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Chapter 53: Ordinary Negligence And Recklessness
53.1 Distinction Between Recklessness And Negligence
53.2 Negligence May Not Be Presumed From Violation Of Traffic Safety Statute
53.3 Recklessness: Intoxication Not A Defense
53.4 Unconstitutional To Infer Recklessness From Speeding
53.5 Transferred Negligence: Negligent Or Reckless Crimes Should Not Be Extended To Unforeseeable Victims
53.6 Failure To Secure Infant In Car Seat Is Not "Reckless"
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53.1 Distinction Between Recklessness And Negligence
PRACTICE NOTE: "The difference between the terms recklessly and negligently, as usually defined, is one of kind rather than degree." (State v. Pinero (HI 1989) 778 P2d 704, 713, fn 7.) "Each actor creates a risk of harm." [Original emphasis.] (Ibid.) "The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it." [Original emphasis.] (Ibid.; see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 3.7; Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS II(A) inst. 2 [Recklessness-Definition] p. 93 (South Carolina CLE, 1994).)
RESEARCH NOTES:
See LaFave & Scott, Substantive Criminal Law (West, 1986) § 3.7.
See Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS II(A) inst. 2 [Recklessness-Definition] p. 93 (South Carolina CLE, 1994)
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53.2 Negligence May Not Be Presumed From Violation Of Traffic Safety Statute
RATIONALE: A person may violate a traffic safety statute without being negligent.
POINTS AND AUTHORITIES: Requiring the jury to presume negligence from the violation of a safety statute is improper. (See State v. Dyess (WI 1985) 370 NW2d 222, 225-230.)
See also FORECITE National™ 92.5.2.3 [Equating Violation Of Speed Law With Inherent Dangerousness Is Improper Mandatory Presumption].
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 2.4; 4.1].
SAMPLE INSTRUCTION:
[Section ______ provides that ________________.]
Failure to comply with this law may, but does not necessarily, constitute negligence. It is for you to determine whether the defendant failed to comply with this law and, if (he/she) did, whether such failure to comply was negligent.
[See State v. Dyess (WI 1985) 370 NW2d 222, 225-230; see also WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1170 [Homicide By Negligent Operation Of A Vehicle] ¶ 10-12, p. 2 (University of Wisconsin Law School, 2000).]
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53.3 Recklessness: Intoxication Not A Defense
PRACTICE NOTE: See Ameen v. State (WI 1971) 186 NW2d 206, 212.
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53.4 Unconstitutional To Infer Recklessness From Speeding
PRACTICE NOTE: An instruction which "isolates speed as the only circumstance needed to permit the jury to find reckless driving" violated the due process clause of the federal constitution. (Schwendeman v. Wallenstein (9th Cir. 1992) 971 F2d 313, 316.) This is so because it cannot be said "with substantial assurance that the inferred fact of reckless driving flows more likely than not flowed from the proved fact of excessive speed." (Ibid.; see also Ulster County. v. Allen (1979) 442 US 140, 165 [99 SCt 2213; 60 LE2d 777]; Hanna v. Riveland (9th Cir. 1996) 87 F3d 1034, 1037; State v. Randhawa (WA 1997) 941 P2d 661, 665 [challenged instruction invited the jury to draw an inference of recklessness based solely on speed].)
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53.5 Transferred Negligence: Negligent Or Reckless Crimes Should Not Be Extended To Unforeseeable Victims
See FORECITE National™ 52.4 [Transferred Negligence: Negligent Or Reckless Crimes Should Not Be Extended To Unforeseeable Victims].
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6 Failure To Secure Infant In Car Seat Is Not "Reckless"See FORECITE National™ 92.4.2.7 [Failure To Secure Infant In Car Seat Is Not "Reckless"].