Key Takeaways

- Safety is a function of the level of risk that the population as a whole is willing to accept for a particular activity, not of the adherence to a particular standard or of the elimination of all risk.

- Negligent action or behavior must be evaluated in light of the normal behavior of the subject population.

- Driving normally cannot be negligent, but doing so does not absolve a driver of consequences that may result from noncompliance with applicable rules.

In our increasingly litigious society, it seems to be increasingly the case that, in the event of an incident, the argument is made in a court of law that noncompliance with laws, rules or regulations is prima facie evidence that the actions of the individual leading up to the event were inherently unsafe. It is not infrequently argued that such noncompliance rises to the level of negligence and, thus, warrants an increased level of penalty or punishment for such noncompliance.

To understand when such arguments may or may not be valid, it is necessary to first understand the meanings of the terms safety and negligence as they relate to individual behavior, as well as to have a perspective on whether the rules represent a true consensus on the part of the population about whether those rules are either appropriate or valid.

The National Safety Council’s (NSC, 2015) Accident Prevention Manual defines the word safe to mean “a condition of relative freedom from danger.” The same source defines safety as “The control of recognized hazards to attain an acceptable [emphasis added] level of risk.” ANSI B11.0-2020 defines the term acceptable risk as “a risk level achieved after risk reduction measures have been applied. It is a risk level that is accepted for a given task (hazardous situation) or hazard” (p. 18).

It is clear from both definitions that the degree of risk that is considered safe is based on the acceptability of the risk involved, not that a product, task or activity is risk free. Safety is thus a relative, not an absolute, concept. In short, safety involves a risk level that the affected population generally considers to be acceptable for any given task or situation at the point in time that it occurs. If that population considers an action or behavior acceptably safe before an incident or event, one cannot in light of hindsight categorize that same action as having been unsafe simply because the outcome was not anticipated or desired or because the action did not comply with published guidance.

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