More Than Civil Negligence

More Than Civil Negligence

When a defendant's criminal negligence causes another person's death, the killing is involuntary manslaughter.¹ The qualifier does the work in that sentence, because criminal negligence requires a substantially greater deviation from the conduct of a reasonable person than the level of negligence that suffices for civil liability.² The common-law definition fills in what the larger departure looks like: a gross deviation from the standard of care a reasonable person would observe, one that creates a high risk of death or serious bodily harm.³ Those two measures, how far the conduct fell below reasonable care and how dangerous it was, are the subject of this section. Whether the defendant had to perceive that danger is a separate question, and the next section takes it up.

Civil and criminal law ask different questions about the same careless act, and that difference explains why the standards diverge. A civil case asks who should bear the cost of an injury, and when a careless person injures an innocent one, the careless person pays, so an ordinary lapse in care is enough. A criminal case asks whether to punish, and because involuntary manslaughter is a felony in most jurisdictions, judges defining the common-law crimes came to demand something extra beyond the negligence that does for tort liability.⁴ If tort negligence were enough, every fatal accident that followed an ordinary mistake would be a homicide, and a conviction would reveal nothing about the defendant beyond the fact that a lapse had ended badly. History shows how the confusion arose. Early cases treated a killing during any unlawful act as involuntary manslaughter, and the word unlawful covered torts as well as crimes, so the idea grew that a tortiously negligent person could be liable for manslaughter.⁵ Virtually all courts have emphatically rejected that idea and require a higher degree of negligence for homicide, although a few states have held that ordinary negligence will do.⁶

The standard has two parts, and each has its own reason. The first, a gross deviation, measures how far the defendant's conduct fell below reasonable care, and the law sets that bar well above the civil one because criminal punishment needs a fault that justifies it. The second, a high risk of death or serious bodily harm, measures how dangerous the conduct was, and it ties the fault to the harm the homicide label describes. Most states require that the defendant have disregarded a very substantial danger of serious bodily harm or death rather than a danger of bodily harm in general. That requirement keeps manslaughter from reaching every fatal accident that follows an ordinary mistake, because culpability is judged by the danger the conduct created. Because the court measures the conduct itself, the fact that a death occurred cannot by itself make carelessness criminal.⁷

The California decision in People v. Rodriguez shows the standard screening out a death that followed only ordinary carelessness. The defendant had left a young child, Carlos, alone in a house that caught fire, and the child died.⁸ The court framed the test as whether a person of ordinary prudence would foresee that the act would cause a high degree of risk of death or great bodily harm, and it added that mere inattention or a mistake in judgment is not criminal, even when it ends in death, unless the quality of the act makes it so.⁹ Nothing in the record showed how the fire started or that the defendant could reasonably have foreseen a probability of fire, so the most that could be said was that the defendant may have been negligent, and the court reversed the judgment because mere negligence cannot support an involuntary manslaughter conviction.¹⁰

Judging how dangerous conduct was means looking at all the circumstances, including the purpose the defendant was pursuing and its social value. A driver who kills a pedestrian while traveling 50 miles per hour in a 30 mile-per-hour residential zone may be grossly negligent if out for a pleasure drive, but not if rushing a critically ill relative to the hospital, because that purpose carries value a reasonable person weighs against the speed. A traditional illustration shows the same sensitivity to circumstances. A roofer who throws a beam into the street of a crowded city and kills a passerby commits manslaughter, while the same act in a remote area, where a death was far less likely, does not.¹¹ The act is identical in both places and what changes is how probable a death is, which is why the departure element and the risk element cannot be separated in practice. The kind of instrument involved matters as well. Courts are quicker to find manslaughter when the defendant used an inherently dangerous object, particularly a firearm, and some courts accept ordinary negligence in handling such objects on the view that ordinary carelessness with something so dangerous amounts to gross carelessness.¹²

The risk required here is high, but it has a ceiling. At common law the level of risk and indifference that makes a killing involuntary manslaughter was lower than what depraved-heart murder requires.¹³ Manslaughter took in conduct that was insufficiently reckless or negligent to be depraved-heart murder but exhibited more culpability than ordinary civil negligence.¹⁴ The ceiling serves a practical purpose, since it lets the law punish dangerously careless killers without labeling them murderers and leaves the murder label for conduct that reveals indifference to life of a different order. A later section of this chapter draws that line in detail.

Courts describe this quantum of fault with several labels, and none of them is precise. One common definition calls criminal negligence gross negligence so extreme that it is punishable as a crime, as when an extremely careless driver kills someone.¹⁵ Jurisdictions use criminal negligence, gross negligence, and culpable negligence for the standard, and about the only certainty the labels share is that they require more than the ordinary negligence sufficient in a civil case.¹⁶ Some statutes use these terms without defining them, which leaves courts to work out the content case by case.¹⁷ The word gross itself gives no clue whether it refers to greater riskiness, to the defendant's awareness of the risk, or to both.¹⁸ Because no label carries a fixed meaning, the sound approach is to reason from the idea behind all of them: ask whether the departure from reasonable care was markedly greater than the civil standard, comparing the risk the defendant created, the purpose and value of the conduct, and the care a reasonable person would have taken. The awareness part of that inquiry is reserved for the next section.

The Adams scenario that returns in full near the end of this chapter supplies a matched pair for steps 2 through 4.

Whether Adams's belief that Cox was dead matters to liability is the awareness question of the next section, and the pair above measures only the departure from reasonable care. Step 1 deserves a caution drawn from the fuller Adams facts. The criminal negligence of the accused must be the proximate cause of the death, so careless conduct that did not produce the death cannot support manslaughter however careless it was.¹⁹ In the fuller scenario Cox dies of exposure, so leaving poisoned candy lying around was not the cause of Cox's death, and any manslaughter theory has to attach to what Adams did when he abandoned the body.