the right to live in the world: the disabled in the law of torts

7/29/2019 The Right to Live in the World: The Disabled in the Law of Torts

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California Law Review, Inc.

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The Rightto Livein the World:The Disabled n the Law of TortstJacobus tenBroek*

M OVEMENT,WE ARE TOLD,is a law of animal life. As to man, in anyevent, nothing could be more essential to personality, social exis-tence, economic opportunity-in short, to individual well-being andintegration into the life of the community-than the physical capacity,the public approval,and the legal right to be abroadin the land.Almost by definition,physical disability in many of its forms entailsdifficultiesin getting about, and this is so quite regardless of the partic-ular surroundings.Such is the case of the cripple, the paraplegic, andthe legless. The word "halt" itself is a description of disability in termsof limitation on mobility. Some difficulties in getting about arise out ofthe conditions of the modern world in combination with the particulardisability, as in the case of the deaf person in traffic.However differentfrom what they are widely supposed to be, there are travel problemsinherent in blindness and these are to some extent increased, to someextent diminished, by the structures and conditions of modem urban

t Author'sNote: If the blindappear n thesepagesmore than other disabled, t may bebecausethe author is blind and has a specialinterestin his kind. He thinks not, however.The fact is that the blindindividuallyand collectivelyare a very activegroupof the disabled,if not the most active. If the National Federationof the Blind appears n these pagesmoreoften than other organizationsand agenciescomposedof the blind or dealing with theirproblems, t may be because the author founded that organization n 1940, served as itspresident or 21 years, and is still an active leaderin it. He thinks not, however.The Na-tional Federation of the Blind is an aggressive,militant, activist organizationof the blindthemselveswhichin a quarterof a centuryhas achieveda greatdeal,legislativelyand other-wise,and hasalwaysbeen in the thickof the fight. If the BrailleMonitoris citedmore oftenthan othermagazines,t may be becausethe author is editor of that journal.He thinksnot,however.That journalspecializesn informationand coveragewhichhave a specialrelevanceto the issueshere discussed.This article s amplyfleckedwith footnotes, citinga wide rangeof formalmaterials.Theviews expressed, he author believes, are verifiedby his personalexperienceas a disabledindividualfar more than by all the footnote referencesput together.The author wishes to acknowledgehis indebtedness o the following personsfor theirservicesas researchassistants:Fay Stender,RobertPlatt, GaryShelton,WarrenDeras,BarryMcGough,Ken Cloke and CharlesMiller; and to the Institute of Social Sciencesof theUniversityof California,Berkeleyand the NationalFederationof the Blind for makingtheseservicesavailable.*A.B. 1934, M.A. 1935, LL.B. 1938, J.S.D. 1940, University of California,Berkeley;S.J.D. 1947,HarvardUniversity;D.Lit. 1956,FindleyCollege;LL.D., 1964,ParsonsCollege.Member 1950-63,Chairman1960-63, CaliforniaState Socal Welfare Board. Professor ofPoliticalScience, Universityof California.

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CALIFORNIA LAW REVIEWlife and activities. In its 1962 survey of the characteristics f thosereceiving ederal-state id to the permanently nd totally disabled, heDepartment f Health,Educationand Welfareconcluded hat twenty-nine per cent are confined o the homebecauseof physicalor mentalconditions, conclusion pparently ased on the responses f the recip-ients themselves atherthan on medicalevidenceof physicalcapacity.1Of the roughly85,000aid-to-the-blindecipients,presumablyhe leastactive segmentof the blindpopulation,only 15.9 per cent are so con-fined.2

The actual physicallimitationsresultingfrom the disabilitymoreoftenthannot play little role in determiningwhether he physicallydis-abledare allowedto move aboutand be in public places.Rather,thatjudgmentfor the most part results from a variety of considerationsrelatedto public attitudes,attitudes which not infrequentlyare quiteerroneousand misconceived.These include public imaginingsaboutwhat the inherentphysical imitationsmustbe; publicsolicitudeaboutthe safety to be achievedby keepingthe disabledout of harm'sway;public feelingsof protectivecare and custodialsecurity;publicdoubtsaboutwhy the disabledshouldwant to be abroadanyway;and publicaversionto the sight of them and the conspicuous eminderof theirplight.For ourpurposes, here is no reasonto judgethese attitudesasto whether hey do creditor discredit o the humanhead andheart.Ourconcern s with theirexistenceand theirconsequences.To whatextentdo the legal right,thepublicapproval, ndthe physi-cal capacitycoincide?Does the law assurethe physicallydisabled, othe degreethat they are physicallyable to take advantageof it, theright to leave their institutions,asylums,and the housesof their rela-tives? Oncethey emerge,must they remainon the front porch,or dotheyhavetherightto be in publicplaces,to go about n the streets,side-walks, roadsand highways,to ride upon trains, buses, airplanes,andtaxi cabs,and to enterand to receivegoodsand services n hotels,res-taurants,and otherplacesof publicaccommodation?f so, underwhatconditions?What are the standardsof care and conduct,of risk andliability, o which heyare heldandto whichothersareheld withrespectto them?Are the standards he same for them as for the able-bodied?Are therelegalas well as physicaladaptations;andto what extentandin whatwaysare these tied to conceptsof custodialism r integrationism?

1U.S. Dep't of Health, Educ. & WelfareState Letter No. 747, Table 27, July 2, 1964.2 U.S. Dep't of Health,Educ. &Welfare,State Letter No. 746, Table 32, July 2, 1964.Roughly40% travel with family members, riends,or paid guides; 13.3%with canes; 1%with dogs; 22.7%travel aloneand without a cane.Ibid.

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THE DISABLED AND TORT LAW

THE POLICY OF INTEGRATIONISMA. Integrationism the AnswerIt is the thesis of this paper that the answers to these questions to bereturned by the courts, other agencies of government, and other publicand private bodies should be controlled by a policy of integrationism-that is, a policy entitling the disabled to full participation in the life ofthe community and encouragingand enabling them to do so-that thispolicy is now, and for some time has been, the policy of the nation,declared as such by the legislatures of the states and by the Congressof the United States; and that the courts and others are thus bound touse that policy at least as guide, if not as mandate, in reaching theirdecisions, whatever may be their views as to its desirability or feasibility.The policy of integrationism is implicitly and explicitly adopted bythe nation and by all of the states in the set of laws, agencies andactivities known as the Rehabilitation Program. Commencedin severalof the states as long ago as 1918 and 1919,3and given national support

by Congressin 1920,4that programhas been enlargedin conception andincreased in funding by successive legislative amendments,5by the im-pact of World War II, by pressures from organized groups of the dis-abled, and by a growing sense of its importance and potentialities.At the head of the 1965 Rehabilitation Act Amendments stands thisdeclaration: "The Secretary is authorized to make grants as providedin . . . this title for the purpose of assisting States in rehabilitatinghandicapped individuals so that they may prepare for and engage ingainful employment to the extent of their capabilities, thereby increas-ing not only their social and economicwell-beingbut also the productivecapacity of the Nation."6 Specifically, the federal grants are to be madeto these states to aid them in meeting the costs of rehabilitationservices,7making innovations in those services,8 expanding them by planning andinitiating special services,9 developing a comprehensive rehabilitation

3E.g. Gen. Acts of Mass. 1918, ch. 231, at 201-02; Cal. Stats. 1919, ch. 183, at 273-74;Laws of Ill. 1919, S.B. No. 449, at 534-37; Laws of Minn. 1919, ch. 365, at 389-90; New Stat.1919, ch. 182, at 329; Laws of N.J. 1919, ch. 74, at 138-44. For a general history of voca-tional rehabilitation, see OBERMANN, HISTORYOFVOCATIONALEHABILITATIONN AMERICA(1965).441 Stat. 735.557 Stat. 374 (1943), 68 Stat. 652 (1954), 79 Stat. 1282 (1965).6 79 Stat. 1282, 29 U.S.C. ? 31 (Supp. I, 1965).7 79 Stat. 1282, 1283, 29 U.S.C. ?? 31-33 (Supp. I, 1965).8 Ibid.9 79 Stat. 1282, 1289, 29 U.S.C. ? 34(a) (Supp. I, 1965).

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CALIFORNIA LAW REVIEWplan in each of the states,?1and for rehabilitationresearch," demonstra-tion,l2 and training projects.l3 The federal Vocational RehabilitationAdministration is authorized to conduct research and gather and dis-seminate information with respect to the abilities, aptitudes and capac-ities of handicappedindividuals, developmentof their potentialities, andtheir utilization in gainful and suitable employment.l4 The 1965 Amend-ments also increase the appropriationfor the earlier-createdPresident'sCommittee on National Employ the Physically HandicappedWeekl5 tocarry out the function indicated by its title, to stimulate similar com-mittees in the states, and to sponsorthe annual event known as "Employthe Handicapped Week."'6The purpose of the 1965 Amendments,saidthe House Committee on Education and Labor,17is "to provide thephysically and mentally disabled persons of this Nation an improvedand expanded program of services which will result in greater oppor-tunities for them to more fully enter into the life of our country asactive participating citizens."'8According to the 1964 annual report of the federal Vocational Re-habilitation Administration,in that year 119,000 disabled persons wererehabilitated through this program into productive activity and em-ployment at an expenditureby states and nation of $133,000,000; 795research and demonstration projects were conducted at a cost to thegovernment of $15,179,000; and 447 teaching programs and 3,259traineeships and research fellowships were granted at a cost of $16,-528,000.19 Of the rehabilitated persons, over seventy per cent wereunemployedwhen they entered the rehabilitationprocess,and most of theremainder had low earnings; about 16,000 were recipients of publicassistance, and about 5,200 resided in tax-supportedinstitutions.20Withrehabilitationfunds, scores of communitiesand organizationshave beenaided in the constructionof comprehensiverehabilitationcenters, specialcenters for specific disabilities, and clinics in connectionwith hospitals-all devoted to reducingand preventingdependencyand thereby further-ing the policy of integrationism.21

10Ibid.11 79 Stat. 1282, 1291, 29 U.S.C. ? 37(a) (Supp. I, 1965).12Ibid.13Ibid.14Ibid15 Joint Resolution, 63 Stat. 409 (1949).16 79 Stat. 1282, 1294, 29 U.S.C. ? 38 (Supp. I, 1965).17H.R. REP.No. 432, 89 Cong.,1st Sess. (1965).18Id. at 2.19 1964 U.S. DEP'TOFHEALTH,EDUC.&WELFARENN.REP. 327-29.20Id. at 329.21Id. at 330, 331.

