juuuuuuuust to set the record straight, this wasn’t really my position. i initially claimed that i would have made a different decision than the pilot (because i’m such a selfless do gooder), and would’ve steered clear of the highway for my own ethical reasons. i then quickly acknowledged that the pilot was flying for a company and the only way she herself could be found liable is if she violated some standard procedures and only if that violation was found to be a significant cause of the driver’s death. other than that, unless the insurance company could prove no fault, the company would be financially liable for damages.
p.s. i’m not saying this position held up, but that’s it in a nutshell.
Negligence is the lowest kind of mens rea, but it’s a kind of mens rea nevertheless. You’re right, though, that a negligence-based crime would be a possible charge here.
It was used in the original thread to illustrate the point Spiny Norman and I had been making about the law generally recognizing a limited privilege to put others’ lives in danger. I’m sorry if anyone got the impression it would be any kind of binding authority in GA, even though I’m morally certain that Georgia has some equivalent to section 296 (quoted above).
As for section 520A … well damn if somebody didn’t come up with some legal authority! Hope you to post that over on the GD thread where it’ll do some good! It’s really surprising to me that the Restatement would have adopted a strict liability standard for ground damage from aircraft, even as late as the 1960s. The only semi-recent cite I can find for section 520A is Crosby v. Cox Aircraft Co. of Washington, 746 P.2d 1198 (Wash. 1987), which rejects the rule and adopts a negligence standard. As far as I can tell (with limited research sources), Georgia courts have not ruled on the issue. Given that we no longer view flying as unreasonably dangerous, I’m doubtful that 520A would have much force these days.
The classic example of res ipsa loquitur is the barrel of flour falling out of a store window and onto the plaintiff’s head. Res ipsa is used to raise an inference of negligence when there is no evidence of how an accident occurred. It therefore does not seem very appropriate to be used against this pilot, since we already know what caused her to land the airplane on the highway: she landed it there intentionally in an emergency situation caused by engine failure. Given all the facts, a jury would have more than enough evidence to determine negligence in this case without ever having to resort to res ipsa.
As for “negligence = duty, breach, causation & damages,” I belatedly noticed that the second definition in Black’s has this exact same formulation. I don’t buy it, myself, since it’s perfectly possible to be negligent without ever causing damages at all, but in light of the authority, I withdraw my earlier statements on the matter.
And Jodi, no judge in the country would demand a citation every time a lawyer mentions “negligence.” Even in the law, there are concepts so basic that they pass uncited as common knowledge. I have no problem providing a citation if asked. But what am I supposed to do when somebody belatedly pops into a thread and voices discontent with the general paucity of cites, but doesn’t even bother to say what s/he wants authority for? That’s chickenshit and unproductive, and I obviously didn’t appreciate it.
What? Negligence is not “a kind of mens rea.” Do you mean that negligence requires a mens rea? Because that at least makes sense, though it’s wrong as well, unless I have totally misunderstood you. Negligence does not require any particularized intent; certainly it does not require an intent to do the thing later claimed to be negligence.
I realize this. That does not change the fact, however, that Texas law illuminates nothing regarding how the matter might be handled in Georgia. It also fails to illuminate what the law “generally recognizes,” because a statutory recognition in one state cannot be presumed to translate to a statutory recognition in any other state. Again, if you had cited to the common law principle, as opposed to the statute of a particular jurisdiction, you would hear no objection from me. You could even more reasonably cite to the Federal statutory law, since it at least applies throughout the U.S. at the Federal level.
Yes, I know this, since it’s cited right there in the Restatement annotations, which is where I assume you found it. I’m glad you went to double-check me though; believe no representation without confirmation!
I said Georgia courts had not ruled on this. My point was that you were not entirely justified in relying on general negligence principles, and doing so so confidently, when you were apparently unaware of the possible application of strict liability and res ipsa loquitir.
Is it really? Do tell. I wonder what you read in my post that indicated I needed a refresher course on what res ipsa loquitir is. Or perhaps this is directed at others who might be reading along?
