State v. Lopez ( 1999 )

Brown, J.

(dissenting) — Our vehicular homicide statute is a strict liability law. State v. Rivas, 126 Wn.2d 443, 451-53, 896 P.2d 57 (1995). The question is not whether a causal connection exists between the defendant’s disregard for the safety of others and the victim’s death, but whether a causal connection exists between the defendant’s operation of a motor vehicle and the victim’s death. Id. If the evidence in a vehicular homicide prosecution tends to show the defendant operated a motor vehicle and death ensued, then prima facie evidence tending to show intoxication, recklessness, or disregard for the safety of others is sufficient to submit the case to a jury. Under Rivas, no connection need be shown between intoxication and a victim’s death; thus, no connection need be shown between driving with disregard for the safety of others or recklessness and a victim’s death. The jury must decide beyond a reasonable doubt whether the defendant disregarded the safety of others or acted recklessly under the facts of this case. To the extent the trial court required otherwise, it erred.

Nina Lopez convinced the trial court proof of causation is critical under these facts. Under Rivas, she is just partly correct.

Under RCW 46.61.520 an intoxicated defendant may still avoid responsibility for a death which results from his or her driving if the death is caused by a superseding, intervening event. In crimes which are defined to require specific conduct resulting in a specified result, the defendant’s conduct must be the “legal” or “proximate” cause of the result.

Rivas, 126 Wn.2d at 453. As no superseding, intervening event is yet claimed in this record, dismissal at this juncture was inappropriate. The State has no burden to prove the absence of superseding cause before it is raised by the defense. See State v. McAllister, 60 Wn. App. 654, 660-61, 806 P.2d 772 (1991), superseded by statute on other grounds as stated in State v. Hursh, 77 Wn. App. 242, 247 n.3, 890 P.2d 1066, review denied, 126 Wn.2d 1025 (1995).

Disregard for the safety of others is an aggravated kind of negligence “falling short of recklessness but constituting a more serious dereliction than the hundreds of minor oversights and inadvertences encompassed within the term ‘negligence.’ ” State v. Eike, 72 Wn.2d 760, 765-66, 435 P.2d 680 (1967). The Eike definition has been incorporated into WFIC 90.05. “Disregard for the safety of others means an aggravated kind of negligence or carelessness, falling short of recklessness but constituting a more serious dereliction than minor oversights and inadvertences encompassed within ordinary negligence . . . .” WFIC 90.05. Ordinary negligence is distinguished and “does not render a person guilty of vehicular homicide.” Id. Furthermore, an automobile can be a dangerous instrumentality. Curtis v. Blacklaw, 66 Wn.2d 484, 489, 403 P.2d 358 (1965). A driver is charged with knowledge of a car’s operational limitations. Woods v. Goodson, 55 Wn.2d 687, 691, 349 P.2d 731 (1960). Steering limitations are at issue here.

Applying the Eike standard the evidence is sufficient to support the element of disregard for the safety of others. A 14 year old, presumably incompetent to drive, driving a car, a potentially dangerous instrumentality, without first completing a driver’s education course or obtaining even a learner’s permit let alone a license has committed more than a “minor inadvertence” or “oversight.” The evidence thus tends to show disregard for the safety of others. Moreover, driving under these circumstances is an intentional or inherently dangerous act. The trial court’s role is to simply assure prima facie evidence exists of each required element, then the facts become jury determinations. Here, because evidence tends to show a serious dereliction, more than a minor inadvertence or oversight, the question whether Ms. Lopez disregarded the safety of others should have been left for the jury to decide.

Recklessness is also alleged. To operate a motor vehicle in a reckless manner means to drive in a rash or heedless manner, indifferent to the consequences. State v. Bowman, 57 Wn.2d 266, 270-71, 356 P.2d 999 (1960); see WPIC 90.05. The evidence tends to show Ms. Lopez acted in a rash or heedless manner by driving an automobile, a potentially or inherently dangerous instrumentality. Also the evidence allows inferences she drove at approximately 50 miles per hour without training and overcorrected while steering thus permitting a jury to conclude she conducted herself in a manner indifferent to the consequences. An adult standard of conduct is appropriate because “[wjhen the activity a child engages in is inherently dangerous, as is the operation of powerful mechanized vehicles, the child should be held to an adult standard of care.” Robinson v. Lindsay, 92 Wn.2d 410, 413, 598 P.2d 392 (1979). The same court reasoned immediately thereafter: “Such a rule protects the need of children to be children but at the same time discourages immature individuals from engaging in inherently dangerous activities.” Id. Although a negligence case involving snowmobiles, the reasoning in Robinson is perhaps equally or more true under these circumstances. In my view, a presumably incompetent 14 year old driving a potentially or inherently dangerous automobile, a form of powerful mechanized vehicle, is engaging in an inherently dangerous activity, perhaps more so, than the child in Robinson.

Recently, in State v. Gostol, 92 Wn. App. 832, 965 P.2d 1121 (1998), Division One considered a vehicular assault case involving an adult driving an unfamiliar automobile. There, loss of control was attributed to oversteering. The issue was whether the trial court erred by not giving a lesser offense instruction for negligent driving. The defense expert opined Ms. Gostol oversteered possibly due to the driver’s inexperience with the particular car. Gostol, 92 Wn. App. at 835. The evidence of oversteering, speed and Ms. Gostol’s decision to pass were determined sufficient to permit the jury to consider the question of whether Ms. Gostol’s conduct constituted recklessness or negligence. I would permit a jury to answer a similar question here. I would hold the evidence against Ms. Lopez is more compelling than that found in Gostol on the issue of recklessness and sufficient to submit this case to a jury.

Accordingly, I respectfully dissent.