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THE DISABLED AND TORT LAWAll of the states receive grants-in-aid from the federal governmentunder the vocational rehabilitation acts and necessarily commit them-selves to the implicit and explicit policy of those acts of maximum inte-grationismfor the disabled. In California, for example, an act coordinateto the national act has been in existence since 1919.22It currently vestsstate officials"with all necessary powers and authority to cooperate withthe government of the United States"' and declares: "It is the publicpolicy of the State of California to assist and encourage handicappedindividuals to attain their maximum usefulness and self-sufficiency inorder that they may make their full contribution to society."24Otherstate services and institutions such as the home-teacher-counselorser-vice25and the OrientationCenter for the Blind26espouse this policy withequal emphasis.With this very same objective in mind, the public assistance titles ofthe Social Security Act have been amended: (1) to declare self-supportone of the purposes of that act with respect to the blind and the per-manently and totally disabled;27(2) to encourage the provision of ser-vices to help recipients attain or retain capability for self-support orself-care or likely to prevent or reduce dependency;28(3) to permit theblind and disabled to retain, without consequence to their aid eligibilityor grant, other income and resourcesnecessary to fulfill a plan for self-support;29(4) to exempt various amounts of earned income from con-sideration in determining the amount of the blind and disabled aidgrants;30and, (5) to require that the states provide an incentive foremploymentgiving considerationto any expenses reasonablyattributableto the earning of income.31All of these amendments were designed toadd new dimensionsto the rehabilitative aspects of the public assistanceprograms.82From its beginning in 1954, the disability insuranceprogramhas contained a declaration that it is "the policy of the Congress that22 Cal. Stats. 1919, ch. 183, CAL.E}UC. CODE, h. 10.5.23 CAL.EDUC. CODE? 6977.24 CAL.EDUC.CODE? 6971.25 CAL.EDUC.CODE? 6209.26 CAL. EDUC.CODE? 6201-08.27 70 Stat. 807, 849 (1956), 42 U.S.C. ? 1201, 1351 (1964).28 76 Stat. 172 (1962), 42 U.S.C. ?? 303, 1201, 1351 (1964).2949 Stat. 645 (1935), as amended, 42 U.S.C. ?? 1201-06 (1964), as amended by 79 Stat.286, 42 U.S.C. ?? 1201-06 (Supp. I, 1965); 64 Stat. 555 (1950), as amended, 42 U.S.C.?? 1351-55 (1964), as amended by 79 Stat. 286, 42 U.S.C. ?? 1202, 1382 (Supp. I, 1965); 76Stat. 197 (1962), 42 U.S.C. ?? 1381-85 (1964).30 79 Stat. 286, 418 (1965), 42 U.S.C. ?? 1201 (blind), 1351 (disabled) (Supp. I, 1965).3153 Stat. 1397 (1939), as amended, 42 U.S.C. ? 1202 (Supp. I, 1965); 76 Stat. 172,199 (1962), 42 U.S.C. ? 1382 (1964).32 S. RE?. No. 1589, 87th Cong., 2d Sess. 2, 3, 17-18, 21 (1962); S. REP. No. 1856, 86thCong., 2d Sess. 52 (1960); S. REP. No. 2133, 84th Cong., 2d Sess. 29 (1956).

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CALIFORNIA LAW REVIEWdisabled individuals applying for a determination of disability, anddisabled individuals who are entitled to child's insurance benefits, shallbe promptly referred"to the state rehabilitationagency, "for necessaryvocational rehabilitationservices, to the end that the maximumnumberof such individuals may be rehabilitated into productive activity."33Rehabilitation reaches its point of culmination in remunerative em-ployment and self-support throughjobs in the commoncallings, industry,agriculture, independent businesses, and the professions. This congres-sional policy is implemented primarily through the obligation of re-habilitation counselors and other officials to assist disabled persons infinding such employment. Persuasion and demonstration are the ac-cepted techniques. In some areas, however, there are and have beenlegal barriers to the employment of the disabled; elsewhere, privateresistance has not yielded to persuasion and demonstration. Here thepublic commitment to the policy of integrationism has required legis-lative or judicial action. Legislative action has often been forthcoming,judicial action seldom. Congresshas forbidden discriminationagainst thehandicappedin the federal civil service.34A number of states, beginningwith California in 1939,35have laid down a similar ban.36In additionsome states have enacted special statutes prohibitingsuch discriminationwith respect to teaching in the public schools,87social work,38physicaltherapy,39and the practice of chiropractic.40Four other extensive legislative programs-the so-called architecturalbarriersstatutes, the programsfor the educationof disabled children andyouth in the regular public schools and colleges, the guide dog laws, andthe white cane laws-are built upon an integrationist foundation andnecessarily imply an integrationist objective. The architectural barriersstatutes provide that public buildings and facilities hereafter constructedor remodeledshall be made "accessibleto and functional for" the physi-cally handicapped,41presupposingthat the physically handicapped willmake their way to such buildings and facilities and have occasion to bein them. The programs for the education of disabled students in the

33 68 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, ? 1 now contained in CAL.GOV'TCODE? 19701.36 IDAHOCODEANN. ? 59-1025 (Supp. 1965); Mo. STAT.ANN. ? 36.180 (Supp. 1965);WIS. STAT.ANN. ?? 63.32, 63.33 (Supp. 1965); N.Y. Civ. SERv.LAW? 55 (Supp. 1965).37 CAL. EDUC. CODE ? 13125; MASS. GEN. LAWSANN., ch. 71, ? 38G (Supp. 1965);N.Y. EDUC.LAW? 3004; 24 PA. STAT.ANN. ? 12-1209 (1959).38 CAL.BUS. & PROF.CODE? 9030.39 CAL.BUS. & PROF.CODE? 2631.40 CAL.Bus. & PROF.CODE ? 1000-8.1.41 For a review of these statutes see text accompanying notes 102-31 infra.

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THE DISABLED AND TORT LAWpublic schools are supportedby legislation opening the public schools tothe blind and deaf, providing special tools, equipment, books, and sup-plementary teaching services, appropriating funds to enable blind stu-dents to hire sighted readers,and exemptingscholarshipsfrom considera-tion in determining the amount of the blind aid grant.42 Guide doglegislation strikes down restrictions on the use of the dog by the blind,and sometimes by other incapacitated persons, on common carriers, inpublic places and buildings, and in places of public accommodation.43The white cane laws are intended to make it safer for blind persons whotravel with the aid of this device.44Congress in a Joint Resolution,45and the President in two Proclamations46setting aside a White CaneSafety Day, have emphasized that the cane is not only a useful travelaid but also a symbol of the independenceand the social and economicintegration of the blind.From the foregoing, it is abundantly clear that integration of thedisabled is the policy of the nation. This policy has been expressed byCongressand by the state legislatures,not once, but many times, and notmerely with respect to a single, narrowarea of human endeavor,but withrespect to the whole broad range of social, economic, and educationalactivity backed up with numerousspecially created agencies and instru-mentalities of government, with affirmative assistance and negativeprohibitions,and with vast expendituresof money amountingto hundredsof millions of dollars each year.The basic question to which we seek an answer is this: How has thislegislative policy of integrationism fared in the courts, and particularlyin the law of torts? Has the law of torts been redirected and remoldedaccording to the prescriptions of the policy? What redirecting and re-molding do these prescriptions require?

B. Implications of Integrationismfor the Law of TortsAccording to the policy of integrationism,the disabled are not to beconfined to their houses, asylums, and institutions-threatened, if theyemerge,with not only social sanctions but legal sanctions as well, in theform 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 to mouldering in health and idleness in chair-bound42 See, e.g., CAL.EDUC. CODE?? 6821, 9354, 10651, 18060, 18060.2, 18102, 18103, 18106;CAL.WELFARE INST'NSCODE ? 12800, 18600-870.43 For a review of these statutes see text accompanying notes 69-102 infra.44 For a review of these statutes see text accompanying notes 360-411 infra.45 78 Stat. 1003 (1964).46 29 Fed. Reg. 14051 (1964); 30 Fed. Reg. 12931 (1965).

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CALIFORNIA LAW REVIEWblindness. Mistaken public and family attitudes and the dependent lawmay not so confine them. Such confinementwould in effect be a formof house arrest, which in the houses of the poor may not be noticeablydifferent from outright imprisonment. Personal liberty, in this basicsense of the right not to be unjustly or causelessly confined, has beentaken as a fundamental,natural,and social right in Chapter39 of MagnaChartaand the due process clauses of federal and state constitutions. Ifthe disabledhave the right to live in the world, they must have the rightto make their way into it and therefore must be entitled to use theindispensablemeans of access, and to use them on terms that will makethe original right effective.A right on such terms to the use of the streets,walks, roads and highways is a rock-bottomminimum.The right to gainaccess to the world in which they have a right to live must also include,as a part of the same rock-bottom minimum, the right to utilize thecommon thoroughfaresby riding on common carriers. Upon descendingfrom these, the disabled have a right of uninhibitedand equal access toplaces of public accommodationto seek their ease, rest, sustenance, orrecreation.47 II

THE RIGHT TO LIFE IN THE WORLD-THE ABLE-BODIED ANDTHE DISABLED

With respect to able-bodiedgroups and individuals, the basic rightsof effective public access have been long established and newly vindi-47Places of public accommodation are defined in some of the state acts in general terms;in others by specific listing. Utah's statute illustrates the former method: "All persons withinthe jurisdiction of this state are free and equal and are entitled to the full and equal accom-

modations, advantages, facilities, privileges, goods and services in all business establishmentsand in all places of public accommodation of every kind whatsoever .. ." UTAH CODEANN.? 13-7-1 to 13-7-4 (Supp. 1965); the ordinance of Rockville, Maryland, Ordinance 43-64,1965, 9 Race Relations Rep. 1895 (1964-65), illustrates the exhaustive list method:Section 13-2.02 ... a. Any inn, hotel, motel or other establishment which provides

lodging to transient or permanent guests;b. Any restaurant, cafeteria, lunchroom, lunch-counter, soda fountain, or otherfacility principally engaged in selling food or beverages, whether alcoholic or not,for consumption on or off the premises, including, but not limited to, any suchfacility located on the premises of any retail establishment, or any gasoline station;c. Any motion picture house, theater, concert hall, meeting hall, sports arena,stadium, recreation park, amusement park, picnic grounds, fair, circus, carnival,skating rink, swimming pool, tennis court, golf course, playground, bowling alley,gymnasium, shooting gallery, billiard or pool room, or any place used for commonor public entertainment, exhibition, sports or recreational activity or other assem-bly; d. Any retail store engaged in selling commodities of any type to the public;e. Any service establishment serving the public, including but not limited to allhospitals, clinics, barber shops, beauty parlors, business or commercial services,repair services, or other services of any type offered to the public.

