TABLE 2 SPEED ADJUSTMENT FACTORS RECOMMENDED BY HIGHWAY CAPACITY MANUAL Note

IIN OUR INCREASINGLY LITIGIOUS SOCIETY, it seems to be increasingly the case that, in the event of an incident, the argument is made in a court of law that noncompliance with laws, rules or regulations is prima facie evidence that the actions of the individual leading up to the event were inherently unsafe. It is not infrequently argued that such noncompliance rises to the level of negligence and, thus, warrants an increased level of penalty or punishment for such noncompliance. To understand when such arguments may or may not be valid, it is necessary to first understand the meanings of the terms safety and negligence as they relate to individual behavior, as well as to have a perspective on whether the rules represent a true consensus on the part of the population about whether those rules are either appropriate or valid. The National Safety Council’s (NSC, 2015) Accident Prevention Manual defines the word safe to mean “a condition of relative freedom from danger. ” The same source defines safety as “The control of recognized hazards to attain an acceptable [emphasis added] level of risk. ” ANSI B11.0-2020 defines the term acceptable risk as “a risk level achieved after risk reduction measures have been applied. It is a risk level that is accepted for a given task (hazardous situation) or hazard” (p. 18). It is clear from both definitions that the degree of risk that is considered safe is based on the acceptability of the risk involved, not that a product, task or activity is risk free. Safety is thus a relative, not an absolute, concept. In short, safety involves a risk level that the affected population generally considers to be acceptable for any given task or situation at the point in time that it occurs. If that population considers an action or behavior acceptably safe before an incident or event, one cannot in light of hindsight categorize that same action as having been unsafe simply because the outcome was not anticipated or desired or because the action did not comply with published guidance. To use an example, prior to the late 1960s, federal law did not require seat belts in cars; vehicles were considered acceptably safe without them. This does not mean that seat belts would not have reduced the likelihood of injury or death for vehicle occupants involved in crashes had the devices been installed in earlier model-year vehicles, but rather that the bulk of the driving public (and the federal government) at that time did not consider the lack of seat belts to represent an unreasonable risk. Seat belts had been available as an option or aftermarket item for many years prior to them becoming mandatory (they were first patented in the U.S. in 1885), but the driving public did not routinely choose to add seat belts to their vehicles (i.e., the risk of driving without them was acceptable to them). Driving without them was considered safe (although not without risk). As Curry et al. (2018) note: Webster’s New World Dictionary defines negligence as “failure to use a reasonable amount of care when such failure results in injury or damage to another. ” Black’s Law Dictionary similarly defines it as “failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. ” The latter source also states that a reasonable person is one who “acts sensibly, does things without serious delay and takes proper but not excessive precautions. ” Heuston (1977) says: The reasonable man connotes a person whose notions and standards of behavior and responsibility correspond with those generally obtained among ordinary people in our society at the present time, who seldom allows his emotions to overbear his reason and whose habits are moderate and whose disposition is equable. He is not necessarily the same as the average man—a term which implies an amalgamation of counter-balancing extremes. The sum total of these statements is that an assertion of negligence must be based on the normal behavior of the members of the subject population. If such is the case, then declaring normal behavior to be somehow negligent is inherently unsupportable. Safety rules or laws, on the other hand, imply that a particular behavior is either inherently safe or unsafe on the basis of compliance with a predetermined value set by the rule-maker. A simple example of this would be a 70-mph speed limit on a particular section of freeway. Noncompliance with the speed limit set by lawmakers potentially subjects the individual to a penalty. Such noncompliance may or may not, however, have anything to do with the inherent safety of the activity involved. While it is true that there is commensurately less kinetic energy in a body moving at 70 mph than one moving at 71 mph, the difference is so slight as to be almost negligible. Is 70 mph on the subject roadway somehow inherently safe, while 71 mph is unsafe? This question is particularly vexing given that prevailing traffic may be moving at a considerably higher speed than either value. KEY TAKEAWAYS •Safety is a function of the level of risk that the population as a whole is willing to accept for a particular activity, not of the adherence to a particular standard or of the elimination of all risk. •Negligent action or behavior must be evaluated in light of the normal behavior of the subject population. •Driving normally cannot be negligent, but doing so does not absolve a driver of consequences that may result from noncompliance with applicable rules. WHAT IS NORMAL DRIVING?