Actually, I don’t have a dishwasher - we wash dishes in the sink. I agree that turning down the hot water is a perfect method for you, but it may not be for me.
OK, whether or not Scylla has a toilet lock, let me go where I’m going with this.
From Prevent Child Drownings In the Home (Consumer Product Safety Commission):
Let me explain how my 2 year old nephew will never drown in the toilet at my brother’s house. First, a child proof doorknob is present on the bathroom door, which is kept shut at all times.
Next, a toilet lock is installed on the toilet, so even if the kid got into the bathroom he’d be kept out of the toilet.
Does this mean that if you don’t have a childproof doorknob and a toilet lock that you are following a chain of incompetence? I don’t know. Certainly listing out how many precautions you use to prevent the baby from being in the bath by herself is moot when she can surprised you by being there herself, and the only things that saved you from a scalded baby were your hot water temperature and being awakened by the sound.
Just about nothing is foolproof. You could be futzing about in the garage and bump the hot water thermostat. The gas could be shut down for some reason while you are at work, and the utility guy could reset the thermostat while he’s lighting the pilot. The thermostat could break and go to full hot. Yes, each of these things are not very likely to happen. But, there is a non-zero chance they will happen, and despite all of your precautions your child could be scalded. I hope this never happens, but asserting its impossibility is hubris.
First rule of shipbuilding: Never claim it is unsinkable.
Scylla you again posted the point w/o it registering. You’ve been willing to unilaterly condemn parents for failing to take what you see are reasonable steps in all situations, yet even you acknowledge that with children you cannot ever know for certain all potentials. For example - until you discover that your child is able to get out of her crib by herself, you felt safe leaving her there, right?
And, in the example I raised in the other thread where my toddler got a piece of candy off a tall shelf (by locating and pushing a chair over to the shelf, climbing up retrieving the candy and pushing the chair back - which explained why I had no idea that he could do this), had he choked on said piece of candy, by virtue of the stance you’ve taken here, I could see you being one of the ones chiming in with “every parent should know about choking hazards and should have locked up any such items” or something of the sort.
that’s my point. In some (not all) of these ‘locked kids in cars’ stories, there were things in place (“I thought my wife had taken the child to the sitter”). I’d agree that the person who left the kid in the car intentionally while they attended a church service was out of line, etc. But that’s not the same as requiring the parents to take the level of precautions that you are spelling out over and over again, and of course, modifying each with each new level of activity of the child.
Just so Scylla doesn’t feel too alone here, let me chime in with my two bits…
(Background: I am a parent of a 19-month-old toddler, so I’m practicing what I preach)
Realistically speaking, no matter how careful a parent is, there is always some chance that a child will be endangered. Part of parenting is to weigh the probability that Something Bad will happen against a Pressing Need, and make a decision accordingly. So even though my son sleeps in a crib and his bedroom door is closed at night, in theory he could wake up at 3:00am, climb out of the crib, drop to the floor, open the bedroom door, wander into the bathroom, lift up the toilet lid, and then drown himself. However, I consider the odds of all this happening as to be so ridiculously low that I’m willing to take this chance, as opposed to tethering him to the bedpost every night.
However, the point that Scylla is making – and one that I agree with – is that there are too many parents out there who are willing to “take the chances” when the probability of danger is sufficiently high to warrant concern. For example, in the situation of kids left in locked cars on hot days (which started this whole bruhaha), I would never place my child in such a situation, because of the well-publicized dangers involved (of the few times when I did leave my child in the car, it’s only when another adult is also there with him, so there’s no risk). And, frankly, I can’t imagine why any parent would endanger their child by leaving them in said car at all; I can’t think of any circumstance where that’s acceptable.
And I believe it’s this level of irresponsibility – where the odds of endangerment are notably greater than a highly-improbable insignificant factor – that has Scylla (and me) so irked. Apologists who say “accidents can happen to anyone” are merely trying to defend the indefensible – trying to excuse the parents who make such dangerous decisions, even though their actions are essentially saying that their personal convenience is worth more than the life of their child.
(Footnotes: I should point out that, when my son wakes up at night, he prefers to sit up in bed and holler for someone instead of quietly exploring on his own; that he does not know how to operate doorknobs; and that, during daylight hours, there’s always someone watching him at all times, no matter how inconvenient it is. Such is the responsibility of parenthood.)
IZZY –
Generally, people do not intend to be negligent. You leave a sponge in a patient, you fiddle with the radio and drift off the road, you fail to stop at a railroad crossing because you don’t see the flashing lights . . . The question is whether the person failed to do something he or she reasonably should be expected to have done – you know, like remembering you have two kids and they’re still out in the car. The question of whether the person “intends” to be negligent is is irrelevent to the questions of whether the person was, in fact, negligent and whether s/he should be held accountable for that negligence.