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THE DISABLED AND TORT LAWcated. They were safeguardedat the common law as to roads and streets,inns, other victualers, ferries, horseshoers,and carriers.48Three quartersof the states of the Union implicitly assume their general applicabilitywhile forbidding the discriminatorydenial of them on the basis of race,creed, color, or ethnic origin.49Through the Civil Rights Act of 1875,50Congress sought to give them national protection. They were generallyacknowledged, and, in part, expressly affirmed, by the United StatesSupreme Court in 1883 at the time the Civil Rights Act of 1875 washeld not to be authorizedby the fourteenth amendment.61n the debatesupon the Civil Rights Act of 1964, these rights were loudly proclaimed.52The Senate Commerce Committee saw the denial of the right of equalaccess as an affront to human dignity,53 he guarantee of the right as the"time honoredmeans to freedom and liberty,"54and public accommoda-tions themselves as existing "for the purpose of enhancingthe individualfreedom and liberty of humanbeings."55The House Judiciary Committeethought the right of equal access to public accommodations "so distinc-tive in nature that its denial constitutes a shocking refutation of a freesociety." "[T]he badge of citizenship . . . demands that establishmentsthat do public business for private profit not discriminate ....."56 Presi-dent Lyndon Johnson in sponsoringenactment of the Civil Rights Act of1964 declared"this is not merely an economicissue-or a social, politicalor internationalissue. It is a moral issue.... All membersof the publicshould have equal access to facilities open to the public."57The United

48 Kisten v. Hildebrand, 48 Ky. (9 B. Mon.) 72 (1849) (dictum); Markham v. Brown,8 N.H. 523 (1837); DeWolf v. Ford, 193 N.Y. 397, 86 N.E. 527 (1908); Hogan v. NashvilleInteruban Ry., 131 Tenn. 244, 174 S.W. 1118 (1915) (dictum); Rex v. Irens, 7 C. & P.213, 173 Eng. Rep. 94 (1835); Boss v. Lytton, 5 C. & P. 407, 24 E.C.L. 628 (K.B. 1832);Lane v. Cotton, 12 Mod. 472 (1701); White's case, 2 Dyer Rep. 158 (1558); De TerminoPascal, Keilway 50, P1. 4 (1450); 3 BLACKSTONE,COMMENTARIS 166; Hale, 1 HARG.LAWTRACTS78 (1787).49 See the list of thirty-two states supplied by Clark, J., in Heart of Atlanta Motel, Inc.v. United States, 379 U.S. 241, 259 (1964). For states not on Justice Clark's list see ARIZ.REV. STAT. ANN. ?? 41-1441, 41-1442 (Supp. 1965); Nev. Stat. 1965, ch. 332; UTAH CODEANN. ? 13-7-1 (Supp. 1965); Mo. ANN. STAT. ? 314.010 (Supp. 1965).5018 Stat. 335. That act forbade discrimination in "inns, public conveyances on land orwater, theaters, or other places of public amusement .. ."51The Civil Rights Cases, 109 U.S. 3, 24-25 (1883).52 See, e.g., 110 CONG.REC. 12876 (1964) (Remarks of Senator Humphrey); id. at 1928(Remarks of Rep. Joelson); id. at 1519-21 (Remarks of Rep. Celler); id. at 1538-40 (Re-marks of Rep. Rodino); id. at 1540-42 (Remarks of Rep. Lindsay); id. at 1601-02 (Remarksof Rep. Mathias).53S. REP. No. 872, 88th Cong., 2d Sess. 18 (1964).54Id. at 22.55Ibid.56 H.R. REP. No. 914, Part 2, 88th Cong., 1st Sess. 7 (1963).57State of the Union Message, 110 CONG.REC. 115 (1964).

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CALIFORNIA LAW REVIEWStatesSupremeCourt, n passinguponthe constitutionalityf thatlegis-lation, joinedin the refrain hat the denialof equalaccess was a socialand moralwrongas well as a burdenon commerce.58heact itself speaksof the entitlement f "allpersons .. to the full andequalenjoyment fthegoods,services, acilities,privileges, dvantages, nd accommodationsof any placeof publicaccommodation."59So the rightsat stakearenot merelyprocedural;nor are they com-parative.Theyare substantive ndbelong o allmen.Evocative eferenceto these,rather han a trulycomparativeonception,ies at the heartofthe movementand legislation o gain access to publicaccommodations.The language s that of the equal protectionclause of the fourteenthamendmentndof the CivilRightsActof 1866.60 he vision,ardor,andsimpleprinciplesare those of the Abolitionists.61he rhetoric s repletewith moralreform,socialjustice,andnaturalrights.The sentencesendwith a prohibitionagainstdiscrimination ased on race, creed, color,ancestry,or nationalorigin.But theybeginwiththe declarationhat"allpersonsare entitled o the full andequalenjoyment... of privileges ..and accommodations."62he legislationin Arizona drives the pointhome.63An exception o the ban on discriminationasedon the listedgrounds, newould uppose,wouldpermitdiscriminationnthosegroundsfor particular urposesandpresumablywithinnarrow imits. Not so inArizona.Assuming hat a basicrightof accessis being guaranteed,hestatute n thatstateprovideshat certainpersonsundercertainconditionsmaybe excluded.The excludedpersonsand conditionsare unrelated othe forbidden roundsof discrimination. he personsare those who areof "lewdor immoral haracter,"uiltyof boisterous onductor physicalviolence,under he influenceof alcoholor narcotics,or whoviolatenon-discriminatoryegulationsof the place.64And not a blind man or acripple s among hem.Howevermuchmingledwith talk aboutburdenon commerce, ow-ever much buttressedwith commonlaw precedentsand foundedinhistory,howevermuchexplicitlydesigned o strikedowndiscriminationsbased on race, color, religion,nationaloriginand sex, howevermucha productof the modern-dayivil rightsrevolution, imedprincipally t

58Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 257 (1964).59 78 Stat. 241, 243, 42 U.S.C. ? 2000(a) (1964).60 14 Stat. 27.61 See TENBREK, EQUALUNDERLAW (1965); Graham, The Early Anti-Slavery Back-grounds of the Fourteenth Amendment, 1950 Wis. L. REV.479, 610.62E.g., Civil Rights Act of 1964, 78 Stat. 241, 243, 42 U.S.C. ? 2000(a) (1964); Nev.Stat. 1965, ch. 332, ? 4; UTAH CODEANN. ?? 13-7-1 to 13-7-3 (Supp. 1965).63ARIZ.REV.STAT.ANN., ch. 27 (Supp. 1965).64Ariz. REV.STAT.ANN. ? 41-1442(C) (Supp. 1965).

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THE DISABLED AND TORTLAWsecuringequal rightsfor coloredpersons,the statutes of the states intheirpresent form,the Civil RightsAct of 1964, the congressional e-bates and proceedingsupon it, and the judicialopinionsvalidating tsconstitutionality-all,implicitlyand explicitly,necessarilyand unavoid-ably, are built upon a recognitionof the absoluteimportance o thenation,communityand individual,of personshaving,holding,and en-joying rightsof accessto the community nd to the public,quasi-public,andprivate nstrumentalitiesecessary o makethoserightseffective.Are humans o be deniedhumanrights?Arepersonsafter all not tobe persons f they are physicallydisabled?Are membersof the com-munity o be robbedof theirrightsto live in the community,heircertif-icates cancelledupon developmentor discoveryof disability?Theserhetoricalquestions,the hallmarksof crusade and reformthroughoutAmerican istory,have in ourgeneration ecome hepleaof the disabledas well. As with the black man,so with the blind.As with the PuertoRican,so with the post-polio.As with the Indian,so with the indigentdisabled.

Without legal redressin many areas, and with the frequencyofarbitraryaction,disabledpersonshave been turnedaway from trains,buses,and other commoncarriers, romlodgingsof varioussorts, fromthe rental of public and private housing,from bars, restaurantsandplacesof publicamusement, rom banks to rent a safety depositbox,fromother kindsof banks to give a pint of blood,and fromgamblingcasinos n Nevada,65 eclaredby statuteas well as by common xperienceto be placesin whichthe publicis accommodated.66In his widelyused,much-quoted nd, I think,justly celebrated exton the Lawof Torts,DeanProsserannounces remarkable roposition:"Themanwho is blind,or deaf, or lame,or is otherwisephysicallydis-abled,is entitledto live in the world... .7 Takenat its most literallevel,surelythisproposition roclaims platitude.Obviously,we do notkill off our disabled,as the Greeks and Romans did their deformedbabies.There is no campaignafoot in the land to extend euthanasiaproposals romthe incurably ll and the sufferersof unbearable ain tothe halt, the lame,andthe blind.

65Nev. Stat. 1965, ch. 332, ? 1.66 tenBroek, Cross of Blindness, 23 VITALSPEECHES32 (1957).67 PROSSER,TORTS 32, at 155 (3d ed. 1964). Among the "otherwise physically disabled,"Dean Prosser lists: bone condition, Wray v. Fairfield Amusement Co., 126 Conn. 221, 10 A.2d600 (1940); crippled, lacking coordination on crutches, Goodman v. Norwalk Jewish Center,Inc., 145 Conn. 146, 139 A.2d 812 (1958); short stature, Mahan v. State, Use of Carr, 172Md. 373, 191 Atl. 575 (1937); lame, Bianchetti v. Luce, 222 Mo. App. 282, 2 S.W.2d 129(1927); club foot, Texas & N.O.R.R. v. Bean, 55 Tex. Civ. App. 341, 119 S.W. 328 (1909).

