RECKLESSNESS VERSUS NEGLIGENCE OR WHEN IS A TRAFFIC ACCIDENT A CRIME?

This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in October, 2004

I. INTRODUCTION

We all know that traffic collisions may result in both criminal law and civil law consequences. In some cases, the line between a criminal act and a civil tort is not always clear. Recently, the Second District accepted my argument that the State failed to prove my client's guilt of the offense of aggravated reckless driving when he lost control of his vehicle, swerved across the center line, and collided with an oncoming motorcycle.1 Although the collision resulted in horrific injuries for the young lady riding as a passenger on the motorcycle, the failure to prove the mental state of recklessness resulted in outright reversal of the conviction.

II. MENTAL STATES OF RECKLESSNESS AND NEGLIGENCE

The Criminal Code of Illinois defines a reckless mental state as follows:

"A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation…."2

By contrast, the mental state of negligence is defined in this fashion:

"A person is negligent, or acts negligently, when he fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, described by the statute defining the offense; and such failure constitutes a substantial deviation from the standard of care which a reasonable person would exercise in the situation."3

If you compare these two statutes word for word, the only differences in the two definitions are (1) the substitution of the phrase "fails to be aware" in the negligence statute for the phrase "consciously disregards" in the recklessness statute, and (2) the substitution of the term "substantial deviation" in the negligence statute for the term "gross deviation" in the recklessness statute. However, these slight wording distinctions can make a world of difference in the outcome of a case. The Appellate Court has ruled that where the conduct of the accused can be equally attributable to a negligent or a criminal cause, the acts will be deemed negligent, thereby preventing the entry of a criminal conviction based on a reckless mental state.4

III. FACTS

High school senior Adam Schaffer worked on the morning of April 20, 2000, then took his girlfriend to a local Dairy Queen, and later started driving her home during daylight hours. He proceeded north-bound on Illinois Route 31 for several blocks north of the intersection with Main Street in St. Charles. At this location, Route 31 contains two north-bound and two south-bound lanes. He saw a Corvette located ahead of him in the center lane of traffic, which he anticipated would make a left turn at Indian Mound Road. Adam drove in the same center lane, but failed to pay continuous attention to traffic. When he looked back at the roadway, the Corvette had not turned left, but had stopped to wait for an oncoming line of motorcycles to clear the intersection. Mr. Schaffer was confronted by an emergency situation because his Jeep approached dangerously close to the rear of the other vehicle.

In order to avoid a collision with the Corvette, the Defendant swerved to the right into the curb lane of traffic. Although he succeeded in avoiding an accident with the other car, at least one of the tires on the passenger side of the Jeep drove off the roadway onto the gravel shoulder. Some of the gravel on the shoulder was tossed into the air. As he passed the passenger side of the Corvette, Mr. Schaffer applied his brakes and tried to keep his Jeep on the north-bound side of the road. However, he lost control and the vehicle fishtailed, spun around 180 degrees, and only stopped after crossing the center line. The Jeep struck the last south-bound motorcycle, throwing the driver and passenger in the air, and seriously injuring Francesca Panzeca.

Unlike most cases of this nature, the State's proof contained no evidence that my client had been drinking or using drugs. Moreover, the State did not introduce any evidence indicating that Mr. Schaffer violated any traffic law, such as by speeding or using improper lanes, and did not present the testimony of an accident reconstruction expert. Despite the able talents of no less a barrister than Gary Johnson, Judge Wegner denied motions for a directed verdict and the jury convicted the Defendant of aggravated reckless driving.

IV. LEGAL ARGUMENTS AND APPELLATE RULING

The Appellate Court accepted the defense contention that this tragic accident was caused only by Mr. Schaffer's negligence, that is, his failure to be aware of a substantial risk caused by his substantial deviation from the standard of care in the manner of his driving. In other words, the defense contended that this occurrence amounted to a classic case of negligence -- an accident in the strictest sense of the word. The brief conceded that Adam acted in a negligent fashion by failing to keep a proper lookout, but claimed that no other facts demonstrated his conscious disregard of a risk of harm to others that constituted a gross deviation from the standard of care.

The Appellate Court reversed the Defendant's conviction, labeling his driving as "quintessentially negligent conduct." The Court rejected the State's argument that Adam's emergency, evasive maneuver constituted a reckless act. Instead, the Court noted that only the failure to take evasive action to avoid an imminent collision would have been reckless.5 Thus, even though the Defendant's negligence caused the emergency situation, the effort to avoid the immediate threat to life or property did not constitute a reckless act.6

V. OTHER CASE LAW

As further guidance on the distinction between reckless and negligent conduct, please consult the Illinois cases listed below. These decisions address two sets of circumstances as to the sufficiency of evidence of recklessness, namely (1) situations in which the driver is impaired by the use of alcohol or drugs, and (2) fact patterns that include multiple known hazards deliberately encountered by the driving of the accused.

