Instruction 5.160, Criminal Model Jury Instructions for Use in the District Court

MOTOR VEHICLE HOMICIDE

(MISDEMEANOR - NEGLIGENCE)

G.L. c. 90, § 24G(b)

The defendant is charged with motor vehicle homicide. To

prove the defendant guilty of this offense, the Commonwealth must

prove four things beyond a reasonable doubt:

First: That the defendant operated a motor vehicle;

Second: That the defendant did so (on a public way) (or) (in a place

where the public has a right of access) (or) (in a place where

members of the public have access as invitees or

licensees);

Third: That while operating a motor vehicle, the defendant did so in

a negligent manner so that the lives or safety of the public

might be endangered; and

Fourth: That the defendant’s act(s) caused the death of another

person.

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant was operating a motor

vehicle. A person “operates” a motor vehicle while doing all of the

well-known things that drivers do as they travel on a street or

highway, and also when doing any act which directly tends to set the

vehicle in motion. A person is “operating” a motor vehicle whenever

they are in the vehicle and intentionally manipulate some mechanical

or electrical part of the vehicle — like the gear shift or the ignition —

which, alone or in sequence, will set the vehicle in motion.

Additional instructions on “operation” may be found in Instruction 3.200 (Revised January

2013). Additional instruction on what constitutes a “motor vehicle” may be found in

Instruction 3.210 (Revised May 2017).

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt that the defendant operated a motor

vehicle on a public way. Any street or highway that is open to the

public and is controlled and maintained by some level of government

is a “public way.” This would include, for example, interstate and

state highways as well as municipal streets and roads. In determining

whether any particular street or road is a public way, you may

consider evidence, if any, about whether it has some of the usual

indications of a public way — for example, whether it is paved,

whether it has streetlights, street signs, curbing and fire hydrants,

whether there are buildings along the street, whether it has any

crossroads intersecting it, and whether it is publicly maintained.

Public way is an element of the vehicular homicide statute. See Commonwealth v.

Angelo Todesca Corp., 446 Mass. 128, 142-143 (2006). Additional instructions on

“public way”, including language related to a public “right of access” or access as

“invitees or licensees”, may be found in Instruction 3.280 (Revised 2009).

To prove the third element, the Commonwealth must prove

beyond a reasonable doubt that the defendant drove negligently in a

manner that might have endangered the lives or safety of other

people. A person acts negligently when they fail to use due care, that

is, when they act in a way that a reasonable person would not act.

This can happen either by doing something that a reasonable person

would not do under the circumstances, or by failing to do something

that a reasonable person would do. The defendant acted negligently

if they drove in a way that a reasonable person would not have, and

by doing so created an unnecessary danger to other people, a danger

that they could have avoided by driving more carefully.

The defendant’s intent is not relevant in determining negligence.

The Commonwealth is not required to prove that the defendant

intended to act negligently. The issue here is whether or not the

defendant drove as a reasonable person would have under the

circumstances.

In determining whether the defendant drove negligently in a

manner that might have endangered the lives or safety of other

people, you should take into account evidence, if any, about: the

defendant’s rate of speed and manner of operation; the defendant’s

physical condition and how well they could see and control their

vehicle; the condition of the defendant’s vehicle; the kind of a road it

was and who else was on the road; the time of day, the weather, and

the road conditions; what any other vehicles or pedestrians were

doing; and any other factors that you think are relevant.

See also Instruction 3.180 (Negligence). For a supplemental instruction on violation of the

law as evidence of negligence, see the supplemental instructions to Instruction 3.180. If

the violation is speeding, see the supplemental instructions to Instruction 5.640 (Road

Racing).

Negligence lacks the element of intent. See Commonwealth v. Guaman, 90 Mass. App.

Ct. 36, 46 (2016), quoting Commonwealth v. Diaz, 19 Mass. App. Ct. 29, 36-37 (1984)

(“The essence of the offense of vehicular homicide is negligence, i.e., an unintended

act”). See Commonwealth v. Campbell, 394 Mass. 77, 83 n.5, 6 & 87 (1985) (speeding

not negligence per se but can be considered with other evidence in determining

negligence; evidence of intoxication admissible on the issue of negligence as well as on

the issue of operating under the influence; victim’s contributory negligence is not

defense); Commonwealth v. Charland, 338 Mass. 742, 744 (1959) (speed is relevant

factor); Commonwealth v. Gurney, 261 Mass. 309, 312 (1927) (relevant jury factors).