Oh, let’s. “Freak accident” implies something beyond the control of the participants. It is, almost by definition, an occurrence that is not negligence. You may well say that leaving your kids in the car to die is an “extremely uncommon accident” and I will heartily agree – but the fact that it is extremely uncommon of course undermines your contention that it could happen to anyone – precisely because most people don’t forget they have kids and fail to think about where those kids are. I mean, there is a world of gray between SCYLLA’s position that you must anticipate every danger or you are a bad parent and your position that you can literally forget your kids even exist and still be a good parent – or, at least, not be expected to be accountable for your actions.
She is different because her failing – leaving her kids in the car because she forgot them – is not one that most other parents have. Most people would never, never, ever, ever just forget they had kids. Most people know where their babies are all the time and don’t go take naps without that information. That is not “bad fortune;” that is a serious lapse in judgment – a failing that led directly to tragic consequences. It was not a bolt from the blue, akin to the lottery, it was sheer stupidity on her part. Did she mean to do it? No. But extrapolating from her lack of intent the assertion that it could happen to anyone seems to me to be insupportable.
Correct.
No, it’s not. The question is just as you set it out above. If the action (a) wasn’t reasonable; (b) violated a duty, and © led to damages, then the individual is negligent. The end. The question of whether a person is criminally negligent turns on whether the action was so unreasonable – the violation of duty so egregious – that it equates to an intentional, criminal act. These are two different questions.
But these are two different and totally unrelated questions: 1. Is the incident indicative of generalized negligence in how she raised her kids? Who knows? Did she feed them? Did she usually supervise them? Did she make a practice of leaving them in the car? 2. Is this a “mistake” than might happen to anyone? Heck no! As stated above, most people just don’t forget they have kids. The fact that we might accept that she did, and even excuse it (she was young; she was exhausted; whatever) doesn’t mean that it automatically becomes something that “might happen to anyone.” Besides, as such cases tragically show, a “general negligence” in “philosophy or ability” is never required; you only have to be negligent once, and the consequences may well be the most tragic imaginable – especially where kids are concerned.
The bottom line is that the fact that this happened to a good person, who never intended it, who never in a million years would have dreamed it could have occurred, does not mean it is not still something that was easily, almost automatically preventable, and therefore is not something that reasonably may be construed as happening to anyone. It could only happen to people who make the same enormous mistake. Most people would not.
Not so. You are right that generally people do not consider themselves negligent. But someone who deliberately leaves a child unattended in a car for a long period of time has been deliberately negligent. That person may not consider themselves negligent. But they have willingly and deliberately committed an action that we deem to be negligent. This is to be distinguished from a case in which the negligent action was itself accidental.
OK. Are these actions criminally negligent?
OK, one last try.
Imagine to yourself a purely hypothetical scenario. Imagine that every single person in the world is afflicted with a mental condition that will cause them, on rare occasions to ignore every basic rule of driving and crash at the first possible opportunity. This condition manifests itself once every billion drives, but is equally distributed throughout the population. Despite every person being equal with regards to this condition, obviously only a small percentage of people will actually crash as a result. The odds against it happening to anyone are simply too great. But there are a small percentage of the population who will be the “lucky winners” in that the condition will actually manifest itself in their case with tragic results.
Now. It is true that most people will not crash in this manner. But it is also true that it is equally likely to happen to anyone.
Back to our case. Most people are subject to bizarre mental lapses, particularly under stressful conditions. For any given person, the likelihood that they will happen to have such a mental lapse which specifically involves forgetting their child, and which occurs at a time that the child is in a dangerous situation is extremely small. But it is possible to happen to all or most people. And the fact that it does not is not because there is something about these people which prevented it from happening. Rather it is because the odds are against it happening to anyone including the ones that it actually happened to. Just that sometimes the unlikely occurs.
I hope that’s clear. If not, I give up.
Relevance to us. People are not perfect. As a society, we must tolerate a certain degree of imperfection from people. For this reason, mistakes are acknowledged as mistakes, and are treated differently then non-mistakes. But there is a limit to this. Someone who makes an egregious error - which we consider to go past the normal bounds of standard human imperfection is not exempted based on the “people are not perfect” principle - they may not be perfect, but they are not as imperfect as “that”.
So the question is as follows: is this incident something which could result from normal human imperfection, or is it something which requires an extra-special degree of imperfection? Is it something which any normal person would likely have happen to them if they lived a million years, and the fact that it does not is primarily the result of it being so uncommon for anyone? Or is it something that would not happen to a normal person in a million years, and only happens to that select few who are uniquely incompetent?
Of course I haven’t done that.These two facts are independent.