Actually, that’s overly simplistic. As I have said, it can be used to shift the burden of proof, to place on the defendant the responsibility of proving that she was not negligent. You seem to believe that she could easily do this by pointing to engine problems, and possibly she could, but it is still a legal theory that would have to be taken into account and that your discussion overlooked.
The burden of proving that negligence, however, might well fall to the defendants and not to the plaintiff due to res ipsa.
Thanks, but I wonder why you think that legal definitions are something you can or cannot “buy.” Doesn’t that devolve down to “it’s not because I say it’s not”? That argument comes up a lot around here in regards to constitutonal issues (“I don’t care what the Supreme Court says, it’s not constitutional because I say it’s not.”) but it’s one that I don’t buy. And, again, in my jurisdiction it is NOT “perfectly possible to be negigent wihtout ever causing damages,” because damages are by definition an element of negligence.
You are not talking to or in front of judges; you are talking in the main to a class of lay-people. And when you jump to a discussion of general negligence principles withouth stopping to determine whether they are exclusively applicable as a matter of law, then you cannot be surprised if you are asked for a cite. And you’re a lawyer: If someone wants a cite for general principles of negligence, cough one up; there are thousands of them and you ought to be able to come up with a dozen without turning a hair.
Well, I guess that depends on who your audience is. I have never briefed the issue of negligence without those citations, because I think phrases like “it is well-known that . . .” and “as the Court surely knows . . .” indicate laziness and possible weakness of argument. In discussions with other lawyers, I don’t demand citation on issues we both know about, but you can hardly assume that knowledge is universal on a message board. In casual conversation, it generally doesn’t come up – but if it did and I was asked for a cite, I would provide it.
Listen, I’m not wading into this to take sides. Your issues with DINSDALE are none of my concern. I simply pointed out that you hardly had reason to object to someone saying you hadn’t used many cites, because you hadn’t. You might say that citation wasn’t necessary, or citation wasn’t asked for, but you can’t say your argument was backed up by citation, because it just wasn’t.
And I must say that you did come across in that GD thread as a bit of an authority on how the case would shake out, when you apparently hadn’t done much research on the issue of aviation crashes and negligence prior to your declarations of law, or you surely would have found the Restatement section, if not the ALR articles. I’m not trying to spank you, but I will say that in my experience it is very dangerous to espouse the law if you haven’t done at least a modicum of research on the exact issue under discussion. It’s unwise even on a message board, and in the real world it could be malpractice. But you know this, right?
I don’t really feel like getting into the tone of my posts in the GD thread, Jodi, so I hope you’ll forgive me if I don’t follow up on that part of your post. Suffice it to say that I was in a pissy mood yesterday afternoon and that we all could have been more polite.
But I will respond to a few substantive things in your post. First off, negligence most definitely is one kind of mens rea, according to everything I’ve ever known about criminal law. For instance, look at Model Penal Code section 2.02, which provides that “a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.” Here’s the MPC definition of “Negligently”:
So our pilot could conceivably be brought up on negligence-based criminal charges, but I’m far from certain that a reasonable person in her circumstances would have acted differently.
As for res ipsa loquitur, I went into detail for the sake of anyone else who’s still reading, not for yours. (If anyone wants to know about flying flour barrels, look for the 1863 English case of Byrne v. Boadle.) Please note that I didn’t dispute your burden-shifting point, although res ipsa only shifts the burden of proof in certain states, notably California. But I am convinced that our hypothetical plaintiff would be very unlikely to get a res ipsa jury instruction against the pilot (mechanic would be more likely) because we already know that the reason for the crash landing was engine failure. The engine is certainly not within the pilot’s “exclusive control,” and for res ipsal loquitur to apply, the instrumentality that caused the accident must have been in the exlcusive control of the defendant.
I admit I don’t know what it takes to get a res ipsa loquitur instruction, but my impression is that it is quite rare, and that you don’t get it just because you ask for it. If anyone cares, I’ll look it up when I get the chance tomorrow.
So would I. I wasn’t asked. All I got was a general complaint.
