The LookOut columns | What I Say

Frank Gruber

Spread the risk but not the liability

By Frank Gruber

I felt conflicted last week when the City of Santa Monica settled the cases that arose from the Farmers Market tragedy. (City Settles Farmers Market Case," May 22, 2008)

One part of me wanted the plaintiffs to receive compensation for their injuries and their lost loved ones, and the City's insurance policies were the best source of the money. Another part of me, however, cannot accept that the City was negligent because it only used sawhorses to block off the streets for the market.

July 16, 2003 was the worst day in the history of Santa Monica, but it could have been so even if the market hadn't been open when George Weller sped down Arizona Avenue in his car.

Think of it this way -- if Weller been driving at lunch time on a different day, or on a Wednesday but after the market had closed, he might have run through a red light and through the crowd of forty or fifty people who often cross Arizona Avenue at one time to get from one block of the Promenade to another. He might have killed or injured nearly as many people as he did in the market.

Would the City have been responsible because a red light will not stop a speeding car? Does the City have to protect street crossers with iron bollards? People at a market on a closed-off street are probably safer than an average pedestrian crossing an average street.

I don't say this to underplay the pain experienced by the plaintiffs in the Farmers Market lawsuits; as I said, I'm pleased that they've received compensation, although probably like them I wish we had a better system to compensate them in these circumstances more quickly and with less anxiety. One goal of a modern tort system is to spread the costs of our modern mechanized society to the whole economy. We almost have a strict liability for governments in accidents like this; perhaps we should legislate it.

But so long as we are basing liability on conduct, I will argue that the City was not negligent for closing off the street only with sawhorses because it's important for us who believe that "the streets belong to the people" -- particularly people who are walking -- not to allow cities to allow fears of liability to dominate how they design streets and how they determine who is going to use them.

That's what cities did in the twentieth century when first confronted by the automobile. They gave urban design over to the traffic engineers. The result was a series of road types, from limited access highways all the way down through urban "arterials" to suburban residential streets designed for cars going forty miles per hour, that allowed drivers to go fast by relegating pedestrians to the sidelines. These streets are the least safe streets for walkers -- less safe that a street that's been closed and marked off for a public event.

If we want to make streets safer for pedestrians, then we need to consider who we allow to drive and we need to slow cars down. But that's hard to do in a culture obsessed with the "right to drive."

The City's settlement, in which it did not assume liability for negligence and used insurance (which spreads the risk of injuries from unforeseeable but statistically predictable injuries to the wider economy) to pay the plaintiffs, probably reflects the best result possible. Too bad it took five years and was beset by uncertainty, but that's the tort system we have.

* * *

One policy that governs this column is that I don't make endorsements in local elections. While at times this frustrates me, I'm relieved in the case of the current primary campaign between Fran Pavley and Lloyd Levine for the Democratic nomination to replace the term-limited Sheila Kuehl as our state senator.

This is an election that reminds me of the Obama/Clinton contest for the presidential nomination, but not because one of the candidates is a woman and one is man. It's because both battles illustrate the perceptiveness of the term -- the "narcissism of small differences" -- that Freud used to describe how we find it easier sometimes to direct our antipathies at people who resemble us, because we like to take pride in the "small differences" that distinguish us from them.

Since Fran Pavley represented the Assembly district that includes Santa Monica, I am much more familiar with her (I've met her, in fact) than I am with Lloyd Levine. She had a good record in the Assembly, notably on global warming issues, and she has a impressive list of endorsements [http://www.franpavley.org/endorsements.html], including from Sen. Kuehl and our local Assembly member, Julia Brownley.

But then Mr. Levine also emerged from the Westside/Valley liberal milieu, and he also has an impressive list of endorsers [http://www.lloydlevineforsenate.com/endorsements.html] from same pool of progressive Democratic officials and labor unions.

If you look at the lists of endorsers you'll see that Ms. Pavley has stronger support from the environmental community, while Mr. Levine has in general heavier hitters on the labor side. But then I doubt that Ms. Pavley, who has her own labor endorsements, is anything but pro-labor, and I doubt that Mr. Levine is anti-environment.

Based on the flood of mailers they've sent out, the two candidates are battling furiously -- and that's the narcissism of small differences.

The race will probably be decided by which candidate can get the vote out better in his or her respective geographic base.

* * *

Also on the ballot are two statewide measures, propositions 98 and 99. Prop. 98 is an execrable bit of right-wing deception, an attempt to use anxiety about government's use of eminent domain to outlaw rent control and wreak some havoc with local authority over land use. Prop. 99 is the "good" alternative that opponents of 98 have put on the ballot to cover only the eminent domain issue as it relates to homeowners.

The opposition to 98 has said to vote No on 98 and Yes on 99, but I suggest doing them one better -- vote No on both measures. Prop. 98 is bad, but 99 is at best an imperfect solution to any problems there have been with eminent domain in California (which have been less frequent than in other states because of the existing protections in the law here), and by approving a proposition like 99 the voters of the state are just buying further into ballot box government.

Eminent domain reform is a job for our legislature, not for the voters.


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The views expressed in this column are those of Frank Gruber and do not necessarily reflect the opinions of
The Lookout.
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