I do not accept this, as noted above. I understand that you are a lawyer, and who knows if you may be right, but you have to provide some evidence for this strange-seeming assertion. (Also maybe dwell on some examples. If a guy is too tired and drives off the road, is the test whether a reasonable person would drive off the road? etc.)
IZZY –
We must distinguish between the intent to do the act that contributes to negligence, and the intent to do the negligence itself. Tuning the radio in my car is not negligent. Tuning my radio under such circumstances that I drive off the road and hit someone is. The fact that I intentionally tuned my radio does not mean that I was intentionally negligent. Surely you can see that a person who doesn’t consider themselves to be negligent cannot have been deliberately negligent. If I don’t think I’m negligent at all, I certainly cannot be deliberately so. There is a difference between actions that are voluntary and actions that are deliberate. The woman voluntarily (in its strictest sense, meaning not involuntarily) left her kids in the car; she did not deliberately do so. An action that is truly accidental (ie, beyond your control) is probably not negligent, at least insofar as you are concerned. (Example: Someone else rearends you and you are not at fault.)
That depends upon whether, under the circumstances of each case, they rise to a level of recklessness that would justify imposition of criminal charges.
No, IZZY, they’re not. Most people are manifestly NOT subject to “bizarre mental lapses” about things of such fundamental importance as the location of their own offspring. Your entire premise is flawed because it is based upon some hypothetical “tendency” (the “bizarre mental lapse”) that nevertheless only “manifests” itself with great rarity. If it only manifests itself in very few cases, which is the more logical conclusion: That the vast majority of us have the “tendency” but manage to avoid its effects, or that the vast majority of us don’t have it?
No. It. Is. Not. Not unless you add other factors beyond mere exhaustion, youth, or a really bad day. If I’m incapacitated, have had a seizure, or suffer amnesia, I might forget my children; otherwise I would not. And, again, the best evidence for the fact that most people wouldn’t do such a thing is that most people don’t.
Of course there is “something” that prevents it from happening – the absence of the precise negligence or “mental lapse” you’re theorizing.
I understand perfectly what you are saying. I just disagree.
IZZY, mistakes are not treated in a given way based upon whether or not they are truly mistakes (ie, done without malicious intent). They are treated as actions we are each of us responsible for, regardless of actual intent and so long as they are voluntary. If I mistakely break your arm, I am still responsible for the consequences of that action and must pay you the damages arising therefrom. I do not escape accountability just because my action was a “mistake.” You do not have to tolerate my damage-causing actions, either as an individual or a society, just because I didn’t intend the consequences. So there are three levels, not two; not the mistake/non-mistake, but the true accident (not your fault); negligence (unintended result, but brought about by your voluntary actions, so your fault); and criminal conduct (intended result (or recklessness so egregious it amounts to the same), voluntary actions, your fault, subject to societal penalty).
Please leave out the million years if you want to talk about the average person; the average person doesn’t live a million years. And as I have already said, negligence does not require any particularized or “unique” incompentence; it doesn’t require any level of competence or incompetence whatsoever. It merely requires that one time a perrson do something that the average person under similar circumstances would not do. You only have to be negligent once.
Actually, no I don’t. I have no idea which part you consider a “strange” assertion, but if you think I am fabricating the distinction between common or mere negligence and criminal negligence then I suggest you avail yourself of a legal dictionary and look the terms up. If I shoot a gun randomly in the woods, not intending to hit anyone, but I hit someone anyway, I may well be liable to the person I hit under a theory of common negligence. If I shoot the same gun in the same random fashion and with the same lack of intent in the direction of a school where, if I bothered to look, I could see kids playing, and I hit a child, I may well be criminally negligent. As I have already said, whether or not a person is criminally negligent is in almost every case dependent on the facts of that particular case.
“Reasonable care” is the degree of care that the average person would exercise under the same or similar circumstances. So, yes, the test is whether a reasonable person would drive off the road. And, so far as that’s concerned, the default assumption is that reasonable people do not just drive off the road. Just like they don’t just leave their kids forgotten in cars.
I would say that - as compared to the tired driver case - the act that is voluntary is the decision to entrust oneself with the responsibility - whether driving or childcare - though tired. If a person should have known that they were completely incapable of performing this responsibility (whether driving or childcare) then this act is deliberately negligent. If a reasonable person might similarly judge themselves capable of the responsiblity, then it is not. The subsequent act - losing control of the car or forgetting about the child - is not deliberate (or voluntary).
Again, most people have such lapses. There are many ways that these can happen, and many matters to which they can relate. Any given one of them will be a small percentage.
It does not seem like it from the above quotes. But who knows? In any event, I don’t have anything more to add to my earlier comments about this point.
You appear (both here and in earlier comments) to be blending civil liability with criminal liability. Please be clear as to which you are refering to. FTR, I am referring, in all my comments, to criminal liability only.
