Instruction 5.240, Criminal Model Jury Instructions for Use in the District Court

OPERATING NEGLIGENTLY SO AS TO ENDANGER

G.L. c. 90, § 24(2)(a)

The defendant is charged with operating a motor vehicle

negligently in a manner that might endanger the public.

To prove the defendant guilty of this offense, the

Commonwealth must prove three things beyond a reasonable doubt:

First: That the defendant operated a motor vehicle;

Second: That the defendant did so (on a 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); and

Third: That the defendant did so in a negligent manner so that

the lives or safety of the public might have been endangered.

At this point, the jury must be instructed on the definitions of “Operation of a Motor

Vehicle” (Instruction 3.200) and “Public Way” (Instruction 3.280).

If there is a stipulation to certain elements: [Because the parties have

stipulated (that the defendant was operating a motor vehicle)

(and) (that the location was a public way) (that the location was

one to which the public had a right of access) the only element(s)

the Commonwealth must prove beyond a reasonable doubt (is)

(are) that the defendant list element(s) .]

The third thing the Commonwealth must prove beyond a

reasonable doubt is 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 reasonably prudent

person would not do under those circumstances, or by failing to do

something that a reasonably prudent 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.

A. If there was no accident. A person can be found to have

driven negligently even if no accident resulted, and even if

there was no one else actually on the road to be put in

danger. A person is negligent if they drive in a way that

has the potential to cause an accident or to endanger

anyone who might be on the road.

B. If there was 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.

In determining whether the defendant drove negligently in a

manner that might have endangered the public, you should take into

account all the facts of the situation: the defendant’s rate of speed

and manner of operation, the defendant’s physical condition and how

well the defendant could see and could control the vehicle, the

condition of the defendant’s vehicle, what kind of a road it was and

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

condition of the road were, what any other vehicles or pedestrians

were doing, and any other factors that you think are relevant.

If you find that the defendant acted negligently, the defendant’s

intent is not relevant. You are not required to find that the defendant

intended to act negligently or unlawfully. This is in that category of

situations where public safety requires each driver to determine and

to adhere to an objective standard of reasonable behavior. Therefore,

the defendant’s subjective intent is irrelevant; the issue is whether or

not the defendant drove as a reasonable person would have under the

circumstances.

CONCLUSION

If there are stipulations. Because the parties have stipulated (that

the defendant was operating a motor vehicle) (and) (that the location

was a public way) (that the location was one to which the public had

a right of access), the only element(s) the Commonwealth must

prove beyond a reasonable doubt is (are) that the defendant (state

elements). If the Commonwealth has proved (that) (those) element(s)

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

has not, you must find the defendant not guilty.

If there are no stipulations. So there are three things that the

Commonwealth must prove 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); and

Third: That the defendant did so in a negligent manner so that

the lives or safety of the public might have been endangered.

If the Commonwealth has proven all three elements beyond a

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

Commonwealth has failed to prove one or more of these elements

beyond a reasonable doubt, you must return a verdict of not guilty.

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).

Commonwealth v. Burno, 396 Mass. 622, 624 1368 (1986) (potential danger to public is

relevant factor for jury consideration); Commonwealth v. Campbell, 394 Mass. 77, 83 n.5 &

87 (1985) (speeding not negligence per se but can be considered with other evidence in

determining negligence; victim’s contributory negligence is not defense); Commonwealth

v. Jones, 382 Mass. 387, 389-392 (1981) (negligence to be determined by same standard

as in tort law for purposes of vehicular homicide statute [G.L. c. 90, § 24G], which was taken

almost verbatim from driving so as to endanger statute); Commonwealth v. Charland, 338

Mass. 742, 744 (1959) (speed is relevant factor); Commonwealth v. Gurney, 261 Mass. 309,

312 (1927) (relevant jury factors); Commonwealth v. Vartanian, 251 Mass. 355, 358

(1925) (same); Commonwealth v. Horsfall, 213 Mass. 232, 235 (1913) (reckless operation

can occur even on deserted street); Commonwealth v. Ferreira, 70 Mass. App. Ct. 32

(2007) (conviction supported where defendant backed out of parking space in shopping

center parking lot and then accelerated forward at about 20 m.p.h., causing the wheels to

spin and the back end to fishtail, while the vehicle made a screeching noise);

Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 922 n.2 (2004) (negligence to be

determined by same standard as in tort law; speeding not negligence per se but can be

considered with other evidence in determining negligence); Commonwealth v. Gordon, 15

Mass. App. Ct. 901 (1982), aff’d, 389 Mass. 351 (1983) (negligent inattention to driving

plus glassy eyes and slurred speech will support conviction).

Prior to St. 1928, c. 281, this was a strict liability offense that did not include any

requirement of negligence. That should be kept in mind when reviewing early decisions

involving the former statute.

SUPPLEMENTAL INSTRUCTIONS

1. Negligence or intoxication of other driver. You have heard

testimony suggesting that the driver of the other vehicle

involved in this matter, [name] , was (negligent) (or)

(intoxicated). It is up to you to decide whether or not to

accept that testimony as accurate.

If you do conclude that the other driver was

(negligent) (or) (intoxicated), then you must determine what

role that driver’s (negligence) (or) (intoxication) played in

this matter.

The other driver’s driving is irrelevant to the

defendant’s guilt or innocence on this charge unless the

other driver was the sole cause of what happened. The

defendant is not excused merely because the other driver

was (negligent) (or) (intoxicated), if the defendant’s

negligence was the direct cause of what happened, and the

other driver’s (negligence) (or) (intoxication) merely

aggravated the result. On the other hand, if the other

driver’s (negligence) (or) (intoxication) was the sole cause

of what happened and the defendant was not negligent,

then the defendant must be found not guilty.

Commonwealth v. Galluzzo, 25 Mass. App. Ct. 568 (1988) (judge must allow evidence of

other driver’s negligence if it would warrant a finding that the sole negligence was that of the

other driver, but careful instructions are required to make clear that contributory negligence

is not a defense). In the rare circumstance where there are multiple direct simultaneous

causes of an accident, the supplemental instruction to Instruction 5.160 [Motor Vehicle

Homicide – (Misdemeanor – Negligence)] may be appropriately adapted.

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. If there was, you must determine whether

the defendant acted as a reasonable person would under

similar emergency circumstances.

Newman v. Redstone, 354 Mass. 379, 383 (1968).