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CALIFORNIA LAW REVIEWRead less literally, the right to live in the world is something morethan the right to remain in it. Now Dean Prosser's propositionassumessomething of the significance of one of Jefferson'sself-evident truths-

the inalienableright to life. In fact, Dean Prosser updatesThomas Jeffer-son: He moves from a noun to a verb-from the right to life to the rightto live-and specifies, somewhat redundantly, that this shall be in theworld. In the vernacular of the day, Dean Prosser is talking about theright "to live a little."Taken in its broader sense, Dean Prosser's proposition is amplycapable of accommodating the most enlightened social policy for thephysically disabled in the law of torts and elsewhere. Properly under-stood, that proposition might be taken as a definitive statement of thegoals, as a comprehensiveformulation of the policy of integrationism.Dean Prosser's grand pronouncement,however, while purportingtobe drawn from the case law, and while seeming to express for the law oftorts the legislatively established policy of the integration of the dis-abled, is in no sense an accuratesummaryof the law of torts as that lawstands today. The judges either qualify or ignore Dean Prosser's pro-nouncement and the integrationistpolicy. In some areas, the pronounce-ment and the policy are completely rejected; in others, they are givenonly halting and partial credence; and in none are they fully and posi-tively implemented by the courts. Dean Prosser himself immediatelyemasculates his proposition.68He applies it only to a narrow realm ofstreet accidents. And even there, while freeing the disabled of negligenceper se for being where they are, he hobbles them with the views of theable-bodied as to what their reasonable conduct should be. In theseareas, the sum total of the law's beneficence to the disabled seeking afull-fledged right to live in the world can be easily and briefly sum-marized: The courts, proddingthe tardy genius of the commonlaw, haveextended a variant of the reasonable man concept to those who injurethe disabled on the streets, in traffic, and on common carriers. Thisconstitutes a meager and inadequate accomplishment n the light of theintegrationistpurposeand the legislative declaration of policy. Unaware-ness of the policy and its applicability in various situations, rather thanconsideredjudgment, as to its social importance,practicability, or rele-vance in the law of torts, seems to be the principal reason for the wide-spread disregardof the policy.

A. The Rights of Dogs and the Rights of MenThe disabledare neitherspecificallyincludednor specificallyexcludedfrom the general public accommodations legislation. That legislation68 PROSSER,p. cit. supra note 67.

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THE DISABLED AND TORT LAWwas extended at the time of passage to go beyond forbiddingdiscrimina-tion on a basis of race, color, and national origin, to cover discriminationbased on religion69and, in employment, on sex.70 During its passagethrough Congress, Congressman Dowdy offered an amendment to addage to the proscribedbases of discrimination.71The amendment was de-feated by a vote of 123 to 94 after some members of the House hadstated that they agreed with the substance and content of the motion,but thought the procedures set out in the act were not suited to theobject sought.72The final act did, however, require that the Secretary ofLabor make a "full and complete study of the factors which might tendto result in discrimination in employment because of age and of theconsequences of such discrimination on the economy and individualsaffected."73A proposalby the National Federation of the Blind to extendthe protection of the act to the disabled did not reach the stage of formalintroduction.The Civil Rights Act of 1964 does extend to "all persons"and does imply substantive rights. It is therefore possible, if not prob-able, that when we move away from the moment and the immediatecause of the legislation, the judges will bring the disabled within itsshelter.

While state and national general public accommodations legislationhas not expressly covered the disabled, that legislation has served as themodel and source of specific public accommodationslegislation for theblind in twenty-five states.74This has come about in a strange way. Theblind have been led by the guide dogs not only into places of publicaccommodationbut into the right to be there. It is not inaccurate to saythat the basic right of all men to join their communities and to gainaccess to them by the normal means, including the use of public accom-modations,has been gained by the blind in these twenty-five states as an69 Civil Rights Act of 1964, 78 Stat. 241, 243, 42 U.S.C. ? 2000(a) (1964).70 78 Stat. 241, 255, 42 U.S.C. ? 2000(e)-2 (1964).71110 CONG.REC. 2596 (1964).72 110 CONG.REC.2599 (1964).73 78 Stat. 241, 265, 42 U.S.C. ? 2000(e)-14 (1964).74ARx. STAT.?? 78-211 to 78-213 (1957); CAL.PEN. CODE? 643.5; COLO.REV. STAT.ANN. ? 115-12-9 (1953); CONN.GEN. STAT.REV.? 22-346a (1958); FLA.STAT. 413.08 (1963);

GA. CODEANN. ?? 79-601, 79-9901 (1964); HAWAIIREV. LAWS ?? 109-20, 109-21 (1957);IDAHOCODEANN. ? 39-1604 (Supp. 1965); ILL.ANN. STAT.ch. 111 2/3, ? 40a (Smith-Hurd1954); IND.ANN. STAT.?? 16-212, 16-213 (Supp. 1964); IOWACODEANN. ?? 351.30-351.32(Supp. 1964); LA. REV.STAT.ANN. ?? 51, 52 (Supp. 1964); MAINEREV. STAT.ANN ? 54(Supp. 1963); MASS. GEN. ANN. LAWS ? 98A (1956); MICH. STAT.ANN. ? 28.770(7/8)(1954); Mo. ANN. STAT.? 209.140 (1962); N.J. STAT.ANN. ?? 48:3-33, 48:3-34 (1940);N.M. STAT.ANN. ? 47-1-7 (1953); N.Y. PEN. LAW? 518; R.I. GEN. LAWSANN. ?? 39-2-16to 39-2-17 (1956); TENN. CODEANN. ? 62-717 (Supp. 1965); TEx. REV. Civ. STAT. art.4596a, 889a (1948); VA. CODEANN. ? 35-42.1 (Supp. 1964); WASH.REV. CODE?? 49.60.216,81.28.140 (1962); W. VA. CODEANN. ?? 2568(1), 2569 (1961).

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CALIFORNIA LAW REVIEWincident to their reliance on the dogs and the need to have them exemptedfrom restrictionswith regardto pets. Whether the man takes the dog orthe dog takes the man may be a question of some importance.There isquite a differencebetween saying, as California does, for example, that"any blind person"75s entitled to have the dog with him or, no "blindperson . . . shall be denied admittance"though he has a guide dog withhim;76and saying, on the other hand, as New Mexico does, that "noperson shall debar a guide dog . . . in any place of public accommoda-tion . . . provided such dog is safely muzzled and is under the controlof the blind person."77Whatever the relative roles of man and dog, the almost universalbanagainst dogs and other pets in places of public accommodation-a banno doubt based on good reasons of public health, safety and convenience-had to be lifted in favor of the guide dog and its master if its serviceswere to be available to him in getting about.78 Since the exclusionary ruleagainst pets is founded not only in practice and regulation but also inlegislation, remedy had to be sought from the legislatures.79Organiza-tions of the blind, individual guide dog owners, and the managementofguide dog schools set to work, jointly and severally, to secure the stat-utes-which now exist in half the states of the Union-guaranteeing theright of the man to take the dog and the dog to take the man into publicplaces and places of public accommodation.80n a very few statutes, suchas that of Idaho, the right has been effectedby simply making an excep-tion to the prohibition that "no dog, cat or other animal shall bepermitted in any eating place ...."81 In most states, however, reliance

75 CAL. PEN. CODE? 643.5(a).76 CAL.PEN. CODE? 643.5(b).77N.M. STAT. NN. ? 47-1-7 (1954).78For recentexamplesof the exclusionof a blindpersonand guide dog from a restaurantsee GuideDog v. Restaurant,N.Y. Times, Nov. 3, 1964, reprintedn BrailleMonitor, Jan.1965,p. 22; from public housingprojectsee, New OrleansHousingProjectLifts GuideDogBan, BrailleMonitor, Sept. 1965,p. 38.79The only case reportedconcerningthe guide dog statutes arose in Texas in 1945(Boyd v. State, 148 Tex. Crim. 171, 186 S.W.2d 257) where the proprietor of a restaurantdeniedadmission o a blind womanaccompanied y a "seeing-eye"dog becauseof the dog.The proprietorwas convicted of violating the Texas statute which relates primarilytocarriers,but the convictionwas reversedon appeal.The basis of the appellatecourt's actionwas the failureof the legislature o include facilities other than conveyancesn the captionof the act as requiredby articleIII, ? 35 of the Texas Constitution.The court, therefore,held ? 2 of bill unconstitutional, ut foundthe remaining ections severable.80For generaldiscussions f the use of guide dogs by blind persons, he trainingof dogsand masters,and the establishmentof guide dog schools,see CHEVIGNY,Y EYESHAVEACOLDNOSE (1946); EUSTIS,THE SEEINGEYE (1927); HARTWELL,OGSAGAINST ARKNESS(1934); ZAHL,BLINDNESS,h. 24 (1950).81IDAHOODE NN.? 39-1604(Supp. 1965). In 1965 Idaho adopteda guide dog statutebasedon that of California. DAHO ODE NN.? 18-5812-A(Supp. 1965).

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THE DISABLEDAND TORT LAWis placed on the formulationsin anti-race discrimination egislation whichlie ready to guide draftsmanshipand statutory classification and whichsuggest themselves as highly relevant and appropriate in the circum-stances. The Massachusetts legislation follows the model more closelythan many states, but it may be used to illustrate the point.In Massachusetts, a trunk statute was adopted at the close of theCivil War in 1865.82At that time, color and race discrimination in"public places of amusement, public conveyance or public meeting"83was made an offense punishable by fine. The original provision has sincebeen amended a number of times,84most recently and basically in 1950,by adding religion to the list of forbidden grounds of discriminationandby adding two sentences constituting the heart of the moderncivil rightspublic accommodationsformulation: "All persons shall have the right tothe full and equal accommodations,advantages, facilities and privilegesof any place of public accommodation, resort or amusement, subjectonly to the conditions and limitations established by law and applicablealike to all persons. This right is recognized and declared to be a civilright."85Before 1950 three other subsections had been added: one in1941 forbidding race, color or nationality discriminationsin employmenton public works and in dispensingpublic welfare;86the second in 1943,making punishable as group libel publications intended maliciously topromotehatred of any groupbecause of its race or color;87and the third,in 1938, declaring, under penal sanctions, "any blind person accom-panied"by a guide dog, "properlyand safely muzzled,"to be "entitled toany and all accommodations,advantages, facilities and privileges of allpublic conveyances, public amusement and places of . . . public accom-modations . . . to which persons not accompanied by dogs are entitled,subject only to the conditions and limitations applicable to all personsnot accompanied by dogs . ... ,88 Extra fare for the dog is not to becharged on public conveyances.

Again, the formulation employed in Georgia,89 ndiana,90and Loui-siana91 s substantially the same: "Any person who by reason of loss or82Mass. Acts & Resolves 1865, ch. 277, at 650.83Ibid.84Mass. Acts & Resolves 1866, ch. 252, at 242; Mass. Acts & Resolves 1885, ch. 316, at774; Mass. Acts & Resolves 1893, ch. 43, at 1320; Mass. Acts & Resolves 1895, ch. 461, at 519.85MASS. GEN. LAWSANN. ch. 272, ? 98 (1959).86MASS. GEN. LAWSANN. ch. 272, ? 98B (1959).87MASS. GEN. LAWSANN. ch. 272, ? 98C (1959).88MASS. GEN. LAWSANN. ch. 272, ? 98A (1959).89 GA. CODEANN. ? 601 (Supp. 1964).90 IND. ANN. STAT.? 16-212 (Supp. 1964).91LA. REV. STAT.ANN. ? 21:52 (Supp. 1964).