I find it odd that you would suggest that I think you are fabricating “the distinction between common or mere negligence and criminal negligence”. This distinction underlies this entire thread, and my entire point is to say that this distinction applies in this case. What I am saying is that you appear to be using the “reasonable person” test in two different ways.
Case 1: A cop is involved in some altercation with a suspect. The suspect reaches below his waist. The cop shoots, thinking the suspect is reaching for a gun. Turns out not to be a gun.
Here we apply the “reasonable person” test. Would a reasonable person, involved in the same situation, make the same judgement as the cop, and do the same actions? If the answer is yes, then we judge the cop’s actions to be reasonable - they were guided by what we consider to be an acceptable standard of reason (as indicated by the fact that a reasonable person might act this way). So his actions are not criminal.
Case 2: A cop his cleaning his gun. He has a lot on his mind, and fails to follow some safety procedure or other. The gun goes off, and someone is killed.
In this case it is not appropriate to ask would a “reasonable person” clean his gun without following the procedure. Of course no one would regard this as a reasonable thing to do. The reason the cop gets off is not because we regard his action as being one guided by reason. Rather because the lapse in judgement is not out of the bounds of acceptable human error. (This, as distinguished from a cop, say, juggling three loaded guns).
If you wish to claim that these two things are the same concept, you might show some source for it.
So IOW, the default assumption is that any person who drives off the road is criminally negligent. Somehow I just doubt this.
IZZY –
IZZY, if you voluntarily undertake an action, they you are responsible for the results of that action. You drive your car, you are responsible for the consequences of failing to drive it safely. You raise your kids, you are responsible for failing to keep them safe, whether through act or omission. The fact that you did not deliberately hurt them does not change the fact that you did hurt them and you are responsible for the damage you caused because you could have prevented it. And leaving a child in a car is a voluntary omission – it is not something that is beyond your power or control to do or refrain from doing. Again, there is a difference between “deliberate” and “voluntary.”
No, they do not. That is your cue to say “yes, they do,” despite having not one iota to back up your assertion and despite the fact that it logically makes no sense, in that if it were something that happened to “most people,” you’d obviously see it far more frequently than you do.
“Negligence” alone refers to civil negligence. Criminal negligence is denominated as such, to distinguish it from general (civil) negligence. FTR, it has not been at all clear from your comments that you are speaking of criminal negligence only. It would be far more difficult to prove that the lady (ladies) in question was (were) criminally negligent, when the fact that they were negligent appears to me to be obvious.
I find it odd that you would assert that the distinction underlies the entire thread when this is the first time you have bothered to make it yourself.
As a quibble, actually, no; for cases of professional negligence, you apply the “reasonable professional” test – in this case, the “reasonable cop.”
Wrong. The “reasonable person” standard goes to the question of general negligence. If we conclude that a reasonable person would have acted the same way, not only are the cop’s actions not criminal, they are not negligent at all. Criminal negligence is the Extra Grande Size of negligence – it is more than a failure to act reasonably, it is acting recklessly or with wanton disregard for the probable consequences of one’s actions. If negligence is stepping over the line, criminal negligence is stepping way over the line. If a person is not negligent at all, he or she cannot be criminally negligent. A finding that a reasonable person would have done the same thing amounts to a finding of no negligence, not merely a finding of no criminal negligence.
On the contrary, that is exactly what we do. And if we decide that “of course” no one would act as he did, then he is negligent. Is he criminally so? Depends on the egregiousness of his conduct – how far away from the standard of reasonableness he deviated.
This is absolutely, totally, 100% in error. The cop does not “get off;” he is negligent in the cleaning of his gun and he should be responsible for the consequences. That is because it is not “within the bounds of acceptable human error” to clean your gun in such a way that someone is killed.
A source?? Help me out here – how am I supposed to source your hypotheticals? Look, in the first case the cop is not negligent because he was acting as a reasonable cop would act in the same situation. In the second case he is negligent because he is not acting as a reasonable person (much less cop) would act in the same situation. This is precisely the same “concept” – negligence – but different results based upon the facts as you presented them. I have never stated that civil negligence and criminal negligence are the same thing, though they are the same species of thing, the difference being one of culpability based upon degree. My sources for this include Black’s Law Dictionary; the Restatement (Second) of Torts; three years of law school and six years of practice in tort defense. What is your source for asserting anything to the contrary?
You should doubt it because it’s WRONG. Forgive my growing asperity, but I’ve explained this like four times now. CRIMINAL negligence requires RECKLESSNESS (or something amounting thereto). Driving off the road is probably negligence – plain ol’ negligence – unless you can adequately explain why you did it. “My tire blew out.” “I swerved to avoid a baby carriage.” “I was drunk off my ass.” “I fell asleep.” The first two of these are likely to be considered legitimate reasons to drive off the road (under the reasonable person standard); the second two are not.
