New York Personal Injury Law Blog » Fault, Personal Safety


August 16th, 2019

Fault and Personal Safety

Most readers know that when I write about safety it’s with good reason: There’s no need to hold someone at fault for injuries/death if the incident never happened.

The concepts of safety and fault come from very different places. And while this seems like second nature to many of us, some folks seem to conflate the two concepts.

So let’s straighten out that misconception.

Personal safety is a basic animal instinct. It’s why Bambi fled the forest fire. Why turtles retreat into their shells at the sign of danger. Why civilians flee war. Why we avoid cars drunkenly weaving on the highway. Why we lock our doors at night. Why we teach our kids to be careful. It’s not about right and wrong, it’s a Darwinian instinct for survival.

We can’t, by our conduct, always guarantee that personal safety. After all, even the world’s best driver might be hit from behind by a millennial too absorbed with texting to notice the stopped car in front.

But we can take efforts to hopefully minimize that danger. Most folks, for example, won’t open attachments to emails from strangers. The fact that some Bulgarian criminal trying to place a virus on your computer is 100% in the wrong is cold comfort when dealing with the fallout.

Some people take good driving classes, for example, when they are learning and insurance companies (at least in New York) will give discounts for those that take them.

By contrast, fault is a human created legal system of holding people accountable for their acts after the conduct has occurred, whether the injuries were caused by negligence, recklessness or intentional conduct. That fault finding could be either civil or criminal.

I’ve spent 30+ years in the fault part of this dynamic, attempting to hold folks accountable on the civil side for conduct that is negligent or worse.

There are some people, however, who seem to think that urging people be safe is somehow giving a free pass to the malfeasors. This is particularly true in the realm of physical assaults when politics and passion seem to impair the ability to think logically.

Personal safety and holding people at fault are not incompatible. They are very much separate and distinct concepts. It’s why parents teach their kids to be careful to avoid incidents and why our justice system tries to hold people accountable after those incidents occur.

You don’t want to find yourself in a lawyer’s office after a bad event. Worse, your surviving family members don’t want to be there. I’ll often tell people you don’t want me to be your lawyer. Because if I am, something bad has happened.

So try to avoid the bad. It beats the hell out of assigning fault afterwards.

When I was a kid I had a little paperback book called “Tombstone Humor.” This epitaph (or something similar to it) stuck in my brain:

Here lies the body of John McCray,

He died defending his right of way.

He had the light, He had some pluck,

But the other fellow had the truck.

4 thoughts on “Fault and Personal Safety

  1. “So try to avoid the bad. It beats the hell out of assigning fault afterwards.”

    Truer words were never spoke…and particularly timely as my 16 y.o. twins just received their driver licenses. I have been trying to instill this concept into them well-before they started driving. Praying it sticks!

    • As the father of two teens it gives me plenty of joy when I hear them alert me to bad drivers in the area so that I can (hopefully) avoid them.

      Step one is always recognition of a potential danger.