NEGLIGENT HOMICIDE - RECKLESS DISREGARD DEFINED
Reckless disregard of the safety of others is the omission to do something which a reasonably careful person would do, or the lack of the usual and ordinary care and caution in the performance of an act usually and ordinarily exercised by a person under similar circumstances and conditions.
Statutory Authority: 47 O.S. 1991, §§ 1-122, 11-903.
The negligent-homicide statute was enacted in 1961 and is restricted to vehicular operation upon a highway. 47 O.S. 1991, § 11-101. Thus, the location of the reckless operation is incorporated as an element to be proved. The term "highway" is defined in accordance with the statutory definition set forth in 47 O.S. 1991, § 1-122. To date, the cases decided under section 11-903 involve only deaths occurring as a result of reckless operation of a vehicle upon a public road or a city street. Given the inapplicability of section 11-903 to conduct occurring on private property, such as a private parking lot or a private road, presumably reckless conduct in operating a vehicle which results in death in these private places should be prosecuted as manslaughter in the second degree, as defined in 21 O.S. 1991, § 716.
It must be noted that section 11-903 refers to reckless disregard in the operation of a "vehicle." Section 1-186 of Title 47 defines a "vehicle" as "every device in, upon or by which any person or property is or may be transported or drawn upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks." The statute expressly excludes from the definition of "vehicle" any "implement of husbandry," which is defined in section 1-125 of Title 47.
The statutory standard, "in reckless disregard of the safety of others," is the equivalent of the "culpable negligence" standard defined in 21 O.S. 1991, § 716. Lester v. State, 562 P.2d 1163 (Okl. Cr. 1977); Thompson v. State, 554 P.2d 105 (Okl. Cr. 1976). The standard is articulated in the cases as follows: "[C]ulpable negligence is the omission to do something which a reasonable and prudent person would do, or the want of the usual and ordinary care and caution in the performance of an act usually and ordinarily exercised by a person under similar circumstances and conditions." Id. at 108. Utilizing this statement of the standard for culpability, "it is unnecessary to attempt to categorize this definition as ordinary negligence, gross negligence, or as any other degree of negligence." Id. Thus, in instructing the jurors, the court should simply substitute the words "reckless disregard of the safety of others" for the phrase "culpable negligence," as indicated in the instruction.
The statute clearly requires that the death of the victim proximately result from the culpable conduct of the defendant, and the jury must be so instructed. Thus, it constitutes reversible error to refuse to permit the defendant to establish that the lack of care evidenced by the conduct of the deceased, rather than the defendant's own conduct, caused the vehicular mishap. Williams v. State, 554 P.2d 842 (Okl. Cr. 1976).
The crime of negligent vehicular homicide usurps many homicides occurring as a result of misconduct in the operation of a vehicle, previously characterized as manslaughter in the first degree under 21 O.S. 1991, § 711(1) (misdemeanor-manslaughter), or manslaughter in the second degree under 21 O.S. 1991, § 716. The Court of Criminal Appeals has held that section 11-903 does not repeal by implication the applicability of the first-degree manslaughter statute, 21 O.S. 1991, § 711(1), to prosecutions for homicides occurring where the defendant was operating his vehicle while in a state of intoxication. Lomahaitewa v. State, 581 P.2d 43 (Okl. Cr. 1978); White v. State, 483 P.2d 751 (Okl. Cr. 1971); Ritchie v. Raines, 374 P.2d 772 (Okl. Cr. 1962). Although the court has indicated that driving while intoxicated is merely one instance of the type of gross negligence which removes the offense from the misdemeanor statute, 47 O.S. 1991, § 11-903, and allows prosecution of a felony under 21 O.S. 1991, § 711(1), Hopkins v. State, 506 P.2d 580 (Okl. Cr. 1973), the court has held that other infractions of the highway safety codes, although misdemeanor offenses, could be prosecuted only under the later and more specific negligent homicide statute, section 11-903. Short v. State, 560 P.2d 219 (Okl. Cr. 1977). Similarly, 47 O.S. 1991, § 11-903, has been held to repeal by implication section 716 of Title 21, the second-degree manslaughter statute, in vehicular-homicide cases. Atchley v. State, 473 P.2d 286 (Okl. Cr. 1970). Thus, section 11-903 controls all highway vehicular homicide cases, except those where it is proven that the defendant was driving while intoxicated under 21 O.S. 1991, § 711(1), or where the defendant's conduct is so willful and wanton that it constitutes murder in the second degree under 21 O.S. 1991, § 701.8.
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