That’s all fine. You are responsible. Nonetheless, when you fail in your responsibilities in a non-deliberate manner you have not done the same thing as if you fail in a deliberate manner. It is wrong to pretend that both are the exact same concept just beause in both cases you were responsible.
Logical error - see above.
This is astonishing, especially in light of the fact that you have read both threads. Did not the title of the first thread tip you off? The lengthy discussions about whether this lady should be punished and in what manner? The dearth of discussion about lawsuits? Is this possible? (I would also note that in your very first post on the topic you seemed to understand that the issue was criminal neglect. This business of mixing in civil liability issues seems to have come about more recently).
I could have sworn that I used the term “criminal negligence” at least a half a dozen times. And I’m sure I remember saying that it is beyond obvious that the lady was negligent in this particular instance. What we are discussing, again, is the penalties that are appropriate for this type of neglect.
Don’t start off by sying “wrong” and then have your entire post consist of a legal nitpick about the difference between negligence and recklessness. The point is not about that. The point is that if the guy is found to be not negligent or reckless or whatever, it is because the harmful act itself has been found to be appropriate. This is not the case in an accident.
Exactly, but even if he is not to have not been egregious, the act of not taking the precaution will not have been deemed appropriate. It will have been deemed as something that a normal person might fail at.
If this is untrue, then anyone who fails to follow safety procedures to the letter and causes an accident will be found criminally negligent. This is not the case.
OK, can you provide some examples of people who sat in jail for similar offences.
Again, they are not. In one case the issue is whether the action is apprpriate under the circumstances, in the other the harmful action is clearly not appropriate and the question is whether the failing is egregious or not. Either case may involve a finding of guilt or innocence, but the issues are different.
I am only asserting that conceptually the two are different. It is not inconceivable that these two conceptually different principles might have treated by the same general principle of law. But until I see some source for this I am extremely skeptical.
Unfortunately, your asperity may have to grow even more. What you are saying is absolute nonsense. I know of numerous people who have driven off roads and none of them were ever even put on trial, let alone found criminally negligent. Plus I once saw statistics about this (it once became a major political issue in NY) and almost no one is ever put on trial for killing people in auto accidents, even without excuses like baby carriages.
IZZY –
It seems to me to be obvious that there is a difference between things done intentionally and things done unintentionally – like, I don’t know, intent. NO ONE has “pretended” the two are the same, or are (or should be) treated the same.
??? See above where? Logical error where? I’m happy to respond to your points, but you’ve got to be clearer than this.
I have (apparently erroneously) been concentrating on what you say and, I admit, mostly in this thread. I do not hold myself responsible for what you do not say ("I’m talking about criminal negligence only) or what you for some reason imagine you said but did not. Any generalized discussion of responsibility and accountability – which is what this thread is about – almost necessarily encompasses non-criminal responsibility and accountability.
No, that is not what we are discussing. That’s the other thread. What we are discussing is whether her actions are somehow excusable based upon a lack of intent or based upon the rationalization that “it could happen to anyone.” They are not.
The difference between negligence and recklessness is not a “legal nitpick.” One supports the bringing of criminal charges; the other does not. If you wish to distinguish between negligence and criminal negligence (and rightly so), it would behoove you not to dismiss the distinction as a “nitpick.”
Why isn’t it the case in an accident? You pull into my lane, I swerve to avoid you, I hit a pedestrian. The jury concludes that a reasonable person would have done the same thing. I am not liable, because I was not negligent. That doesn’t mean that hitting the pedestrian was “appropriate;” it clearly was not. But the analysis in no way turns upon the fact that the action was an accident
For the 900th time – THERE IS A DIFFERENCE BETWEEN BEING FOUND NEGLIGENT AND BEING FOUND CRIMINALLY NEGLIGENT!!! YOU WILL NOT BE HELD CRIMINALLY NEGLIGENT UNLESS YOU HAVE ACTED WANTONLY OR RECKLESSLY!!! My God, do you not even read what I post??? Failing to “follow safety procedures to the letter” may constitute negligence, but it will not constitute criminal negligence unless it is reckless or wanton. And – again – the inquiry is not whether a “normal person might fail at” something (that is, that it is within the realm of the possible), but whether the hypothetical reasonable person would fail at it. These are not the same questions.
