Advocacy & Safety - What constitutes "gross negligence"?

http://www.idahostatesman.com/newsupdates/story/812247.html

Idaho code says the difference between misdemeanor and felony vehicular manslaughter is the presence of "gross negligence." It is also the difference between up to a year in jail and up to 10 years in prison - or even 15, if the driver was under the influence of drugs or alcohol.

In your opinion, what constitutes gross negligence?

And do you think motorists should charged immediately after a collision with a cyclist, or should charges only be brought forth after an exhaustive investigation?

And do you think motorists should charged immediately after a collision with a cyclist, or should charges only be brought forth after an exhaustive investigation?

What? How would you know who to charge or what to charge him with if you did it all before an investigation? Or should we just automatically place random charges against everyone within a 100' radius of every accident?

For the sake of this discussion, here is the definition of gross negligence from Law.com (http://dictionary.law.com/Default.aspx?selected=838):

gross negligence
n. carelessness which is in reckless disregard for the safety or lives of others, and is so great it appears to be a conscious violation of other people's rights to safety. It is more than simple inadvertence, but it is just shy of being intentionally evil. If one has borrowed or contracted to take care of another's property, then gross negligence is the failure to actively take the care one would of his/her own property. If gross negligence is found by the trier of fact (judge or jury), it can result in the award of punitive damages on top of general and special damages.I found nearly this exact same definition referenced dozens of times, so I have to assume it is the generally accepted definition. If there is a better or more concrete definition out there feel free to reference and post it here.

My personal take on this is that any of the options in your poll may or may not fall under the classification of gross negligence. It seems that it is a bit subjective, and a finding of gross negligence relies on circumstances beyond the acts themselves. For instance...driving 70mph in a 65mph zone on the highway vs. driving 70mph in a 35mph in a residential neighborhood. Both are speeding, but do either or both rise to the level of gross negligence?

I guess I could make a personal case that all of the infractions mentioned constitute some level of gross negligence, since a reasonable person should understand that any of those actions could potentially cause harm to others. Based on the fact that not all running of red lights, speeding, etc. cases end up with a finding of gross negligence, however, there's obviously more to it than my interpretation, as evidenced by this quote from the linked article:


"These cases can be incredibly complex - does the evidence show gross negligence?" Bourne said.

"You want to have good science, and good science takes time," said S.C. Williamson, a forensic scientist who oversees the toxicology unit of Idaho State Police Forensic lab in Pocatello. The lab does blood toxicology tests for Boise police.

"Before we decide (whether to charge), we want to be able to prove the case beyond reasonable doubt," Bourne said.

"Making a charging decision in the heat of the moment is not going to help anyone in the long run."Also from the article:

...officials are waiting for blood and urine tests to determine if the drivers - or victims - were drunk or under the influence of drugs at the time of the crashes.Again, contributing factors that most likely would be used to determine if the infractions rise to the level of gross negligence.

As for the charges, I think the same procedure should be followed as in any other motor vehicle accident, whether the accident involves cars, bikes, pedestrians, etc. There's no reason to abandon protocol simply because a cyclist was involved.

Around here, you lose your license ON THE SPOT pending the outcome of the investigation--- in accidents where there are serious injuries or extensive property damage.

Around here, you lose your license ON THE SPOT pending the outcome of the investigation--- in accidents where there are serious injuries or extensive property damage.Where is here?

At least under US law (dunno if you're in the US or not), that would seem to be illegal, as it would violate your right to due process and the whole `innocent until proven guilty thing'. Though I wouldn't put it past the government to ... overlook those parts of the Constitution ...

Where is here?

At least under US law (dunno if you're in the US or not), that would seem to be illegal, as it would violate your right to due process and the whole `innocent until proven guilty thing'. Though I wouldn't put it past the government to ... overlook those parts of the Constitution ...
I was thinking the same thing.

In Massachusetts the only way that I'm aware of to get your license yanked on the spot is to refuse a breathalyzer in a suspected DUI stop. Automatic 180 day suspension. If you take the breathalyzer and fail, you will be arrested but won't technically lose your license until at least your hearing, and possibly your actual court date depending on the circumstances.

For the sake of this discussion, here is the definition of gross negligence from Law.com (http://dictionary.law.com/Default.aspx?selected=838):
I found nearly this exact same definition referenced dozens of times, so I have to assume it is the generally accepted definition. If there is a better or more concrete definition out there feel free to reference and post it here.
Wow, somebody who did a little bit of research!!


