Blindness or severe visual impairment affects more than 200,000 people in Wisconsin alone. Laws have been created on a state and federal level to protect individuals with severe visual impairments so that they can independently access the world around them.
Katelyn Sandfort, U.W. 2010, is a shareholder with Herrling Clark Law Firm, Ltd., in Appleton, where she focuses on personal injury matters.
One such important law is Wis. Stat. section 346.26(1), which provides protection for blind and visually impaired individuals when crossing the road. This statute comes up in litigation most often when there has been a tragic vehicle versus pedestrian accident involving a blind person.
About the White Cane Law: Wis. Stat. section 346.26(1)
An operator of a vehicle shall stop the vehicle before approaching closer than 10 feet to a pedestrian who is carrying a cane or walking stick which is white in color or white trimmed with red and which is held in an extended or raised position or who is using a service animal, as defined in s. 106.52 (1) (fm), and shall take such precautions as may be necessary to avoid accident or injury to the pedestrian. The fact that the pedestrian may be violating any of the laws applicable to pedestrians does not relieve the operator of a vehicle from the duties imposed by this subsection.
What is colloquially known as the White Cane Law was first introduced in Wisconsin over 75 years ago. The law encourages independence for blind and severely visually impaired people by allowing them the ability to be mobile within their communities. Those with severe visual impairments are taught that proper use of a cane or walking with a service animal will keep them safe.
When there has been an accident involving a blind or severely visually impaired person, counsel should pay special attention to whether the parties are in compliance with the elements of the White Cane Law: Did the pedestrian have a white cane or a service animal with them? If it was a white cane, was it in an extended or raised position?
Just because the White Cane Law appears to apply to your case, whether as a plaintiff or defense attorney, there are further considerations that need to be analyzed. The statute only states that failing to stop within 10 feet of a pedestrian is a violation of section 346.26(1). It does not indicate that, as a matter of law, the driver is more liable for the accident than the pedestrian.
Special care must be taken to understand the facts of the accident to determine who may be more liable. Was the visually impaired person walking in a crosswalk? How far across the road did the visually impaired person get before contact?
The liability analysis will be far different if the visually impaired individual stepped out from a curb directly in front of an oncoming car as compared to making it entirely across one lane of traffic before being struck by an oncoming vehicle in the opposite lane.
Evidence to Collect
Motor vehicle versus pedestrian accidents can have catastrophic consequences. The claimant may be very seriously injured and potentially not recall the accident or could have died from his or her injuries. Like other accidents, the claimant’s attorney will want to see if there were any witnesses to the accident who can corroborate their client’s recollection, or if there may be intersection cameras that caught the accident.
Additionally, the attorneys will want to ascertain all they can about the training the visually impaired person underwent prior to the accident and about how they were trained to navigate intersections or roadways. This information can be provided through school systems, so educational records can be valuable in obtaining this information if the injured person is a minor.
Experts Witnesses
Expert witnesses can be a valuable resource in a case involving an alleged violation of section 346.26(1).
For example, a reconstructionist can be employed to determine when and if a motor vehicle operator could have avoided contact based on where in the roadway the pedestrian was hit.
Further, experts in the use of guide dogs and cane usage can be valuable in explaining to a jury or the opposing party why this statute exists and whether the pedestrian was acting in conformance with established practices.
Focus Groups
If the alleged damages warrant it, consideration could be given to doing a focus group. Even if a severely visually impaired person is legally crossing the road in accordance with section 346.26(1), a focus group may help determine how a jury might apportion liability.
Motions to Consider
As with any motor vehicle versus pedestrian case, both plaintiff’s counsel and defense counsel will have standard motions in limine they plan to file. However, as the evidence comes in and the case progresses, additional motions, including potentially dispositive motions, might be appropriate.
For example, plaintiff’s counsel might consider bringing a motion for summary judgment for a declaration that the defendant is negligent as a matter of law for violating a safety statute.
If the case also involves an injury to a service dog, a defense attorney may wish to file a motion in limine to keep out that information, as it could unnecessarily emotionally sway a jury.
Conclusion
Cases involving the White Cane Law demand a nuanced understanding of both statutory obligations and practical realities.
Whether representing a plaintiff or a defendant, attorneys must carefully assess the facts, consult relevant experts, and anticipate evidentiary hurdles to effectively advocate for their clients in cases that involve Wisconsin’s blind and visually impaired residents.
This article was originally published on the State Bar of Wisconsin’s Litigation Section Blog. Visit the State Bar sections or the Litigation Section webpages to learn more about the benefits of section membership.