Okay. Let me explain this for the 901st time. Criminal negligence and negligence are not the same. Criminal negligence requires recklessness. Without it, no crime. You don’t go to jail unless you commit a crime. Having your gun go off accidentally (and YOU specified that it was accidental) is not reckless, and therefore not a crime. So why would there be any examples of similar “offenses”? The hypothetical YOU made up does not reflect a criminal offense in the first place. If you want to discuss criminal conduct alone, then you are going to have to break down and start discussing conduct that is reckless, because otherwise – newsflash – we’re not talking about criminal negligence, we’re talking about plain ol’ negligence. Your assertion to the contrary does not make it so, any more than you could make up a hypothetical about me stealing your car and say we were talking about assault.
This is wrong wrong WRONG. BOTH questions ask whether the acts are reasonable or not. If the “failing” is “egregious,” then that indicates the action is not reasonable. It doesn’t turn the question of reasonableness into two different questions.
Heck, why don’t you make the concept into four “principles”? Why not nine? Or sixty-two? If you cannot see that reasonableness can encompass both the actions done and the reasons for doing them, then there’s nothing more I can to do assist you.
Someone’s spouting absolute nonsense here, but it ain’t me. Once more, with feeling: TRY TO GRASP THE DIFFERENCE BETWEEN NEGLIGENCE AND CRIMINAL NEGLIGENCE. TRY TO GRASP THE CONCEPT THAT WITHOUT RECKLESSNESS WE ARE NOT TALKING ABOUT THE LATTER. Therefore, when you are merely talking about driving off the road, you are not necessarily talking about criminal conduct! It is SIMPLE NEGLIGENCE. It is probably not CRIMINAL NEGLIGENCE. If you want to talk about criminal negligence, then start talking about recklessness – the cop who fires his gun into a crowd (regardless of intent to hit anyone); the drunk who intentionally drives down the road with his lights off. Behavior that is less egregious than that – that is not reckless – is not criminal. It may well still be negligence, but it will not be criminal negligence.
You cannot have this discussion both ways. If you want to talk about criminal negligence alone, the ratchet up your examples and address the necessity of including reckless behavior. If you don’t want to do so but want to discuss milder conduct — accidents – then stop saying you’re only talking about criminal negligence. Because you are NOT.
Really. Well, let’s just take a look here, using my jurisdiction (Washington State) so that the research for me is free:
State v. Donahue, 18 P.3d (2001) – man driving drunk strikes oncoming car and kills other driver. Convicted of vehicular homicide; sent to prison.
State v. Avery, 13 P.3d 226 (2000) – man driving drunk strikes and kills adult pedestrian and flees from scene. Convicted of vehicular homicide; sent to prison.
State v. Souther, 998 P.2d 350 – man driving drunk turns left into motorcyclist and kills him. Convicted of vehicluar homicide; sent to prison.
State v. Vreen, 994 P.2d 905 – man driving extremely fast with carload of teenagers misses a curve, rolls the car, and kills three passengers. Convicted of vehicular homicide; sent to prison.
That’s just in the last year; I assure you there’s lots more. And I guarantee there’s tons of the same from New York. Note that in every case the driver did not intend the result – did not intend to kill someone – but nevertheless did through negligent behavior. Note additionally that an element of recklessness (driving drunk; excessive speed) exists in each case to justify the pressing of criminal charges.
Does that clear things up?
OK, well in that case, you can cease posting things like that which I cited (“The fact that you did not deliberately hurt them does not change the fact that you did hurt them and you are responsible for the damage you caused because you could have prevented it” etc.)
See my earlier comments about statistics. As I mentioned before, I don’t want to go through this again, but I may continue pointing out that your logic in this is faulty.
Good idea - always remember the context of the discussion. It helps you understand things that people did not feel they have to speak out because it was obvious in context. See also the numerous times in this thread that I’ve mentioned criminal negligence - including your quotes of these words (including your very first post directed to me). Frankly I find this incredible.
Not me. I’ve said nothing of the sort.
Of course it is a nitpick. It makes no difference whether the correct term to use is reckless or negligent. This is not a trial here - we don’t need to use legally precise terms.
I would be inclined to think this case is similar to an accident. Is the guy allowed to swerve into the pedestrian if he knew the guy was there? If not, then he was accidental in not seeing this.
Yeah I read your post. And I think you are too hung up on technical jargon. Should this debate continue, I will try to use reckless for criminally negligent. But there’s no point focusing on it.
Good, well then stop talking about negligence already. It only adds to the confusion.
Exactly. And the reason I brought this up is because forgetting about your child is also accidental.
All I am trying to do is to find a case that is similar to the one at hand, and look at them both together, from the perspective of criminal negligence.
What assertion?
We are going in circles. You say it is wrong wrong wrong, I say it is right right right. Looks like a draw.
Try to grasp the concept of discussing an issue without getting bogged down in jargon. I am comparing Case A to Case B. I don’t care what label you apply to Case A or Case B, as long as you deal forthrightly with the comparison.
Again, i want to talk about examples that are comparable to the case at hand. Don’t try to confuse the issue by giving them different labels.