If gross negligence is found by the trier of fact (judge or jury)

I wonder if you can be charged with "gross negligence" or whether it is "icing on the cake" (so to speak) added on top of a charge (in a trial).

I voted speeding as it is an issue close to my heart as I had a close freind killed by a speeding motorist and I have a couple other horrifying stories of cyclists killed by speeding motorists. The chance of surviving an accident with a motorist going over 35mph drops dramatically and motorists doing 50mph on a 35mph road that kills a cyclists and don't even get charged makes my blood boil.

I cannot select two choices... if I could it would be texting and driving under the influence. Both to me are examples of someone being negligent at the wheel.

Speeding is an issue that makes my blood boil too. But I think it can be done safely under the right circumstances... and if the driver IS paying attention. But any distraction and speeding too is right up there with texting... the problem being that far too many motorists speed without being aware... and they have no idea what is just around the next bend, or over the next crest.

I thought I knew what constituted "gross negligence", but that has been shaken somewhat in the last few months. Locally, a speeding driver, with a blood alcohol level almost three times the legal limit, while driving on a suspended license from a previous DUI, can kill 4 persons and seriously injure 2 others, was convicted of vehicular manslaughter without gross negligence.

Also, another local motorist who sets down a cup at freeway speed hits and kills a cyclist, who's 11 feet to the right of the fog line, with the driver's side of his grill, is now on trial with a possibility of having his charges reduced to vehicular manslaughter without gross negligence.

We have a street racing law here in Toronto... 40kph over the limit gets your car impounded and an automatic week license suspension. Beyond that it's pretty much open season it seems sometimes.

Where is here?

At least under US law (dunno if you're in the US or not), that would seem to be illegal, as it would violate your right to due process and the whole `innocent until proven guilty thing'. Though I wouldn't put it past the government to ... overlook those parts of the Constitution ...

With all due respect, it seems to me that you confuse prevention with punishment.

Taking away a driver's license at the scene of the crime is an immediate (albeit, temporary) way to prevent any more incidents, pending the outcome of one's right to "due process". Revoking that driver's license (temporarily, or permanently), following a hearing/trial, might be the appropriate punishment.

Don't let's get into another BS discussion about The Constitution: after all, driving a car is a privilege, not a right.

With all due respect, it seems to me that you confuse prevention with punishment.Sorry, but the prevention takes the form of a punishment.
At least when somebody is arrested because they're a suspect in a murder case, the police have a good reason to think they may have done it -- due process has started. Arresting everybody at the scene of an accident (or taking their driver's licenses) for a while until they can straighten things out is another.

Don't let's get into another BS discussion about The Constitution: after all, driving a car is a privilege, not a right.Doesn't matter in this case. Neither privileges nor rights are to be taken without due process.

I still don't know where filtersweep's `here' is. My guess is that it's not in the US, assuming that he's not misunderstood the policy.

In Massachusetts the only way that I'm aware of to get your license yanked on the spot is to refuse a breathalyzer in a suspected DUI stop. Automatic 180 day suspension. If you take the breathalyzer and fail, you will be arrested but won't technically lose your license until at least your hearing, and possibly your actual court date depending on the circumstances.In Texas too, though here I think it's only 60 days and I don't know if there's any other ways to lose it automatically.

It's part of the agreement to actually getting the license in the first place, that's how they get past the whole `due process' thing. And it's voluntary -- you have the choice to take the test. I don't think any `serious accident? lose your license immediately for a short period of time' thing would fly -- it would ensnare even those who are completely innocent and compliant.

http://www.idahostatesman.com/newsupdates/story/812247.html

Idaho code says the difference between misdemeanor and felony vehicular manslaughter is the presence of "gross negligence." It is also the difference between up to a year in jail and up to 10 years in prison - or even 15, if the driver was under the influence of drugs or alcohol.

In your opinion, what constitutes gross negligence?

And do you think motorists should charged immediately after a collision with a cyclist, or should charges only be brought forth after an exhaustive investigation?

Our opinions matter not one bit on this - it is a legal definition which is interpreted in each case by a judge or jury.

What constitutes "gross negligence"?

A nightgown that's been barfed on.

-Kurt

Don't let's get into another BS discussion about The Constitution: after all, driving a car is a privilege, not a right.