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CALIFORNIA LAW REVIEWimpairmentof eyesight is accompaniedby a dog ... used as a leader orguide . . . is entitled to full and equal accommodations, advantages,facilities, and privileges of all public conveyances, hotels, lodging places,places of public accommodation,amusement or resort, and other placesto which the general public is invited, and shall be entitled to be accom-panied by such dog . . . subject only to the conditions and limitationsapplicable to personsnot so accompanied...."Variations in detail in these statutes are numerous.They relate to:the mode of defining the blind persons or others entitled to the benefitsof the act;92the public accommodationsto which the act applies;93thepresence or absence of restrictions on charging for the dog;94 training,harnessing, leashing and muzzling the dog;95 credentialing the master

92All the statutes requirethat the dog user be blind or partiallyblind, with the ex-ceptionof Idaho, which permitsguide dog trainersthe same accessto eatingestablishmentsas is afforded he blind user.93Seventeenjurisdictionsprovide the dog-led blind with access to places of publicaccommodationn generaland also to publicconveyances Arkansas,California,Connecticut,Georgia,Indiana,Iowa, Louisiana,Maine,Massachusetts,Michigan,Missouri,New Mexico,New York (except movie theatres), Rhode Island (except railroadcars other than chaircars on passengertrains), Tennessee,Texas, Washington). Five more provide access topublic conveyances(Colorado,Hawaii, Illinois, New Jersey, West Virginia), two provideaccessonly to eating places (Idaho,Virginia),and the remaining tate, accessto hotels andeating places (Florida).See note 74 suprafor the applicable tatutes.94Sixteen jurisdictionshave provisionsprohibitingthe exacting of additionalchargesbecauseof the access affordedthe guide dog (Arkansas,California, Connecticut,Georgia,Hawaii,Indiana,Iowa, Louisiana,Maine, Massachusetts,Missouri,New York, RhodeIsland,Texas, Washington,West Virginia). In six states the prohibition s expresslyapplicabletoboth publicplacesandpublicconveyances Arkansas,California,Connecticut, owa, Missouri,Texas), expresslyapplicableto common carriersonly in five states (Maine,Massachusetts,Rhode Island,Washington,West Virginia), impliedlyapplicable o publicplacesand publicconveyancesn fourstates (Georgia, ndiana,Louisiana,New York), andimpliedlyapplicableto carriersonly in one state, Hawaii.See note 74 supra for the applicable tatutes.95Louisianarequiresthat both the dog and the masterbe trainedat a "qualifieddogguideschool,"such trainingto enablethe masterto use the particulardog as a guide.Noneof the states extendsthe statutoryright to the "otherwisencapacitated" s is done in somewhite cane laws. See note 378 infra and accompanyingtext. Eleven states (Colorado,Connecticut, Georgia, Illinois, Maine, Massachusetts, Missouri, New Mexico, Texas,Washington,West Virginia) requirethat the dog guide be muzzled.The requirement smandatory except in Maine, where the managementof the facility to be charged may ormay not so demand.

Seven states require harnessing (Arkansas,Connecticut, Iowa, Michigan, Tennessee,Washington,West Virginia).The languageused in six of these is typified by the Arkansasprovisionwhichprovides he rightof access"whensaiddog guideis properlyharnessed..."The seventhstate, Washington, equiresharnessingonly of "guidedogs"which are entitledto enter public places, as distinguished rom "seeing eye" dogs, which can board publicconveyances.Onlyone state, Idaho,providesthat the dog needbe leashed.A harnesswouldseem to satisfy that requirement.Six states requireexpresslythat the guide dog be underthe control of the master (Colorado, Connecticut, Illinois, New Jersey, Rhode Island,Virginia).See note 74 suprafor the applicable tatutes.

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THE DISABLED AND TORT LAWand the dog;96custodyof the dog in public placesand conveyances;97exceptions o the operationsof the act;98whether he benefitof the actis expressedn terms of a positivelyconferred ighton the master andthe dog or a negativelimitationon the operatorsof places of publicaccommodation;99nd the penalieswhichmay be imposed or breachof

96Six states require he dog be "specially rained"(California, daho, Louisiana,Maine,Texas, Washington) of which two also require the user have credentials for the dog(Louisiana,Maine). Six states requirethe dog guide be properlycredentialed Connecticut,Louisiana, Maine, Michigan, Tennessee,West Virginia). Michigan requires the certifyingschoolbe approvedby the Veteran'sAdministration nd West Virginiarequiresthe dog beidentifiedby a certificate ssued by "The Seeing Eye." Maine is silent as to the origin ofthe credentialwhich may be requiredunder the statute.Connecticutand Maine requirethe credentialbe presentedupon requestof the agencyto be chargedunder the statute. Louisiana provides the operation of the statute is in-applicableunless evidenceof trainingis "furnished"-to whom or when is not indicated.Michigan and Tennesseerequire the blind person must first present for inspection thecredentialson the dog, and West Virginiarequiresonly that the blind personaccompaniedby a dog guide carry the prescribed ertificateof identification,with no languagerequiringpresentmentupon demandor otherwise.See note 74 suprafor the applicable tatutes.97Six states make express provisions regarding the custody of the admitted dog(Colorado, Connecticut,Illinois, New Jersey, Rhode Island, Virginia). Five of these grantthe right of immediatecustody to the master; the sixth, New Jersey, providesthe masteris to have custody, but subject to the rules and regulationsprescribedby the Board ofPublic Utility. Texas and Washingtonalso provide expresslyfor the custody of the dogaboardpublic conveyances;the formerprovidingthe carriershall designatewhere the dogis to ride and the latter granting custody to the master. These two states have separateprovisionsfor public placesand commoncarriers, he custody in public placesis impliedlygrantedthe blind master.Nineteen jurisdictions, ncluding Texas and Washington, impliedly grant custody ofthe dog to the blind person while in places of public accommodationand/or public con-veyances, with the exceptions as noted above (Arkansas, California, Florida, Georgia,Hawaii, Idaho, Indiana, Iowa, Louisiana,Maine, Massachusetts,Michigan,Missouri,NewMexico, New York, Tennessee, Texas, Washington,West Virginia). The implicationarisesfrom the languageof the statute permittingaccess to the "accompanying"dog, or thatallowingthe user to "take"the dog with him. The implication s strongest n the threestates(Georgia, Indiana, Louisiana),which prohibit the admitteddog from occupyinga seat inpublicconveyances.See note 74 suprafor the applicable tatutes.98Two states provideexceptionsto the operationof their statutes where the admissionof the dog guide would involve "danger."Hawaii providesthe exceptionwhere the pres-enceof the dog would endanger"otherpassengers";New York providesthe exceptionwheresuchaccess would "tend to createa dangerous ituation.. . ." The Hawaiianexception,whilelacking specificityas to what danger is to be apprehended,does limit the range of thedanger,while New York'sexception s not so limited,the escapeprovisionappearstoo vagueto lend certaintyto the statute. New York also exceptsmotion picture theatresfrom thescope of the statute. Rhode Island's statute exceptsall railroadpassengercars other thanchair cars, a loss of substantialsignificance.Hawaii also excepts the statute's applicabilitywhere the dog is unclean.While the statute does not specify the standardof uncleanlinessessentialto the exception,the exceptiondoes appeara reasonableone. See note 74 suprafor the applicable tatutes.99Seventeen states confer a positive right (Arkansas,California,Connecticut,Florida,Georgia, Idaho, Indiana, Iowa, Louisiana, Maine, Massachusetts,Missouri, New Jersey,RhodeIsland, Texas, Virginia,Washington);eleven imposea negativeduty on the manage-

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CALIFORNIA LAW REVIEWthe act.100

Amongall thesevariations n detail,however, he substantial ormu-lation s generally hesame:It is the formulation f the civil rightsacts.Thestrengths ndweaknesses f the formulation re the same n the onecaseas in the other for the meanings the same.The termsare thoseofdiscrimination,hat is, of classification nd comparison.f otherpeoplesimilarly ituatedare entitled o the right,then the disabledare; and soarepersonsof minority ace,color,andreligion.The rightmaybe deniedto all if this is done on equal terms;thatis, if the conditions ndlimita-tions areapplicableo all,or,in otherwords,aremaderegardless f race,color,religion,disability,or beingguidedby a dog.But thepurposeof the legislations a purposewith respect o whichall peoplearesimilarly ituated.The rightof access to publicaccommo-dationsand common arriers s a civil right.It is a basicright ndispens-able to participationn the community, substantive ightto whichallare fully and equallyentitled.The basic contradictions nd reconcilia-tionsof procedural nd comparative hraseology, n the one hand,andthe fundamental ubstantiverights, on the other hand, implicit andexplicit n the fourteenthamendment re here repeated.10' hus, whilethe guidedogstatutesfocus on the immediate roblemof gainingaccessby personswithguidedogsand theirrightof access s declaredo be thesame as for those withoutdogs, and while, accordingly,no particularmention s madeof the rightof access of those withoutdogs, yet theirright is presupposed,mplicitand assumedand hence is incorporatedwithinthe benefitsconferredby the act. The rightof all blindpersons,ment of the facility (California, Colorado, Hawaii, Illinois, Michigan,New Mexico, NewYork, Rhode Island, Tennessee,Texas,Washington);and West Virginia mposesa positiveduty on the managementof the facility to give accessto the dog-ledblind. CaliforniaandRhode Island expresslyconfer a positive right on the dog-user and, in the same section,imposethe correlativenegative duty on the facilityin express erms; Texasand Washingtoneach have separate tatutesfor each of the two types of facilities.The Texas provisionsarea conferralof a positive right on the blind with respect to public conveyancesand animpositionof a negative duty on the managementof the facility respectingpublic places.The Washingtonstatutes are exactly opposite, the positive right relating to public placesand the negativeduty to public conveyances.See note 74 suprafor the applicable tatutes.10 Nineteen states providea penalty for the violationof the statutes (Arkansas,Cali-fornia, Connecticut,Florida, Georgia,Hawaii, Indiana,Iowa, Louisiana,Maine, Massachu-setts, Michigan, Missouri,New Mexico, New York, Rhode Island, Tennessee,Texas, WestVirginia)all of which are misdemeanors.t should be noted that the inclusionof a penaltyprovisiondoes not necessarilyrelate to all provisionsof the statute; hence Rhode Island'spenalty provision s applicableonly to the denialof the blind'sright to be accompaniedbythe dog guideaboardpublic conveyancesand elevators.See note 74 suprafor the applicablestatutes.101See HARIS, THE QUESTFOREQUALITY 1960); TENBRoEK,EQUALUNDERLAW(1965).

