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Farmer’s Market Liability: When Law Meets the Improbable:

This column has struggled previously with the July 2003 Farmers’ Market tragedy. It’s a struggle because the impact on our community was like that from some enormous blunt instrument; a blow that left none of us untouched.  The nature of the event makes trying to pull “sense” or some lesson from what happened impossible.  Each and every dimension of it is simultaneously horrific and unbelievable. 

The specifics of that event are now proceeding towards civil lawsuits.  Liability is being sought in the details of an improbable circumstance, a bizarre moment that no one could have predicted in the absence of a precedent; an event so terrible that we still have difficulty grasping its reality. 

But the process of grasping and defining that reality in terms of fault and with dollar amounts has begun.  Because, as a society, that’s what we do.  With the certain knowledge that some things cannot be made whole again, we still seek resolution by means of something that has the practical features of size and depth.  In other words, money.

What money cannot do is obvious, but worth noting.  It can’t bring back.  It can’t erase that day in human memory.  It can never heal the pain of loss.  And I’m not certain it can, in any definitive way, prevent the improbable.

It was beyond unlikely that a car would drive wildly, uncontrolled, into a crowd of people at the Farmers’ Market.  And as we looked to punish and correct, we sensed more deeply our inability to predict and prevent the improbable.  Could we inflict more heartache on George Russell Weller than he already felt?  Could we assign at least a level of blame in examining the barriers and signs and… walls?   Should there be walls everywhere?

We’ve accepted into the language terms such as “childproof” knowing full well that, ultimately, no such thing is possible for every given location or situation a child might be in.  Last week the venerable Consumer Reports retracted an earlier story that had left parents worried that infant safety seats would fail “disastrously” in crashes at speeds as low as 35 miles per hour.  Then there was news of more pilots in commercial airliners having handguns.  You may not even want to consider that there are guns on board an airplane carrying you and your family.  But in what feels like an ever more dangerous world, we now must deal not only with the day-to-day safety of car seats but also with the improbable possibility of a shoot-out in a flying aircraft.

Weller did make that tragic turn.  The improbable did take lives on that day in our city.  We haven’t stopped having public gatherings, nor have we successfully eliminated each and every opportunity for an improbable event to again break our hearts.  Our most recent efforts to contain the improbable include confiscating water and shampoo bottles at the airport.  As we surrender those innocuous fluids we experience, for a moment anyhow, a deep sense of how impossible it all is: We are never going to “everything-proof” the world.

Yet I have the feeling that, in some ways, our city is going to stand trial for having failed to do just that.  The law will allow a pursuit of the City of Santa Monica that in no small way is occurring because the pockets of others are not as deep.  It is the way of things in this process, and quite natural.  The Farmers’ Market nightmare wasn’t any less tragic or improbable to the city than it was to any of the rest of us.  Still, we will apply our rational laws to an effort to find the right inside a circumstance of chance.

We’ve expanded the parameters of responsibility to the point that such things as amusement parks and public swimming pools may soon become impossible.  Maybe that’s to be expected.  Maybe we are reasonably removing foreseeable dangers, using our increasing collective knowledge of human behavior to engineer the hazard and risk out of our lives.  But as we continue with that we’ll have to accept that our laws can only be configured to assist us with heartbreak, not mend it.

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