A very interesting concept we discussed a lot in Torts class in law school: least-cost avoider. Basically, legal economic theory suggests that tort liability should fall on the party in the best position to avoid the harm. That’s the most efficient way to reduce the harm.

The argument against least-cost-avoider is that it can discourage behavior that you might otherwise want to encourage. Which came to mind as I read Alvin Landsman’s TAB op-ed encouraging safe pedestrian habits. Yes, there is no question that the person best equipped to avoid a pedestrian/car conflict is the pedestrian. If you wait until traffic is totally stopped or there is no traffic, crossing the road can be very safe. Don’t wear headphones. Cross briskly. &c.

But, if we put all the burden on the pedestrian, it’s going to have an impact on walking as an activity. If pedestrians can’t count on drivers to look out for them, people won’t walk. Which means they’ll drive. Yes, pedestrians should always be careful, but drivers really need to make it safe and comfortable for pedestrians to use the shared space.

Two people approach a crosswalk, one in a car, one on foot. We should aspire to a world in which the pedestrian could proceed right into the crosswalk (as is her right) without a care in the world, confident that the driver will be paying attention and perform his obligation to stop and allow her to cross.

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