even the taxpayers (due to payments made by Medicare, Medicaid, or public assistance)?
Ultimately, we get the safety we demand. If we, as a society, demand less, we will get less. Sometimes, this means that our rights are eliminated so that we don’t even have an opportunity to ask a jury to decide whether they believe something was safe enough. For example, in Ohio, if a danger is open and is obvious (by an objective standard), no matter how unsafe it may be, there is no right to sue the property owner. That’s right, if there is a 10 inch drop off in the middle of the floor in a department store, too bad for you if you don’t see it. Other states have similar laws and, in those places, property is much less safe, more people are injured, and the financial burden is borne by the person who was injured, their private health insurance, or the taxpayers.
The next time you travel, notice your surroundings. Are they more or less safe than the city or state where you live? And what does that tell you about the legislators and juries in those places?