Sorry, MINTY, but it just ain’t. Mens rea, from your good friend and mine, Black’s, is defined as “an element of criminal responsibility; a guilty mind; a guilty or wrongful purpose; a criminal intent. Guilty knowledge and willfulness.” Now, I discount the first of these as useless and assume you will too, since we can agree that any thing can be “an element of criminal responsibility,” depending on what the crime is. But leaving out that mushiness, it’s clear that mens rea refers to the necessary mind-set or intent to do a particular crime. Negligence does not turn on intent.
That does not serve to make negligence a type of mens rea. “Purposely and knowingly are;” “recklessly” probably is (as in “reckless disregard”), but negligently is not.
I accept this, but it is again irrelevant to mens rea. It speaks of things the person “should be aware of” (but is not – lack of mind-set or intent), or unjustifiably “failed to perceive” (failure of perception – lack of mind-set or intent). By definition, a “gross deviation from the standard of care” does not require any particular intent – and, when you think about it, it is almost impossible to intend to act negligently. (If your conduct is intentional, then it isn’t negligent.)
It is true that people who generally look for mens rea (i.e., all the criminal lawyers I know) will substitute negligence (lack of intent) for mens rea (criminal intent) on the rare occasions criminal negligence comes up, but that does not transform negligence into a species of mens rea.
My Black’s defines mens rea as “The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime; criminal intent or recklessnes.” That’s from the 1996 Pocket Edition. So if we go with Mr. Garner again, recklessly at least is in there, in addition to purposely and knowingly.
As a matter of logic, I get your point that “negligently” isn’t so much a state of mind as it is an unjustified absence of state of mind. (“Golly, officer, was I really driving 100mph through a school zone? I had no idea.”)
But that definition of mens rea says you gotta have one as a prerequisite for a criminal conviction. And there certainly are crimes for which you can be convicted based on acting negligently. So does that mean persons being convicted of “negligent homicide,” for instance, are being convicted without the prosecustion having to prove mens rea at all? Maybe. Is “negligently” a substitute for mens rea? Maybe.
Personally, I just think the definition of mens rea is a little bit broader than that. In a negligence crime, the criminal is being punished for ignorance, rather than knowledge. And ignorance is most certainly a state of mind.
No, it doesn’t. It says that mens rea is the state of mind to be proven to prove that a defendant committed a (meaning some, as opposed to all) crime. Implicit in this is that you are dealing with a crime for which mens rea is an element. It doesn’t say – and does not mean – that you must prove mens rea for every crime and as a prerequisite to any criminal conviction. In other words, it should be read as “the state of mind that the prosecution must prove that a defendant had when committing a [particular] crime [in question],” not as “the state of mind that the prosecution must prove that a defendant had when committing [any] crime.” How do I know this? Because certain crimes – notably criminal negligence – do not require a particular mens rea. Your argument only makes sense if you are going to argue that all crime requires mens rea (i.e., particularized intent). But we both know that ain’t so.
But you’re right: my point is that negligence (connotating a lack of particularized intent) by definition cannot be a form of mens rea (particularized intent).
God, I love this board. I feel like dropping my old crim law prof a message and telling him to revise his mens rea materials, 'cause “negligence = mens rea” is right there in my class notes. But on second thought, never bite the hand that gives you the highest grade in the class.
And it was very nice of you not to even mention strict liability crimes. :o
I’m not a lawyer, but I figured I’d quote my copy of Barron’s Dictionary of Legal Terms.
So the mens rea = negligence thing doesn’t seem unique to minty green. I ain’t touching the debate about whether it’s correct with a ten foot pole, though. And why is it that reading jodi*'s posts always makes me want to be a lawyer? Either that or propose to her.
It’s really surprising to me that the Restatement would have adopted a strict liability standard for ground damage from aircraft, even as late as the 1960s. The only semi-recent cite I can find for section 520A is Crosby v. Cox Aircraft Co. of Washington, 746 P.2d 1198 (Wash. 1987), which rejects the rule and adopts a negligence standard. As far as I can tell (with limited research sources), Georgia courts have not ruled on the issue. Given that we no longer view flying as unreasonably dangerous, I’m doubtful that 520A would have much force these days.
