From: eager@eagercon.com (Michael J. Eager)
Subject: Re: East Bay Regional Parks/dog restrictions
Reply-To: eager@eagercon.com
Organization: Eager Consulting
Date: Sun, 4 Oct 1992 18:15:13 GMT

In article 7684@netcom.com, mzimmers@netcom.com (Michael Zimmers) writes:
>In article <1992Oct2.181324.18587@netcom.com> kudzu@netcom.com (Michael Sierchio) writes:
>
>>If you own a swimming pool, you have certain liabilities, just as you
>>do in owning a motor vehicle -- if a pedestrian steps out in front of
>>your car and you hit him unavoidably, breaking his legs, it's his fault
>>and your liability.
>
>It's statements like this that have me seriously concerned for the 
>future of private property rights in this country.
>
>If you can't see the difference between a vehicle accident on a public
>roadway where operating a vehicle is a PRIVILEGE not a RIGHT (do you
>understand the difference), and a case where someone gets injured by
>dint of trespass upon private property, you're beyond help on this
>topic.


I'll throw in my two cents:

I'm always surprised when I see an absolutist interpretation of rights.
Everybody has rights, property rights, personal rights, other rights.  
Often these rights are in conflict and the history of common law has
been to provide an equitable accommodation to the rights of all parties.

You do not have absolute rights on your own property for many good reasons.
Children are held to a lesser level of responsiblity than adults, and,
while a parent may be responsible for exercising care in keeping a child
from harm, the law recognizes the responsibility of ALL people to protect
children (and other adults) from unreasonable danger.


>Your description of the leg-breaking accountabiity is also misleading.
>If the driver was operating lawfully and the pedestrian jaywalked or
>disobeyed signals, its quite possible the driver will not be penalized
>and the pedestrian will add the price of a ticket to his medical bills.
>I saw an incident at Wolfe and ECR a few years ago where a kid was trying
>to beat traffic across a left turn lane.  A car going no more than 5 MPH
>hit him and stopped instantly, pinning his foot under a tire.  The kid
>frantically waved at the driver to back up, which the driver eventually
>did.  The kid got up and limped across the street where a waiting cop (man
>did they get there fast) wrote him up.


An anecdote does not make precedent, but let's look at this little story 
closer.  Under CA law, a driver must stop for a pedestrian, no matter what
the circumstances.  Even if the pedestrian is jaywalking. 

In your story, the driver did stop, although perhaps a foot too late.  
The officer wrote up a ticket for jaywalking, which seemed reasonable.  
Are you claiming that the fact that the person was jaywalking made the
driver somehow less obligated to avoid hitting him or somehow less obligated
to stop?  What if the car had run over the boy's foot and then continued
on without stopping?  I'd presume that the officer would have attempted to
cite the driver for leaving the scene of an accident or hit-and-run.

You seem to hold it to be very significant that the driver was not cited.
Two points: (1) It may have appeared to the officer that he followed the law 
and his obligation, there may not have been anything to cite him for.  
(2) Police officers have significant latitude in whether to issue a citation
or not; another officer might have cited him for reckless operation or other 
infractions. 

---
Michael J. Eager		Michael.Eager@eagercon.com
Eager Consulting		(415) 325-8077 
1960 Park Boulevard, Palo Alto, CA 94306-1141

Newsgroups: ba.general,misc.kids