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THE DISABLED AND TORT LAWand more generally, of all disabled persons, to the use of public accom-modations is therefore consequentially safeguarded by these acts.

Moreover, the existence of these acts in twenty-five states, with theirexplicit avowals and implicit assumptions, supported by the right ofpeople generally to the use of public accommodations and commoncarriers,might reasonably be taken as a sufficient declaration of publicpolicy and fundamental right to found judicial decisions in the otherstates vindicating the right of the disabled to full and equal access tothese necessary instrumentalities of community life. Ultimately, indeed,such may be seen as a mandate of the equal protection clause of thefourteenthamendment.

B. Architectural BarriersGuide dog legislation is intended to safeguard rights of access to anduse of common carriers and public accommodations. The legislationseeks to accomplish the purpose by declaring the rights, in form at leaston a comparative basis, and prohibiting the discriminatory denial orwithdrawal of them. The legislation deals only with one group of thedisabled: the blind, a group otherwise able-bodiedand perfectly capableof mounting stairs and passing through narrowdoorways once they findthem. The formulaemployedin the guide dog legislation is inadequateonits face to deal with the generalproblem of architecturalbarriers.Archi-tectural barriers are defined by the American Standards Association asfeatures of "the common design and construction of buildings andfacilities [that] cause problems for the physically handicapped thatlessen the social and economic gains now evident in the rehabilitationofthese individuals... [that] make it very difficultto project the physicallyhandicappedinto normal situations of education, recreation,and employ-ment."'02Simply declaring that the disabled, too, have rights of accessand use and forbiddingbuilding operators to deny them would do littlefor the wheel chair-boundparaplegicphysically denied access to and useof flights of stairs and narrow doorways. Moreover, prohibiting the in-stallation of such barriers would not do the trick. A more constructiveand affirmative approach is required. Buildings and facilities must be102 AMERICAN STANDARDS ASS'N, AMERICAN STANDARD SPECIFICATIONS FOR MAKINGBUILDINGS AND FACILITIESACCESSIBLETO, AND USABLE BY, THE PHYSICALLYHANDICAPPED3(1961). For some of the growing literature on architectural barriers, see GOLDSMITH,DESIGNING FORTHE DISABLED1963); id. at 226-36 (Bibliography); Nugent, Design ofBuildings to Permit their Use by the Physically Handicapped, New Building Research, Fall,1960, p. 51; Caniff, Architectural Barriers: A Personal Problem, 108 CONG.REC., app. 838(1962).

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CALIFORNIA LAW REVIEWerected accordingto a design taking account of the disabled and makingbuildings and facilities accessible to them and functional for them.

Specifications intended to do this were prepared by the AmericanStandards Association in 1961.103They were developed in consultationwith a large number of concernedgovernment officials,private agencieswith programs for the disabled, groups of the disabled themselves, andrelevant business and professional associations. Principal sponsorship,however, came from the National Society for Crippled Children andAdults and the President'sCommitteeon National Employ the PhysicallyHandicappedWeek. The specifications nclude: wide and suitably locatedparking places for the cars of the disabled;104 at least one ground levelor ramped entrance;105wide doors that can be opened with a singleeffort'06and with enough neighboringlevel floor space for wheel chairmaneuver;107single level stories or ramp-connected levels;108 toilets,mirrors, towel dispensers,l09 drinking fountains,l0 and public tele-phones"l of the properheight to be reachedfrom wheel chairs; identify-ing features enabling the blind to find particular rooms;ll2 auditory aswell as visual signals;13 open manholes, access panels, and excavationsin the buildings and on the grounds barricadedat least eight feet fromthe hazard and warning devices used;ll4 and, a prohibition on low-hanging or protrudingdoor closers, signs, and fixtures.l15The specifica-tions are intended not only for public buildings and facilities, but forany buildings and facilities generally used by the public. They are ap-plicable in remodelingpresent structuresas well as in new construction.While the specifications would seem a necessity for the disabledconfined to wheel chairs and only less so for those on crutches andbraces, they are also of importancefor the estimated five million Ameri-cans with mobility impairmentsof other sorts. The Standardslist amongthe direct beneficiariesthose with "non-ambulatorydisabilities," "semi-ambulatorydisabilities," "sight disabilities," "hearingdisabilities," "dis-

103 AMERICANSTANDARDS SS'N,op. cit. supra note 102.104Id. at ? 4.3.2.105 d. at ? 4.1.o06d at ? 5.3.1.07 Id. at ? 5.3.2.

108Id. at ? 5.5.2.109Id. at ? 5.6.1o Id. at ? 5.7."'Id. at ? 5.8.112Id. at ? 5.11.113 Id. at ? 5.12.14Id. at ? 5.13.2.115Id. at ?? 5.13.3, 5.13.4.

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THE DISABLED AND TORT LAWabiltities of incoordination,"nl6 nd "those manifestations of the agingprocesses that significantly reduce mobility, flexibility, coordination,andperceptiveness. . ."117 The differentand sometimes contradictory needsof these groups illustrate the fallacy of treating the disabled as a singlehomogeneousclass for all purposes.Although all the disabled are helpedby eliminating stairs, the crippled are helped far more than the deaf.Manholes, access panels and excavations are of greatest peril for theblind but are also hazardous for all. The deaf require visual signalswhich are of no use for the blind and vice versa for auditory signals.The paraplegic must have special toilet and washroom facilities andarrangements, while the blind couldn't care less where the mirror islocated. For the persons in the wheel chair and the mobile cripple, a siteis best developed which is level and without curbs and other abruptchanges. For the blind, large, level, open plazas and other areas aroundand among buildings, without discernible landmarks such as curbsand well-definedwalks, can be traversedonly by dead reckoning.To secure acceptance of the specifications by architects, builders,owners, and operators, the National Society for Crippled Children andAdults and the President's Committee on National Employ the Physi-cally HandicappedWeek established steering committees in the variousstates. They, together with others, put on an active, national campaign.As a result, remarkableprogress has been made in five years. Architec-tural barriers legislation has been adopted in twenty-one states.118Anational commission on architectural barriers to the rehabilitationof thehandicappedwas established in 1965 in the Department of Health, Edu-cation, and Welfare to focus national attention on the problem and toadvise, consult, study, and demonstrate.ll9The relevant professions, in-dustries, unions, and other interests have been made acquaintedwith the

6d. at ? 2.17 d. at ? 2.6.118"Penn. Becomes 21st State To Pass Architectural Barriers Legislation." Performance,Dec. 1965, p. 3. Available statutes are: Calif. Assembly Concurrent Resolution No. 19 (1965Reg. Sess.); Conn. Public Act No. 216 (Feb. 1965, Spec. Sess.); FLA. STAT.ch. 255.01, asamended by S.B. No. 109, ch. 65-493 (July 1, 1965); ILL. REV. STAT.ANN. ch. 111, ? 11(Smith-Hurd, Supp. 1965); IOWACODEANN. (Sen. File 352 Supp. 1965); MASS. GEN. LAWSANN., ch. 149, ? 44c (Supp. 1965); MINN. STAT.ANN. ?? 73.57-53.61 (Supp. 1965); MONT.REV. CODEANN. ?? 69-3701 to 69-3719 (Supp. 1965); Neb. Sess. Laws 1965, ch. 430; N.H.REV. STAT.ANN. ?? 155.8-a, 8-b (Supp. 1965); N. MEX. STAT. h. 67, ? 16-18 (Supp. 1965);N.D. CODEch. 48-02-18 (Supp. 1965); OHIO REV. CODEANN. ? 3781.111 (Supp. 1965);OKLA.STAT.ANN. tit. 61, ? 11 (Supp. 1965); PA. STAT.ANN. ?? 1455.1-1455.4 (Supp. 1965);R.I. GEN. LAWSANN. ? 37-8-15 (Supp. 1965); S.C. CODE?? 1-481 to 1-490 (Supp. 1965);Wis. STAT.ANN. ?? 101.305, 101.306 (Supp. 1965).11979 Stat. 1282, 29 U.S.C. ?? 31-33 (Supp. I, 1965).

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CALIFORNIA LAW REVIEWnature of the problemof architectural barriers and the relatively simpleand inexpensive design features required to reduce it.120The levels ofattack have thus been private persuasion,official sponsorship,and, withrespect to public buildings and facilities, legislative mandate.The central feature of the state statutes is reliance on the work of theAmerican StandardsAssociation. Indeed, the principal divergenceamongthe statutes is the extent to which they copy the specifications outrightor incorporatethem by reference.A fairly typical statute-and, havingbeen passed in 1962, one of the earlier ones-is that of Massachusetts,which provides that public buildings "shall conform with the bookletentitled 'American standard specifications for making buildings andfacilities accessible to, and usable by, the physically handicapped'ap-proved by the AmericanStandardsAssociation, Incorporatedon Octoberthirty-first, nineteen hundred and sixty one."'21Montanal22and SouthCarolina,123n the other hand,practically enacted the booklet as it stood,even to the point of including explanatory footnotes. The state statutesdiffer among themselves as to the types of buildings and facilities cov-ered, permissible exceptions, methods and agencies of enforcement,anda requirementfor public hearing when administrativeagencies are dele-gated authority to establish standardsby way of regulations.Most of thestatutes accept a variant of the formula used in Connecticut: "[A]11buildings and facilities constructed, remodeled or repaired by the stateor its agents or by any political subdivisionof the state or its agents whenstate funds or state interest is involved."'24Wisconsinapplies its require-ments to "any public buildings, including state-owned buildings orpubjic housing projects . . . and mercantile buildings .. ..125 Theexcepting clause provided in the American Standard Specifications-"cases of practical difficulty, unnecessary hardship, or extreme differ-

120An exampleof voluntarycomplianceby those in chargeof public buildings s thatof the Universityof Californiawhich has approveda plan for all of its campuses o makethem accessible to the disabled and usable by them. See, e.g., UNIVERSITY OF CALIFORNIA,BERKELEY, ARCHITECTSND ENGINEERSMANUAL? 8.01, at 5-6 (1960); University ofCalifornia,Building Design Considerationsor PhysicallyHandicappedStudents,May 24,1963.Indeed,with respectto at least one groupof the disabled, he blind, there have beenspecial facilitiesfor at least the past twenty-five years on the Berkeleyand Los Angelescampuses.121Mass Acts &Resolves1962,ch. 662.122MONT. REV. CODEANN. ?? 69-3701 to 69-3719 (Supp. 1965).123S.C. CODE ? 1-481 to 1-490 (Supp. 1965).124Conn.PublicAct No. 216 (Feb. 1965,Spec.Sess.).125Wis. STAT.ANN. ? 101.305 (Supp. 1965). Specificallyexcepts: apartment houses,conventsand monasteries,ails or other placesof detention,garages,hangers,hothouses,allbuildingsclassifiedas hazardousoccupancies,and state buildings specificallybuilt for fieldservicepurposes,such as but not limited to conservation ire towers, fish hatcheries,treenurserybuildingsand warehouses.

