The Blind Don't Deserve Courts' Roadblocks

Detroit Free Press

By Richard H. Bernstein, Guest Columnist
December 8, 2003

In the past, Michigan jurisprudence treated disabled persons with fairness. State law took into account the fact that the deaf cannot hear a warning siren, paraplegics cannot step over a barrier, and the blind cannot see danger ahead.

Unfortunately, recent court decisions repudiated this common-sense approach. Drastic changes in the rights of blind victims illustrate this dangerous trend.

At the outset, I should explain my personal perspective. I am a practicing attorney, who advocates for the disadvantaged and disabled. I also am blind. Usually, I would rather be known just for my capabilities and accomplishments.

This article, however, draws from both aspects of my life - as a legal practitioner and a blind individual.

Traditionally, courts did not regard a blind person as negligent for accidentally encountering hazards that a sighted person might avoid. Over a century ago in the case of Harris v. Uebelhoer, a New York state jurist wrote:

Blindness of itself is not negligence, any more than the obscurity of sight by the absence of light.

In other words, all are blind in the dark. When the lights are off, a sighted individual is expected to exercise the same caution as one without vision. Sadly, in Lugo v. Ameritech Corp. Inc., the Michigan Supreme Court recently disregarded the fact that the blind always walk in the dark, by ruling:

It is important for courts deciding (whether to consider cases involving allegedly ‘open and obvious’ hazards) to focus on the objective nature of the condition of the premises at issue, not on the subjective care used by plaintiff.

As a result, courts now throw out claims of injured blind persons, if they miss dangers that might be apparent to a sighted person.

This ruling, which focuses on the condition of the property and ignores the condition of the victim, produces absurd results.

In the 2002 case of Lauff v. Wal-Mart, an elderly blind woman broke her hip when she slipped and fell on wet debris in the designated handicapped rest-room stall of a department store. The judge dismissed her premises liability claim, because Michigan case law prohibited consideration of her inability to see litter on the floor. The court acknowledged its dilemma, by stating:

Unfortunately, plaintiff was unable to see this condition because of her blindness, but this condition would have been open and obvious to an ordinarily prudent person.

In other words, if you are blind or have other physical limitations, you leave your house at your own risk. If a store, restaurant or office building fails to promptly remove a hazard, it is your fault if you get hurt.

This approach contradicts the current statute, the Michigan Persons With Disabilities Civil Rights Act, which supposedly assures the rights of the disabled to fully participate in society.

It also raises troubling questions.

• Does a motorist have to yield to a blind person who inadvertently strays outside a crosswalk?
• Does a construction company have to put barricades around its work site?
• Will irresponsible persons see recent court decisions as an opportunity to ignore hazards they create?
• Will this ultimately increase the risk of danger for the disabled -- and anyone else with physical limitations -- as they go about daily activities in the real world?

Surely, the Michigan Supreme Court did not intend its decision to have such draconian consequences. It should immediately revisit this ruling, to restore fair consideration of the individual capability of each injured victim.