As to the first set of cases, one needs little imagination to realize that proof of being under the influence of alcohol or drugs will often pose an insurmountable obstacle to an acquittal. I will not dwell on these scenarios, but simply refer you to People v. Latto, 304 Ill.App.3d 791, 800 (1st Dist., 1999) and People v. Ethridge, 243 Ill.App.3d 446, 465 (2nd Dist. 1993).

With regard to the second set of appellate decisions, numerous cases hold that a single violation of a traffic statute does not suffice to prove recklessness. Thus, proof that the accused was speeding, executed an improper passing maneuver, or failed to obey a traffic signal cannot alone sustain a finding of recklessness, absent the existence of other aggravating factors.7 In addition, the following circumstances did not rise to the level of reckless acts: (1) Failure to maintain a safe interval while driving at a high rate of speed;8 (2) Turning the steering wheel in an effort to avoid a collision after driving over an unforeseeable hazardous condition in the road;9 (3) Driving five miles per hour over the speed limit while accelerating and changing lanes, causing the car to slide on the road;10 and (4) Driving five miles per hour over the speed limit combined with changing lanes, and overtaking other vehicles on the right.11
By contrast, the following cases upheld convictions for reckless acts: People v. Luttmer, 48 Ill.App.3d 303, 305 (2nd Dist., 1977) and People v. Burch, 19 Ill.App.3d 360, 364 (4th Dist., 1974) (driving into the oncoming traffic lane at a time when children were present at the side of the road); People v. Seals, 218 Ill.App.3d 799, 801 (1st Dist., 1991) and People v. Brajcki, 150 Ill.App.3d 506, 512 (2nd Dist., 1987) (excessive speed combined with other traffic violations, such as driving the wrong way on a one-way street and disobeying traffic control signals); People v. House, 197 Ill.App.3d 1017, 1019 (1st Dist., 1990) (excessive speed in a congested area combined with an improper lane change and poor weather); and People v. Mikyska, 179 Ill.App.3d 795, 800 (2nd Dist., 1989) (driving at a high rate of speed, the use of sedatives, and the failure to respond to a crisis situation despite time to avoid a collision).

The distinctions drawn by these authorities require careful evaluation of the facts of your case to determine whether the State can prove a crime or merely a negligent tort.

VI. FOOTNOTE (UNNUMBERED)

Normally a court of review will not re-examine the credibility of the witnesses in an appeal. However, as with all rules of law, exceptions lurk in the shadows. In Mr. Schaffer's case, the Appellate Court decided not to give credence to a portion of the trial testimony of Ms. Brown. During the trial, she asserted that the client jerked his steering wheel to the left as he passed the passenger side of her vehicle, almost striking the Corvette. This witness made no such assertion in the statements she gave to the police at the time of the accident, two and one-half years earlier. Despite the State's argument that this conduct pushed the recklessness issue over the top, the Court noted that the movement of the wheel could be equally explained by the loss of control of the Jeep due to driving over the gravel shoulder of the road. As noted above, the case law in this area requires courts to adopt the negligent explanation for an act rather than a reckless state of mind if both are equally plausible. (Footnote 4) This particular rule of law permitted the appellant to avoid the normal rubber stamp given to prosecution testimony when a case is reviewed on appeal.

Real Footnotes

1. People v. Adam Schaffer, #2-03-0089, Rule 23 Order entered April 14, 2004.

2. 720 ILCS 5/4-6 (West 2000)

3. 720 ILCS 5/4-7 (West 2000)

4. People v. Barham, 337 Ill.App.3d 1121, 1127 (5th Dist., 2003)

5. People v. Edmundson, 247 Ill.App.3d 738, 743 (2nd Dist., 1993)

6. Also see People v. Chambers, 8 Ill.App.3d 430, 433 (2nd Dist., 1972) (reckless homicide conviction reversed because the proof only established improper overtaking on the right, even though this violation caused the vehicle to skid and cross the center line due to loss of control of the car)

7. People v. Barham, 337 Ill.App.3d 1121, 1127 (5th Dist., 2003); People v. Gosse, 119 Ill.App.3d 733, 738 (2nd Dist., 1983); People v. Luttmer, 48 Ill.App.3d 303, 305 (2nd Dist., 1977); People v. Johnson, 30 Ill.App.3d 974, 975 (5th Dist., 1975)

8. People v. Frary, 36 Ill.App.3d 111, 113 (5th Dist., 1976)

9. People v. Walljasper, 97 Ill.App.3d 81, 82 (3rd Dist., 1981)

10. People v. Jakupcak, 275 Ill.App.3d 830, 836 (2nd Dist., 1995)

11. People v. Latto, 304 Ill.App.3d 791, 800 (1st Dist., 1999)

Larry Wechter is the primary of the Law Offices of Larry Wechter, 1770 S. Randall Road, Suite A, #212, Geneva, Illinois 60134, phone: 630/232-4354, e-mail: larry.wechter@sbcglobal.net. Larry served as a felony prosecutor in Kane County for 5 years and has been in private practice since 1987.