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THE DISABLED AND TORT LAWences"l2--is generally liberalized in the state statutes to require only"substantial conformity"'27or conformity "in so far as. feasible andfinancially reasonable."'28Little is said in most of the statutes aboutenforcement. Usually the administrative officials responsible are iden-tified but not much more.129Minnesota provides that construction orremodelingof public buildings owned by the state "shall not be hereaftercommenced... until the plans and specifications ... have been approvedby the fire marshal."130Wisconsin's provision is specific and drastic:"The owner of any building who fails to meet the requirementsof thissection may be requiredto reconstruct the same by mandatoryinjunctionin a circuit court suit brought by any interestedperson. Such person shallbe reimbursed,if successful, for all costs and disbursements plus suchactual attorney fees as may be allowed by the court."l31

C. The Strugglefor the Streets"Public thoroughfaresare for the beggar on his crutches as well asthe millionaire in his limousine."'32 "The ordinary purpose of sidewalksand streets includes their use by the blind, the very young and the aged,the cripple and the infirm,and the pregnantwoman. For such persons touse the streets is not contributorynegligence."133Once the disabled do appear in a public place where, as it is said,they have a right to be, what are the conditions of their presence? Withwhat freedoms and liabilities do these phrases endow them? What aretheir responsibilities toward themselves, toward others, and of otherstoward them? Is the right to use the streets the same as the right ofreasonably safe passage? If the disabled are liable for all acts or acci-

dents proximately caused by their disability, if public bodies and able-bodied persons stand exactly in the same relationship to them as to126AMERICANTANDARDSSS'N, op. cit. supra note 103, at ? 1.2.127N. MEX. STAT.? 67-16-18(B) (Supp. 1965).128OKLA. TAT.ANN. tit. 61, ? 11 (Supp. 1965). In Rhode Island the administratorsneed only "take into consideration standards promulgatedby the American StandardsAssociation ...." R.I. GEN.LAWSANN. ? 37-8-15 (Supp. 1965).129E.g., MONT.REV. CODEANN. tit. 69-3719 (Supp. 1965); Neb. Sess. Laws 1965, ch.430; N.H. REV.STAT.ANN. ch. 8-b (Supp. 1965). OKLA.STAT.ANN. tit. 61,512 (Supp. 1965);PA. STAT.ANN. tit. 71, ? 1455.3 (Supp. 1965); S.C. CODE? 1-49 (Supp. 1965).130MINN. STAT.ANN. ch. 73-60 (Supp. 1965).131Ws. STAT.ANN. ? 101.305(2) (Supp. 1965). For states requiring public hearingsbefore issuance of standards see, e.g., WIS. STAT.ANN. ? 101.306 (Supp. 1965); Conn. PublicAct. No. 216, ? 2 (Feb. 1965, Spec. Sess.).l32 Weinstein v. Wheeler, 127 Ore. 406, 413, 271 Pac. 733, 734 (1928), rehearing denied,135 Ore. 518, 296 Pac. 1079 (1931).133Garber v. City of Los Angeles, 226 Cal. App. 2d 349, 358, 38 Cal. Rptr. 157, 163(1964), quoting David, Municipality Liability in Tort in California, 7 So. CAL. L. REv.372, 452 (1934).

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CALIFORNIA LAW REVIEWable-bodiedpersons, if, in other words, disability is not to be taken intoconsiderationfor these purposes so as positively to protect the disabledagainst majorhazards if not minor harms-then the right to be in publicplaces is best described by Shakespeare:

And be thesejuggling iendsno morebelievedThat palterwith us in a doublesense;Thatkeepthe wordof promise o ourear,And break t to ourhope.134This would indeed be requiringthe blind man to see at his peril, some-thing that Oliver Wendell Holmes told us a long time ago is not to bedone.l35 In these circumstances, every trip to the mailbox or store,every stroll in the sun, every congregationwith one's neighbors, everycatching of a bus to go to school or work-all the ordinary and routinetransactionsof daily life safely conductedby the rest of the communityin public places as a matter of course-would be conducted by the dis-abled at great hazard; such greathazard in fact as to encourage, f not tomake necessary, their custodialization. To live in the world presupposesprogress toward a goal of integration.

The judicial answers to the questions posed above have come in theform of special substantive rules on the disabled collected under therubricof the law of negligence.The courts and textwritersprefer to saythat the standardsare not special or different but one and the same foreverybody.'36It is the circumstancesto which the standards apply thatare special and different,a mode of expression giving a sense of rhetoricalintegrity. However, the differencesare important,whether they are saidto be in the standards, as in the case of children,137 or in the circum-stances to which the standards apply, as in the case of the disabled.138Negligence first appeared as an independent tort or civil wrong forwhich the courts would allow an action for damages in the 19th centuryat a time when the industrial revolution, and particularly the develop-

134MACBETH, ct V, scene viii, lines 19-23.135HOLMES,THE COMMON AW 109 (1923 ed.).136Fenneman v. Holden, 75 Md. 1, 22 Atl. 1049 (1891); Jakubiec v. Hasty, 337 Mich.205, 59 N.W.2d 385 (1953); Davis v. Feinstein, 370 Pa. 449, 88 A.2d 695 (1952); Fletcherv. City of Aberdeen, 54 Wash. 2d 174, 338 P.2d 743 (1959). 2 HARPER& JAMES, TORTS? 16.7 (1956); PROSSER,ORTS 32, at 155 (3d ed. 1964); RESTATEMENTSECOND),TORTS? 283c (1964); 38 AM. JUR. NEGLIGENCE210 (1941).137 In 1841, in the case of Lynch v. Nurdin, L.R., 1 Q.B. 29 (1841), the Queens Benchlaid down the basic doctrine in respect to the standard of care required of children-it wasthat of a reasonably prudent child of its years and development, not that of a reasonablyprudent adult.138FLEMING,TORTS249 (3d ed. 1965); 2 HARPER& JAMES,op. cit. supra note 136,? 16.7, at 923-24; PROSSER,p. cit. supra note 136, ? 32, at 154-57; RESTATEMENTSECOND),TORTS 283c (1964),

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THE DISABLED AND TORT LAWment of the railroads, was beginning to produce a heavy crop of acci-dental injuries to the person.'39 The law of negligence is still true to itsorigins and is dominatedtoday by the same sorts of factors, multiplied athousandfold by the accident-producing capacity of modern industryand urban life, and above all, by conditions of automobile traffic. Notonly are these very factors the causes of a great deal of disability-though disease is still the major cause-but they constitute and give riseto new and ever-increasinghazards of life for those already disabled fromwhatever cause.

Summarizing he generally accepted doctrine, the second Restatementof the Law of Torts defines negligence as "conduct which falls below thestandard established by law for the protection of others against un-reasonable risk of harm."'40The risk of harm is to be judged in the lightof the likelihood that the harm will occur as well as its extent andseverity. The risk, so judged, is then to be balanced against the char-acter and importance of the conduct creating the risk and the feasi-bility and burden of providing protection against it.141The risk of harmis unreasonable if the first factors outweigh the second and the conductwhich creates it is then said to be lacking in "due care." This is conductin which the reasonableman of ordinary prudencedoes not engage. It isby this general formula, applied as the courts say to the special circum-stances of the physically disabled, that the judges have sought to definethe nature and scope of their right to live in the world. The judges poseas the critical question alike for those who create the risk and the dis-abled who run it: Would a reasonableman of ordinary prudence in likecircumstances have done either?l42It is only if the disabled plaintiffmeets this standard of conduct and the defendant does not that the costof injuries will be placed upon the latter. Otherwise,it will be allowed tolie where it falls.If the disability is an element in the circumstances in which the dis-abled person finds himself, and if all elements in the circumstances areto be given their proper weight by the ordinarilyprudent man in regulat-ing his conduct, then a person's disability is to be taken into considera-

139 FLEMING, op. cit. supra note 138, at 107-08; 2 HARPER & JAMES, op. cit. supra note136, ? 12.3, at 751-52; PROSSER,p. cit. supra note 136, ? 28, at 142-43.140RESTATEMENTSECOND),TORTS? 282 (1964). See also FLEMING,op. cit. supranote 138, at 110; 2 HARPER& JAMES,op. cit. supra note 136, at ?? 16.1, 16.2; PROSSER,op. cit. supra note 136, at ?? 30, 31.141United States v. CarrollTowing Co., 159 F.2d 169 (2d Cir. 1947); Chicago,B. &Q.R.R. v. Krayenbuhl,65 Neb. 889, 91 N.W. 880 (1902); PROSSER,p. cit. supranote 136, at151-52; RESTATEMENT SECOND), TORTS ?? 291-93 (1964).142PROSSER, p. cit. supra note 136, at 154; RESTATEMENTSECoND), TORTS? 283(1964).

