Instruction 3.180, Criminal Model Jury Instructions for Use in the District Court

NEGLIGENCE

Negligence is the failure to use that degree of care which a

reasonably prudent person would use under the circumstances, either by

doing something that a reasonably prudent person would not do, or by

failing to do something that a reasonably prudent person would do under

similar circumstances.

Before one can be negligent, one must owe a duty of reasonable care

to another person. Motorists owe such a duty to other members of the

public in the operation of their vehicles.

“There is in Massachusetts at common law no such thing as criminal negligence.” Commonwealth

v. Welansky, 316 Mass. 383, 400, 55 N.E.2d 902, 911 (1944). The definition given is the traditional

definition of civil negligence. Altman v. Aronson, 231 Mass. 588, 591, 121 N.E. 505, 506 (1919). See

Beaver v. Costin, 352 Mass. 624, 626, 227 N.E.2d 344, 345-346 (1967); Scott v. Thompson, 5 Mass.

App. Ct. 372, 374-375, 363 N.E.2d 295, 296 (1977). Proof of ordinary (civil) negligence is sufficient

in prosecutions for driving negligently so as to endanger (G.L. c. 90, § 24[2][a]) or for vehicular

homicide (G.L. c. 90, § 24G). Commonwealth v. Berggren, 398 Mass. 338, 340, 496 N.E.2d 660, 661

(1986); Commonwealth v. Jones, 382 Mass. 387, 389, 392, 416 N.E.2d 502, 504, 506 (1981);

Commonwealth v. Burke, 6 Mass. App. Ct. 697, 700 & n.3, 383 N.E.2d 76, 79 & n.3 (1978).

A negligence instruction must make at least some reference to the reasonable person standard and

to the attendant circumstances. Morgan v. Lalumiere, 22 Mass. App. Ct. 262, 267, 493 N.E.2d 206,

210 (1986); O'Leary v. Jacob Miller Co., 19 Mass. App. Ct. 947, 948, 473 N.E.2d 200, 201 (1985).

The language of the model instruction is drawn from the Morgan case and from Manual of Model Jury

Instructions for the Ninth Circuit § 14.02(B) (1985 ed.).

SUPPLEMENTAL INSTRUCTIONS

1. Reasonable care. A person is negligent if, by doing

something or not doing something, he or she fails to use

reasonable care. Reasonable care means the level of attention

and forethought that a reasonably careful person, a person of

ordinary caution and prudence, would exercise in those

particular circumstances to avoid harming others.

2. Violation of safety regulation. Violation of a safety regulation

established by (statute) (ordinance) (by-law) (rule) (regulation) is

some evidence of negligence. It is not, however, conclusive

evidence of negligence. If it is proved that the defendant

violated such a safety regulation, you may consider that fact,

together with all the other circumstances, in determining

whether the defendant acted negligently.

3. Civil motor vehicle infraction. You have heard some evidence

suggesting that the defendant may have violated chapter _____ ,

section _____ of our General Laws, which (requires) (prohibits) a

motorist _______ . Any such violation is a traffic infraction that

is civil rather than criminal in nature, and therefore no such

charge against the defendant is before you for your resolution.

However, that statute was enacted for the safety of the public.

As I have indicated, if it is proved that the defendant violated

such a statute, you may consider that to be some evidence of

whether the defendant was negligent.

A violation of a safety statute, ordinance, by-law or regulation is evidence of

negligence as to all consequences that the enactment was intended to prevent, but

is not conclusive. In addition, such violation must be shown to be the proximate

cause of the resulting injury. Commonwealth v. Campbell, 394 Mass. 77, 83 n.5, 474

N.E.2d 1062, 1067 n.5 (1985) (violation of speed limit); Cimino v. Milford Keg, Inc.,

385 Mass. 323, 327, 431 N.E.2d 920, 923 (1985) (violation of dram shop law);

Michnik-Zilberman v. Gordon Liquors, Inc., 390 Mass. 6, 10, 453 N.E.2d 430, 433

(1983) (selling liquor to minor); Morris v. Holt, 380 Mass. 133, 135, 401 N.E.2d 851,

853 (1980) (state sanitary code violation); Perry v. Medeiros, 369 Mass. 836, 841,

343 N.E.2d 859, 862 (1976) (building code violation); Leone v. Doran, 363 Mass. 1,

8, 292 N.E.2d 19, 26 (1973) (permitting unlawful use of auto); Kralik v. LeClair, 315

Mass. 323, 326, 52 N.E.2d 562, 564 (1943) (violation of D.P.W. safety regulation);

Gaw v. Hew Constr. Co., 300 Mass. 250, 254, 15 N.E.2d 225, 227 (1938) (building

permit violation); Baggs v. Hirschfield, 293 Mass. 1, 2, 199 N.E. 136, 137 (1935) (no

tail lights); Thurston v. Ballou, 23 Mass. App. Ct. 737, 739-740, 505 N.E.2d 888, 890

(1987) (Federal highway safety regulations); Petras v. Storm, 18 Mass. App. Ct. 330,

333-334, 465 N.E.2d 283, 286 (1984) (O.U.I.).

The language of the supplemental instruction is adapted from Florida Standard Jury

Instructions in Civil Cases § 4.11 (1980 ed.).

SELECTED RULES OF THE ROAD FROM G.L. c. 90, § 14

1. Bicyclists. “In approaching or passing a person on a bicycle the operator of a motor vehicle shall

slow down and pass at a safe distance and at a reasonable and proper speed.”

2. Intersections. “The person operating a motor vehicle on any way. . . upon approaching any junction

of said way with an intersecting way shall, before entering the same, slow down and keep to the right of the center

lane.”

3. Left turns. “When approaching for a left turn on a two-way street, an operator shall do so in the lane

of traffic to the right of and nearest to the center line of the roadway and the left turn shall be made by passing to the

right of the center line of the entering way where it enters the intersection from his left. When turning to the left within

an intersection or into an alley, private road or driveway an operator shall yield the right of way to any vehicle

approaching from the opposite direction which is within the intersection or so close thereto as to constitute an

immediate hazard. When approaching for a left turn on a one-way street, an operator shall do so in the lane of traffic

nearest to the left-hand side of the roadway and as close as practicable to the left-hand curb or edge of roadway.”

4. Obstructed view. “The person operating a motor vehicle on any way or a curve or a corner in said

way where his view is obstructed shall slow down and keep to the right. . . .”

5. Pedestrians. “Upon approaching a pedestrian who is upon the traveled part of any way and not upon

a sidewalk, every person operating a motor vehicle shall slow down.”

6. Right turns. “When turning to the right, an operator shall do so in the lane of traffic nearest to the

right-hand side of the roadway and as close as practicable to the right-hand curb or edge of roadway.”