To prove the fourth element, the Commonwealth must prove

beyond a reasonable doubt that the defendant’s act(s) caused the

death of another person. This requires the Commonwealth to prove

two things. First, the Commonwealth must prove beyond a

reasonable doubt that the death would not have occurred but for the

defendant’s act(s). The Commonwealth must prove that the

defendant’s conduct was necessary to bring about the death. If the

death would have occurred without the defendant’s act(s), the

defendant is not responsible for that death.

Second, the Commonwealth must also prove beyond a

reasonable doubt that a reasonable person in the defendant’s

position would have foreseen that their conduct could result in

serious injury or death to a person. The Commonwealth does not

have to establish that the defendant foresaw, or should have

foreseen, the exact manner in which the injury occurred; but the

Commonwealth must establish that the death was a natural and

probable consequence of the defendant’s act(s).

"The appropriate standard of causation to be applied in a negligent vehicular homicide case

under § 24G is that employed in tort law." Commonwealth v. Angelo Todesca Corp., 446 Mass.

128, 141 (2006), quoting Commonwealth v. Berggren, 398 Mass. 338, 340 (1986). See also

Doull v. Foster, 487 Mass. 1, 17-20 (2021).

Note: principles of comparative or contributory negligence do not apply, and are

not a defense, to the crime of motor vehicle homicide. See end note #6.

In the rare circumstance where there are multiple sufficient simultaneous causes

of death, the jury should be instructed as follows:

It may be that there are two or more events that occur at

the same time and each is sufficient to have caused a person’s

death. By way of example:

Two people were independently camping in a heavily

forested campground. Each one had a campfire, and each failed

to ensure that they put the fire out before going to bed. Due to

unusually dry forest conditions and a strong wind, both

campfires escaped their sites and began a forest fire. The two

fires, burning out of control, joined together and burned down a

hunting lodge. Either fire alone would have destroyed the lodge.

Each person’s act is a factual cause of the destruction of the

hunting lodge.

A defendant whose act was fully capable of causing a

person’s death should not be acquitted simply because of

another sufficient cause, like the second fire, operating at the

same time. The causation requirement is satisfied when there

are two or more competing causes like the twin fires, each of

which is sufficient without the other to cause the death and each

of which is in operation at the time a person’s death occurs.

In such a case, the Commonwealth does not have to prove

that the death would not have occurred but for the defendant’s

act(s). Instead, it must prove that the defendant’s conduct was

capable of causing a person’s death. In other words, if the

Commonwealth proves that – without the other cause – the

defendant’s act was necessary to bring about the death, then the

Commonwealth has met its burden of proof.

See Doull, 487 Mass. at 18 & n. 23

If the Commonwealth has proven all four elements of the offense

beyond a reasonable doubt, you should return a verdict of guilty. If

the Commonwealth has failed to prove one or more of the elements

beyond a reasonable doubt, you must find the defendant not guilty.

SUPPLEMENTAL INSTRUCTIONS

1. Evidence of an accident. The fact that an accident occurred is not

by itself evidence that the defendant was negligent. You must

examine all the evidence about how the accident happened in order

to determine whether any negligence was involved, and if so,

whether that negligence was the defendant’s.

See Anderson v. Peter Pan Bus Lines, Inc., 56 Mass. App. Ct. 919, 921 (2002) (affirmed

instruction to jury that “[t]he mere happening of an accident is not proof of negligence.”)

2. Emergency situation. In determining whether the defendant’s

conduct was negligent, you may consider whether there was a

sudden emergency which required rapid decision. The defendant is

not guilty if the defendant acted as a reasonable person would under

similar emergency circumstances.

See Newman v. Redstone, 354 Mass. 379, 383 (1968) (“[T]he emergency condition is a

factor in determining the reasonable character of the defendant's choice of action.”) See

also Hallett v. Wrentham, 398 Mass. 550, 559 (1986).