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CALIFORNIA LAW REVIEWtion in determining iability for injuries. In this proposition,English andAmerican courts today unanimously agree.143Dean Prosser summarizesthe conclusion by saying that the disabled person is entitled "to haveallowance made by others for his disability"; and he in turn, must actreasonably"in the light of his knowledgeof his infirmity ... treated ...merely as one of the circumstances under which he acts."144"Allowancemade ... for disability"; how, to what extent, in which circumstances,by whom? As to these issues, the courts are in strong disagreement.Thedisabled person, says Dean Prosser, "cannot be required to do the im-possible by conformingto physical standardswhich he cannot meet."'45Quite so! But if the right to live in the world consists only of exemptionfrom this requirement,its proclamationmay be a cruel hoax. To whatrequirementsmay they be subjected: to sally forth only in the care of anattendant? To use a dog as guide? To carry a cane, and if so, of anyparticular sort, and to be employed in any particular way? To travelonly in familiarstreets and places? Not to enter streets and places knownto be defective or where work is being done? Not to enter streets andplaces possibly presenting particular traffichazards? To proceed at hisperil, because however carefully he may travel others need not anticipatehis presence and take precautionsaccordingly?The courts are divided as to the answers to each and every one ofthese questions; and the rhetoric is even more varied than the answers.The majority of courts say that it is not negligence per se for a blindman to walk the streets without a companion or attendant;l48 othersthat he may do so only in certain circumstances.l47 Some say that it iscontributorynegligenceas a matter of law to travel without dog, cane, or

143 E.g., Muse v. Page, 125 Conn. 219, 4 A.2d 329 (1939); Shields v. Consol. Gas Co.,193 App. Div. 86, 183 N.Y. Supp. 240 (Sup. Ct. 1920); Cook v. City of Winston-Salem, 241N.C. 422, 85 S.E.2d 696 (1955); Weinstein v. Wheeler, 127 Ore. 406, 271 Pac. 733 (1928),rehearing denied, 135 Ore. 518, 296 Pac. 1079 (1931); Davis v. Feinstein, 370 Pa. 449, 88A.2d 695 (1952); Smith v. Sneller, 345 Pa. 68, 26 A.2d 452 (1942); Fletcher v. City ofAberdeen, 54 Wash. 2d 174, 338 P.2d 743 (1959); Haley v. London Elec. Bd., [1965] A.C.778 (1964).144PROSSER, p. cit. supra note 136, ? 32, at 155; FLEMING, p. cit. supra note 138, at116-17, 162-63; 2 HARPER& JAMES,op. cit. supra note 136, ? 16.7, at 920-21.145PROSSER, p. cit. supra note 136, ? 32, at 155. See also RESTATEMENTSECOND),TORTS 283c (1964).140E.g., Town of Salem v. Goller, 76 Ind. 291, 292 (1881); Balcom v. City of Inde-pendence, 178 Iowa 685, 696, 160 N.W. 305, 310 (1916); Kaiser v. Hahn Bros., 126 Iowa,561, 563, 102 N.W. 504, 505 (1905); Neff v. Town of Wellesley, 148 Mass. 487, 4915,20N.E. 111, 113 (1889); Smith v. Wildes, 143 Mass. 556, 559, 10 N.E. 446, 448 (1887);Hestand v. Hamlin, 218 Mo. App. 122, 127, 262 S.W. 396, 397 (1924); Sleeper v. Sandown,52 N.H. 244, 251 (1872); Davenport v. Ruckman, 37 N.Y. 568, 568-73 (1868); Fletcher v.City of Aberdeen, 54 Wash. 2d 174, 178, 338 P.2d 743, 745 (1959); Masterson v. Lennon,115 Wash. 305, 308, 197 Pac. 38, 39 (1921).147 E.g., Florida Cent. R.R. v. Williams, 37 Fla. 406, 20 So. 558 (1896).

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1966] THE DISABLED AND TORT LAW 867companion;148 thers, that the failure to use one or more of these travelaids presents a question for the jury as to whether due care was em-ployed.149No courts say that a blind man may not, when taking theproper precautions, enter unfamiliar territory; most courts, however,emphasize the plaintiff's knowledge of the surroundings and the fre-quency of his presence.150Some say that the plaintiff's knowledge thatthe streets are or may be defective or dangerous creates a kind of as-sumption of risk;15' others, that in the circumstances, the disabledperson may proceed but must do so with due care in the light of hisknowledge.l52The latter rule is also applied by some courts to blind per-sons in railway depots, at railway street crossings,and like places of simi-lar danger,l53while others say that it is gross negligence for blind personsto be in such places alone.l54Some courts say that the disabled mayproceed upon the assumptionthat the streets and highways are kept in areasonably safe condition, and that cities and abutting property ownersmust expect the disabled to be abroad in the land and accordingly musttake precautions necessary to warn or otherwise protect them.155Otherssay that those who create, maintain, or tamper with the streets andpublic passageways are only under a duty to safeguard the able-bodiedpedestrian.'56No courts have held or even darkly hinted that a blind man may rise

148Id. at 419-20, 20 So. at 561-62.149Smith v. Sneller, 345 Pa. 68, 72, 26 A.2d 452, 454 (1942); Fraser v. Freedman, 87Pa. Super. 454, 457 (1926).150E.g., Balcom v. City of Independence, 178 Iowa 685, 696, 160 N.W. 305, 309 (1916);Chesapeake & Potomac Tel. Co. v. Lysher, 107 Md. 237, 240, 68 Atl. 619, 621 (1908); Neffv. Town of Wellesley, 148 Mass. 487, 489, 20 N.E. 111 (1889); Smith v. Wildes, 143 Mass.556, 559, 10 N.E. 446, 448 (1887); Hestand v. Hamlin, 218 Mo. App. 122, 127, 262S.W. 396, 397 (1924); Sleeper v. Sandown, 52 N.H. 244, 252 (1872); Davenport v. Ruckman,37 N.Y. 568, 573 (1868).151E.g., Garbanati v. City of Durango, 30 Colo. 358, 360, 70 Pac. 686 (1902); Cook v.City of Winston-Salem, 241 N.C. 422, 430, 85 S.E.2d 696, 701-02 (1955).152E.g., Hestand v. Hamlin, 218 Mo. App. 122, 128, 262 S.W. 396, 398 (1924); Marks'Adm'r v. Petersburg R. Co., 88 Va. 1, 13 S.E. 299 (1891).153See, e.g., Farley v. Norfolk & W. Ry., 14 F.2d 93 (4th Cir. 1926); Rosenthal v.Chicago & A.R.R., 255 Ill. 552, 556, 99 N.E. 672, 672-73 (1912); Lortz v. New York Cent.& H.R.R., 7 App. Div. 515, 522, 40 N.Y. Supp. 253, 257 (1896).154 Florida Cent. R.R. v. Williams, 37 FIa. 406, 419, 20 So. 558, 562 (1896).155 E.g., Balcom v. City of Independence, 178 Iowa 685, 693, 160 N.W. 305, 308 (1916);Rock v. American Constr. Co., 120 La. 831-33, 45 So. 741-42 (1908); Sleeper v. Sandown,52 N.H. 244, 245 (1872); Shields v. Consol. Gas Co., 193 App. Div. 86, 90, 183 N.Y. Supp.240, 242-43 (1920); Davenport v. Ruckman, 37 N.Y. 568-73 (1868); Fletcher v. City ofAberdeen, 54 Wash. 2d 174, 179, 338 P.2d 743, 746 (1959); Masterson v. Lennon, 115 Wash.305, 308, 197 Pac. 38, 39 (1921); Short v. City of Spokane, 41 Wash. 257, 261-62, 83 Pac.183, 185 (1906); Haley v. London Elec. Bd., [1965] A.C. 778, 790 (1964).156Hestand v. Hamlin, 218 Mo. App. 122, 127, 262 S.W. 396, 397 (1924); Carter v.Village of Nunda, 55 App. Div. 501, 504, 66 N.Y. Supp. 1059, 1061 (1900); Cook v. City ofWinston-Salem, 241 N.C. 422, 428, 85 S.E.2d 696, 700 (1955).


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CALIFORNIA LAW REVIEWin the morning,help get the children off to school, bid his wife goodby,andproceedalong the streets and bus lines to his daily work, without dog,cane, or guide, if such is his habit or preference,now and then brushinga tree or kicking a curb, but, notwithstanding,proceedingwith firm stepand sure air, knowing that he is part of the public for whom the streetsare built and maintained in reasonablesafety, by the help of his taxes,and that he shareswith others this part of the world in which he, too, hasa right to live. He would then be doing what any reasonable,or prudent,or reasonablyprudent blind man would do, and also what social policymust positively foster and judges in their developing common law mustbe alert to sustain.What were these blind plaintiffs doing in the streets and highwayswhen they were injured? The answer is very instructive. They weredoing what other people do who live in the world. In the two leadingWashington cases,157hey were going to and from work as piano tuners;in Massachusetts,a piano tunerhad stoppedat a store, made a purchase,and was going on down the street;'58 in Pennsylvania, a door-to-doorsalesman of small householditems was in course of canvassinghouses; 59in New York, a door-to-door salesman was returning home from themeat market down the street;'60 in London, a telephone operator wasfollowinghis daily routine of going to work;16l in City of Independence,Iowa, a businessmanwas on his usual path to and from the business partof town;'62 n New Hampshire,a farm hand was passing along a familiarroad, "a good man to hire ... for ... chopping wood, felling trees, mow-ing, reaping, threshing grain, digging potatoes, planting and hoeing,althoughwith difficultythe first time hoeing corn"; 63in Town of SpiritLake, Iowa, the plaintiffwas taking the only available walk to church; 64in North Carolina, the plaintiff was making a Sunday afternoon visit toa friend;'65 n Vermont, the plaintiff, riding along on a jaunt in a wagonwith anotherfellow and two women,got out on the public highway in thedarkof night to urinate.'66Moreover,almostall of theseplaintiffshad one

157Fletcher v. City of Aberdeen, 54 Wash. 2d 174, 338 P.2d 743 (1959); Masterson v.Lennon, 115 Wash. 305, 197 Pac. 38 (1921).158Smith v. Wildes, 143 Mass. 556, 10 N.E. 446 (1887).159Smith v. Sneller, 345 Pa. 68, 26 A.2d 452 (1942).

160 Shields v. Consol. Gas Co., 193 App. Div. 86, 183 N.Y. Supp. 240 (1920).161Haley v. London Elec. Bd., [1965] A.C. 778 (1964).162Balcom v. City of Independence, 178 Iowa 685, 160 N.W. 305 (1916).163 Sleeper v. Sandown, 52 N.H. 244, 245 (1872).164Yeager v. Town of Spirit Lake, 115 Iowa 593, 88 N.W. 1095 (1902).165Cook v. City of Winston-Salem, 241 N.C. 422, 85 S.E.2d 696 (1955).166 Glidden v. Town of Reading, 38 Vt. 52 (1865). In Missouri, the restaurant operatorwas walking to other parts of town for supplies as he usually did several times each day.Hestand v. Hamlin, 218 Mo. App. 122, 262 S.W. 396 (1924). In the Glenwood, Iowa case,

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the right to live in the world: the disabled in the law of torts

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