In all the cases you cite the intial conduct was egregiously negligent (or reckless, as you may put it). The decision to drive drunk or speed excessively is what put these guys away, not the actual swerving off the road. If we were to dwell on the action of swerving off the road, it would never be found to be reasonable. In the case before us, the comparable decision would be the decision to take responsibility in a tired state. The actual forgetting about the child would be analogous to the swerve off the road, which is not the issue.
IOW, Jodi, if you want to assert that the baby case involved recklessness OK, we can compare it to other cases. But if you are not saying that, but only quibbling about the term reckless vs. negligent, then there’s nothing to discuss from my perspective.
IZZY –
Originally posted by Jodi
I point out that no one has said that there is no difference between intentional acts and unintentional acts. Bafflingly, you reply:
Surely you can see that the very sentence you quoted is talking about responsibility, not intent, and clearly states that you may be held responsible for something even if you did not do it deliberately (intentionally). How you can construe this as saying that intentional and unintentional acts are the same (or are treated the same) is beyond me. It merely says – and only says – that even if your acts are unintentional, you may still be held responsible for them. Not to the same degree as if you had acted intentionally, perhaps, and probably not criminally responsible, but responsible just the same.
I don’t have the first idea what you’re talking about, but I’ll be damned if I’ll attempt to drag it out of you.
Ah. So now I’m supposed to read your mind – to “understand things [you] did not feel [you] had to speak out” because you felt they were obvious. Trust me, they’re not obvious. As the above exchange shows (“See above.” “What? Where?” “See my earlier comments.” “What?”), your point (if in fact you have one) is not as self-evident as you seem to appear, nor is your posting style the paragon of obviousness you think it is. As I have already stated, there is a difference between negligence and criminal negligence, and when you use the term “negligence,” I may reasonably assume you are talking about non-criminal negligence (because if you had been talking about criminal, you would have said so). Therefore, the fact that you mentioned criminal negligence “several times” means nothing; I have mentioned it several times as well. That doesn’t mean that every time I say “negligence” I mean “criminal negligence;” to the contrary, I do not, because they are not the same.
I said “What we are discussing is whether her actions are somehow excusable based upon a lack of intent or based upon the rationalization that ‘it could happen to anyone’,” to which you amazingly reply:
You most certainly did. How can I expect you to read, much less comprehend my posts, if you don’t bother to read your own? You said:
You have very obviously been arguing that the explanation for the incident is the latter, not the former. Or, having yourself framed the question thusly, would you now like to change your position and argue in favor of the former?
I truly begin to believe you cannot read. If YOU want to talk about criminal negligence – as you have said you do – that we MUST talk about reckless behavior. Why? Because that is what criminal negligence is. That’s what the term means. That is how it is different from garden-variety negligence. If you are not talking about recklessness (of the equivalent of egregious conduct), then you are NOT talking about criminal negligence. I swear, this is like trying to have a conversation wiith someone who wants to talk about algebra but doesn’t want to talk about math.
You have totally missed the point. It doesn’t matter if the specific actions were accidental or not. What if he did see the guy, but thought he could miss him, or thought that hitting him was preferable to killing a carload of people? Are his actions okay then? It depends on whether his actions were reasonable, and the question of whether those actions were accidental (ie, unintentional) is largely irrelevant.
At this point, I don’t think I could possibly add to your confusion. Listen, it breaks down like this: You are arguing that the woman’s actions are understandable – something that could happen to anyone. (Though now you want to deny this is your argument, it very obviously was.) It is therefore, by implication, your position that her actions were not reckless. Therefore, since we cannot have criminal negligence without recklessness (or the eqivalent in wantonness), it is YOUR argument that she was not criminally negligent. What does that leave us to talk about? Plain old negligence. If you wish to consider whether she was criminally negligent, then you need to address whether her actions were reckless – because that’s what criminally negligent means.
Why? Why is the total failure to forget you have a child not reckless, justifying the imposition of criminal charges? “Reckless” is “with wanton disregard for human life.” How is forgetting your children, without excuse and under such circumstances that they are killed, not wanton disregard for their lives? Note that this question does not turn on whether the action was “accidental;” it doesn’t matter if it was accidental.
[quote]
All I am trying to do is to find a case that is similar to the one at hand, and look at them both together, from the perspective of criminal negligence.
Oh, right. Just like if I said the sky was blue and you said it was green, we could argue it between us, you could refuse to accede that your position is untenable and then say “looks like a draw.”
YOU are not dealing forthrightly in the comparison. You are trying to compare apples and oranges – intentional conduct and unintentional conduct, reckless unintentional conduct and non-reckless unintentional conduct – and say they are all the same. They are not. Recognizing that they are dealt with differently, and that good reasons exist for dealing with them differently, is not “getting bogged down in jargon.”
