Safety for All the People: The Constitutional Right of Safety

by Raphael Metzger

As the bus left the bus stop, it spewed out diesel exhaust engulfing commuters in a thick black cloud of choking soot.  One elderly woman cursed the bus and shouted for all to hear that the MTA was violating her constitutional rights.  Another crackpot claiming her constitutional rights were violated?  Perhaps not.

As we go about ordinary daily life, we are subjected to constant hazards to our safety.  Motor vehicle accidents, defective products, and pollution all play a role.  Last month an important study published in the Archives of Internal Medicine reported that 6,500 Americans died and 13.2 million were hurt from work-related causes in 1992, at a total cost of $155 billion.

Every day personal injury lawsuits are filed.  Some succeed and some do not.  Plaintiffs’ attorneys assert the usual tort claims such as negligence and strict liability.  However, personal injury attorneys do not assert constitutional claims on behalf of their clients.  This may be a mistake, especially in those cases where traditional tort theories are not viable due to various statutory or common law impediments.

Although it is not generally known -- even to specialists in personal injury litigation -- we all have a constitutional right to safety.  This right is not buried in some obscure constitutional amendment; it is found in Article I, Section 1 of the California Constitution.  This section of the State Constitution declares:

All people are by nature free and independent and have inalienable rights.  Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

Although the right to pursue and obtain safety has been embodied in the California Constitution since its adoption, there are no cases interpreting this constitutional right.

Most litigation under Article I, Section 1 of the California Constitution has focused on the nature and scope of our constitutional right of privacy.  However, the right of privacy was first added to the California Constitution in 1972, unlike the right of safety which has apparently been an inalienable right of the people of this state for more than 100 years.

Recent privacy cases do, however, provide some indication of the potential nature and scope of the constitutional right of safety.  Most significantly, it has been held that the state constitutional right of privacy applies to private, as well as to state, action.  Hill v. National Collegiate Athletic Assn 7 Cal.4th 1 (1994).   Since a claim for violation of the constitutional right to pursue and obtain safety is a claim for infringement of an inalienable right (i.e., a fundamental right like the right of privacy), such a claim may well lie against anyone who interferes with or infringes a person’s safety. 

What are the elements of a claim for violation of the constitutional right of safety?  Since there are no reported decisions, no one knows.  However, in Hill, the Supreme Court established three elements of a cause of action for invasion of the constitutional right to privacy: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy on the plaintiff’s part; and (3) an invasion of the privacy interest that is “serious” rather than “slight or trivial.”  Hill, 7 Cal.4th at 35-37.  Logically, the same elements may apply for a claim for infringement of the constitutional right of safety.

Under this standard, would the woman engulfed in the cloud of diesel exhaust have a claim against the MTA for invasion of her constitutional right to pursue and obtain safety?

Does she have a legally protected safety interest against being exposed to diesel exhaust?  Diesel exhaust is very toxic.  In epidemiologic studies, diesel exhaust has been causally related to increased human cancer, respiratory disease, heart disease, and mortality.  Diesel exhaust has also been deemed a carcinogen by the state.  Thus, she may have a legally protected safety interest.

Does she have a reasonable expectation of safety?  For the same reasons that she may have a legally protected interest, she may also have a reasonable expectation of safety against exposure to diesel exhaust.  Additionally, a person has a common law right not to be battered, assaulted, or subjected to nuisance.  If exposure to diesel exhaust resulted in a harmful or offensive contact with her person, she may have been battered.

Lastly, was the invasion of her right to safety “serious” rather than “slight or trivial.”  In a risk assessment published in 1994, the Office of Environmental Health Hazard Assessment of the California Environmental Protection Agency determined that exposure to diesel exhaust at a concentration of 3 x 10-4 micrograms per cubic meter of air was hazardous to human health.  This is a tiny amount of diesel exhaust – many times less than the amount of diesel exhaust in the ambient air we breathe daily and much less than the concentration in the diesel exhaust cloud the woman was exposed to.  The invasion of the woman’s right to safety may therefore be “serious,” rather than “slight or trivial.”

Why bother with a novel constitutional claim in everyday tort litigation?  There may be some strong advantages to asserting a violation of the constitutional right of safety.  First, it is doubtful whether statutory or common law defenses would be viable against a constitutional claim, especially one asserting an inalienable right.  Second, the constitutional right of safety may provide for a claim which is not cognizable under traditional tort theories of liability.  Third, attorney’s fees are recoverable under Code of Civil Procedure § 1021.5 for enforcement of constitutional rights, Press v Lucky Stores, Inc., 34 Cal.3d 311 (1983), and may therefore be recoverable for enforcement of the constitutional right of safety.

The constitutional right to pursue and obtain safety may also provide a basis for asserting claims on behalf of victims of crime.

Lastly, the constitutional right to pursue and obtain safety may provide a constitutional basis for invalidating secrecy agreements in products liability cases, where manufacturers insist on sealing the case file as part of a settlement, so that the hazards of the product do not become known to the public.

The constitutional right of Californians to pursue and obtain safety is an untapped source of riches which plaintiffs’ attorneys should exploit on behalf of their clients and the public.

Safety for All the People!

This article was published in the Los Angeles Daily Journal on September 2, 1997 under the title “Secure Future: Why Isnt’ the Right of Safety a Claim in Tort Litigation?