Neither privileges nor rights are to be taken without due process.

Excerpt from the Resonance blog, in an article titled "Rights Versus Privileges" (http://www.brianarner.com/weblog/archives/000264.html): [T]here is a notable difference between a right and a privilege. Black's Law Dictionary defines the terms as follows:


RIGHT: "Rights are defined generally as 'powers of free action.' And the primal rights pertaining to men are enjoyed by human beings purely as such, being grounded in personality, and existing antecedently to their recognition by positive law."

PRIVILEGE: "A particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of other citizens. An exceptional or extraordinary power or exemption. A peculiar right, advantage, exemption, power, franchise, or immunity held by a person or class, not generally possessed by others."

Removing the former requires "due process"; while removing the latter does not.

My personal take on this issue is that repeat offenders or people who have a history of reckless driving or DUI should be detained immediately after an accident in which serious injury or property damage results, and the burden will be on them to prove they are innocent.

How many times have a person suspected of DUI been released on bail, only to kill or injure more people? Although in some accidents, where there are no witnesses, it may require some time for police to piece together what happened. But if the driver appears clearly intoxicated, or seems unfit to be behind the wheel, and has a history of traffic infractions, then I think it would be in everyone's best interest to have him immediately detained.

Pretty much "All of the Above" of course to varying degrees depending upon severity.

Excerpt from the Resonance blog, in an article titled "Rights Versus Privileges" (http://www.brianarner.com/weblog/archives/000264.html): [T]here is a notable difference between a right and a privilege. Black's Law Dictionary defines the terms as follows:


RIGHT: "Rights are defined generally as 'powers of free action.' And the primal rights pertaining to men are enjoyed by human beings purely as such, being grounded in personality, and existing antecedently to their recognition by positive law."

PRIVILEGE: "A particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of other citizens. An exceptional or extraordinary power or exemption. A peculiar right, advantage, exemption, power, franchise, or immunity held by a person or class, not generally possessed by others."

Removing the former requires "due process"; while removing the latter does not.

For those definitions, perhaps. But you have a RIGHT under the law of your state to receive a driver's license if you meet the eligibility requirements. Everyone who meets the eligibility requirements is presumptively entitled to a DL. If the state wants to take away your DL, you are entitled to due process protections under the constitution. Basically, the state is not required to give anyone DLs...but if they do issue DLs, they can't take them away without providing due process.

This is true in all kinds of contexts - you can't have your license as, say, a professional engineer or medical doctor removed without due process, even though there is no constitutional right to be a P.E. or M.D. You can't have your social security benefits reduced or suspended without due process, even though there is no constitutional right to SS.

Gross negligence means you have to do it 144 times, right? Oh, that's something else.



Our opinions matter not one bit on this - it is a legal definition which is interpreted in each case by a judge or jury.

+1

The options in the poll are situational. Some of those instances might be considered gross negligence at times and not at others.

Actually I would say all of the above, but that wasn't an option.

PRIVILEGE: "A particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of other citizens. An exceptional or extraordinary power or exemption. A peculiar right, advantage, exemption, power, franchise, or immunity held by a person or class, not generally possessed by others."The issue of due process taking away rights or privileges has already been covered, so I'll leave it alone for now.

But back to your definition of privilege -- According to this (http://wiki.answers.com/Q/How_many_licensed_drivers_are_there_in_the_US) (which is not a credible source, but I have no reason to doubt it), `the USA had between 202 million to 240 million licensed drivers (in 2006)'. With a population near 300 million, that indicates that over 2/3rds of the people in the US are licensed drivers. They also claim that 88% of the adult population has a driver's license.

If 2/3rds of the people have something, does that mean it's no longer a `particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of other citizens' ? Is it exceptional or extraordinary power or exemption? A peculiar right, advantage, exemption, power, franchise, or immunity held by a person or class, not generally possessed by others?

If most people have it, is it still a privilege? If 2/3rds of the population (or 88% of the adults) isn't enough, what percentage is required to make it no longer a privilege?

Gross negligence means you have to do it 144 times, right? Oh, that's something else.

:lol:

With the caveat that I am not admitted to the bar in Idaho, and not competent as a criminal lawyer in any jurisdiction:

According to my Blacks "gross negligence" is the "intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of others." While I may quibble with the definition (e.g., disregard of other consequences may very well constitute gross negligence), the important thing is that gross negligence (and negligence, for that matter) is first and foremost a failure to do something.