This is precisely the problem. You are NOT talking about examples comparable to the case at hand; you are using examples that are totally different, for the reasons just given above. And when I point out that they are NOT, in fact, comparable, you say I am “confusing the issue” by “giving them different labels.” Of course I’m giving them different labels. They are NOT THE SAME THING.
I am afraid I am going to have to insist that you take responsibility for the things you post and the questions you ask. You specifically stated “Plus I once saw statistics about this (it once became a major political issue in NY) and almost no one is ever put on trial for killing people in auto accidents, even without excuses like baby carriages.” THAT is the assertion I was rebutting. Not some other assertion you’d like to put forth now analogizing drunk driving with falling asleep at the wheel, nor the earlier assertion retrofitted to contain qualifiers it obviously did not. I will continue to respond to what you actually posted, not what you think you posted or wish you posted, because I have no other choice. Your expectation to the contrary, I cannot read your mind.
OK, here’s how I see this sequence:
Izzy: You cannot compare someone who intends to be negligent to someone who does not.
Jodi: No one ever intends to be negligent
Izzy: Of course they do. They just don’t consider themselves negligent.
Jodi: If the person is only deliberate regarding the act that contributes to the negligence (as opposed to the harmful act itself), then they are not being deliberately negligent, as they don’t consider this to be negligence.
Izzy: No, if that deliberate act is the cause of the harmful act, then it is deliberate negligence.
Jodi: Yeah, but you’re responsible in any event, so the distinction between deliberate and indeliberate is not relevant.
Izzy: Yes it is, we can still differentiate between the two, and you cannot show one from the other.
Jodi: Everyone knows there is a difference between the two.
Izzy: OK, so stop implying otherwise.
Jodi: I never did.
Seems to me that you did.
I don’t know. My words that trigggered this exchange were
To which your first words to me were
The rest of our exchange flowed from there. Was it unreasonable of me to expect that it was obvious that we were talking about criminal negligence? Was I asking you to read my mind? I don’t think so.
Not at all. You said “what we are discussing” etc. in specific contrast to criminal neglect, which is what you claim we are not discussing. This is incorrect, at least in my case. My words about it being an isolated mistake are in the context of criminal neglect. I don’t think causing a child’s death is “excusable”. But I do think the fact that it is “an isolated mistake such that might happen to anyone”, while not excusing it, would relieve criminal neglect. By contrast, if it was “indicative of a general negligence in this woman’s childcaring philosophy or ability”, (particularly the former) then it would not.
What you have to understand is that there are non-lawyers out there. These people tend to use non-precise legal terminology. Therefore you cannot interpret these people’s language as if they were using precise terminology.
I don’t mind talking about recklessness. But you should not interpret my failure to introduce this term previously as indicative of anything other than imprecise legal terminology.
If he thought he could miss the guy then his actual hitting him was indeed an accident. If he thought that hitting him was indeed preferable to killing a carload of people, it would depend on whether this is indeed the case. I would imagine that it is, and that he is not criminally negligent because he has indeed doen the right thing by hitting the guy. (If not, my understading is that ignorance of the law is not an excuse, and I would imagine that he is guilty. Are you actually asserting that someone who commits an illegal act can get off because a reasonable person might make this mistake?)
I am not trying to back away from anything, as noted above. What I meant by the remark you quoted is that now that you have clarified that reckless is the term to be used for criminal negligence, please at least accept that this is the issue we are discussing, and stop continuing to drag in other (non-criminal) issue based on your (bizzare) claim that my prior terminolgy lead you to think otherwise.
She did not forget that she had a child. (Why would you try to imply this?) She falsely thought she had dropped the child off at the sitter’s. Your assertion that it does not matter if it was accidental is wrong. It is only if the accident is something that a normal person would never have had happen to them that she can be considered to be criminally liable.
No. I believe that this person forgetting about her child is analogous to a person driving while too tired and thus causing an accident. Or a surgeon failing to follow proper procedure (in a non-egeregious manner) and harming the patient. Or a pharmacist accidently giving someone the wrong prescription. And I think the penalties that this woman receives should be consistent with those other examples.
There are others who disagree with this position, and feel that the negligence displayed in this instance is worse then the other examples. Fine. That is a substantive dispute. But to try to address the issue by dwelling on what precise terminology is to be applied, or worse, to nitpick my language and interpret my words in that context, does not add anything.
No I think they examples are comparable. If you think they are not, feel free to disagree. But to argue, as you were doing, that the term negligence implies non-criminal negligence, while for criminal negligence the term recklessless must be used, is not substantive.
You are correct in this. I was thinking of cases of non-egregious driving, which was comparable to the case at hand. I should have specified this. My apologies.