This poll asks which of four positive actions are gross negligence and the clear answer has to be "none of the above". On the other hand, my initial response was "all of the above, except reasonable speeding", so I need to try to reconcile these.

1 "Running a red light" comes in at least two forms (both of which I have I have, sad to say, been guilty of while driving and cycling):

(a) Intentionally running a red light.
Like most cyclists, I do this frequently at lights where it is clear that there is no cross-traffic (or turning traffic), especially when the sensor doesn't recognize bikes and . I do it most often at this downhill from 1-3 in the morning. http://maps.google.com/maps?f=q&source=s_q&hl=en&q=Valley+St+%26+3rd+St,+South+Orange,+Essex,+New+Jersey+07079&sll=37.0625,-95.677068&sspn=52.68309,43.330078&ie=UTF8&cd=1&geocode=FXSybQIdft-S-w&split=0&ll=40.745111,-74.258952&spn=0.024873,0.033474&z=15 (Hopefully no S.Orange police read this board.)
Since intentionally running a red light is a clear violation of the law intended to protect the parties with the red light and also those with the green light, I believe the party running the red light has assumed the risk of any injury incurred in so doing and assumed liability for any injury caused to persons with the green light. Since it's an intentional act, there is no negligence, gross or ordinary, in running the red light. Depending on the circumstances, there may be negligence in failing to notice cross-traffic, but the liability of the red-light runner should not depend on the existence of negligence or its degree.

A driver who intentionally runs a red light and, in so doing, hits and kills a cyclist, pedestrian or other driver should be charged with felony vehicular manslaughter.

(b) Inadvertent running of a red light. This is where a driver (or rider) fails to notice a light or fails to notice that the light is red. This will most often constitute gross negligence as a traffic lights are generally designed to be so obvious that a failure to notice one is approaching a red light can only be due to a wholesale failure of attention.

A driver who intentionally runs a red light and, in so doing, hits and kills a cyclist, pedestrian or other driver generally should be charged with felony vehicular manslaughter, but an investigation of the circumstances should be made.

2 Driving under the influence.
Again, this is a positive act. The intoxicant may prevent the exercise of rational facilities, so I'm not sure whether to characterize it as intentional, but it, in itself, is not gross negligence. Interestingly, we tend to upgrade actions of intoxicated persons that otherwise might have been characterized as simple negligence, attributing the failure of care to intentionally created intoxication, and also to downgrade the most severe offenses, on the grounds that an intoxicated person could not have the level of intention necessary for, e.g., first degree murder.

A driver who intentionally runs a red light and, in so doing, hits and kills a cyclist, pedestrian or other driver should be charged with felony vehicular manslaughter.

3. Texting while driving.
I haven't done this, mostly because I don't text. (Back when I was in elementary school I once hit a parked car while "reading while biking", which should be pretty close to the same thing.)

It is my understanding that texting generally requires one's attention (and one or more of one's hands) to be focused on a cell phone rather than on the road or controlling the car. Disregarding the road in order to message a friend "I'm almost to your house" or even "OMG he lk totally lks U" is clearly an intentional disregard of the manifest duty to attend to the road in front of you. (I think this can be contrasted with a driver who takes his attention off the road to find a pacifier for a screaming baby because, as a society, we recognize a parent's duty to care for children -- or just the impossibility of enduring a screaming baby for an extended time -- while we do not recognize an obligation to constantly tweet one's activities.)

A driver who hits and kills a cyclist, pedestrian or other driver that he or she did not notice because he or she was texting while driving should be charged with felony vehicular manslaughter.

4. Speeding.
Speeding can be intentional or inadvertent. In either case, it may shorten the driver's reaction window but does not have anything to do with the degree of attention the driver gives to his or her surroundings. Because of the shortened reaction window, an intentional speeder may appropriately have a greater degree of liability than a driver with the same degree of attentiveness but a longer window in which to react. However, until a driver is driving too fast for the conditions, he or she is not necessarily even negligent if he or she is paying proper attention to his or her surroundings. (On most interstate highways, most drivers can drive 70-80 without requiring substantially more attention than they need at the 55 -65 speed limit.)

The circumstances under which a speeding driver who hits and kills a cyclist, pedestrian or other driver should be investigated before determining whether to charge him or her with felony vehicular manslaughter.