Opinion
No. 494, 2000
December 31, 2001
REPORT OF FINDINGS ON REMAND
This 31st day of December, 2001, upon remand from the Supreme Court, it appears that:
1. The defendant was convicted of three counts of Assault in the Second Degree and motor vehicle offenses after a bench trial. The Court concluded that she recklessly caused serious physical injury to three occupants of a horse drawn buggy when a vehicle she was operating struck it as the buggy turned left while she attempted to pass it at the intersection of Brittany Lane and Yoder Drive in Kent County.
2. On appeal the parties have advanced arguments concerning the applicability of Bullock v. State to the facts of this case. In Bullock, which was decided after the trial in this case, the Supreme Court examined 11 Del. C. § 263. The Supreme Court has remanded the case in order for this court to consider the parties' arguments and specifically address the Section 263 issue by either applying or distinguishing the holding in Bullock. The remand order directs the Superior Court to make findings of fact and conclusions of law regarding the applicability, if any, of 11 Del. C. § 263 and the Supreme Court's holding in Bullock to the facts that were established at the defendant's trial.
Del. Supr. 775 A.2d 1043 (2001).
3. In Bullock the defendant was driving west bound through an intersection under a yellow light at a speed of approximately 77 miles per hour. He had been drinking but was below the legal limit for driving under the influence. He had the right of way. Another driver facing east bound was stopped in a turn lane at a solid red arrow waiting to turn left across the west bound lane. As the defendant was driving through the intersection, the other driver pulled out through the solid red arrow and the collision occurred. As a result of the collision, the other driver died. The defendant was charged with manslaughter by recklessly causing the death of the other driver while speeding and impaired by alcohol. The trial judge instructed the jury on the mens rea of "recklessly" as defined in 11 Del. C. § 231 and the "but for" part of the definition of causation set forth in 11 Del. C. § 261. The trial judge did not, however, instruct the jury on the causation principles set forth in 11 Del. C. § 263. That section provides that "reckless causation . . . is not established if the actual result is outside the risk of which the defendant is aware . . . unless: . . . [t]he actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a bearing on the actor's liability . . . " The Supreme Court reasoned that the defendant had no duty to anticipate that the other driver would pull through the red arrow. It concluded that the jury could not properly decide the defendant's guilt or innocence without having been given an instruction based on 11 Del. C. § 263, and that a new trial was therefore required.
11 Del. C. § 263. The section has two subsections. The quoted language is from the second subsection, which is the subsection involved in Bullock. That is the subsection that is involved here as well. Both parties and the Court agree that the first subsection is not implicated in this court's inquiry.
4. In support of her argument that § 263 and Bullock compel an acquittal in this case, the defendant contends that Vernon Yoder, the driver of the buggy, was negligent by turning left at the intersection without using the buggy's turn signal; that he was also negligent by turning "prematurely," i.e., cutting the corner from Brittany Lane to Yoder Drive instead of continuing past the imaginary intersection of the center lines of the two roads and turning from the right lane of Brittany Lane directly to the far right lane of Yoder Drive; that as a result of the "premature" turn, the Yoder buggy was also on the wrong side of the road on Brittany Lane; that by turning "prematurely," Vernon Yoder violated 21 Del. C. § 4152(a)(2) relating to left turns on two lane roadways; that under Bullock a driver has no duty to anticipate the negligence of another; that the defendant accordingly had no duty to anticipate the aforesaid alleged negligence on the part of Vernon Yoder; that under Bullock she cannot be found to have had actual awareness that Yoder would turn left without using his turn signal and do so in the improper, "premature" manner described; that the rule of the road making it illegal to pass in an intersection was not enacted to prevent an accident involving vehicles going in the same direction; and that Bullock compels an acquittal by holding that a driver is not to be charged with actual awareness that another driver will disregard the rules of the road.
On remand, the defendant has renewed her argument that there is no evidence of her awareness of risk. In support of her argument, she emphasizes testimony from the investigating officer in which he says: "This is all guest [sic] work, we doesn't know what was going through her mind at the time." However, there was ample circumstantial evidence to support the conclusion that she saw the buggy as she approached it and was attempting to pass it on the left when the collision occurred.
5. In opposition to the defendant's contentions, the State contends that application of § 263 does not change the result in this case; that the defendant makes a civil argument of intervening or superceding causation based upon the alleged conduct of the buggy driver which is misplaced in determining her criminal responsibility; that the limitations on causation set forth in § 263 are only operative where there is a contrast between the actual result and the probable result; that in this case the actual result (the collision with the left turning buggy) was the same as the probable result; that a collision with the buggy on the left side of the road at the intersection was within the risk of which the defendant was aware; that the fact that the buggy would turn left to Yoder Drive was not so extraordinary or remote a development that it would be unfair to hold the defendant criminally responsible for her conduct; that Bullock is factually and legally distinguishable; that Bullock had the right of way and was at a place on the road where he had a right to be, unlike the defendant in this case; that Bullock's traffic offense, speeding, did not contribute to the accident in that case whereas the defendant's traffic offenses in this case clearly did; and that unlike Bullock where the defendant could not anticipate that the other driver would pull through a red light, Vernon Yoder's act of turning left was not so extraordinary or unusual that it should not have been reasonably anticipated by the defendant.
FINDINGS OF FACT
6. In its decision issued July 20, 2000, after the defendant's trial, the Court set forth a summary of how the accident occurred. The facts established at the defendant's trial, and the Court's findings on the factual issues pertinent to § 263, which I find to have been established beyond a reasonable doubt, are as follows: The defendant was traveling approximately 58 miles per hour on Brittany Lane, a rural, 50 mile per hour road, late at night, when she saw the buggy ahead of her going in the same direction. Despite the fact that the buggy displayed a reflective triangle on its rear and the defendant could no doubt see that she was approaching a slow-moving buggy, she decided to pass the buggy on the left at her same speed of travel. The road was an unlit, narrow, back road, slightly less than twenty feet wide. It had no shoulders or lane markings. As the defendant continued to approach the buggy, she saw that she would be passing it in or near the intersection of Brittany Lane and Yoder Drive. She decided to keep on going at her same rate of speed and continue with her passing movement. As mentioned, the collision occurred when she struck the buggy as it turned left from Brittany Lane to Yoder Drive.
There was evidence that it was a bright, moonlit night. However I do not find this evidence to be significant, as the fact remains that it was night and there were no road lights . . .
7. Upon these facts, the court concluded in its decision issued July 20, 2000, that ". . . under all of the circumstances of this case the defendant was aware of and consciously disregarded a substantial and unjustifiable risk that her conduct would cause serious physical injury to the occupants of the buggy." In this case the harm which occurred, i.e., serious injury to the occupants of the buggy, was within the risk of which the defendant was aware.
8. The defendant's risk creation began when she decided to pass the horse and buggy on Brittany Lane at a speed of 58 miles per hour. It was clearly apparent, and I find she was aware, that her passing movement would bring her vehicle very close to the horse and buggy as she passed because of the narrowness of the road and the absence of shoulders. Based upon the foregoing facts and circumstances which I have concluded were known to her, I find that she was aware that doing so at the speed she was traveling, without slowing down, was unsafe and posed a risk of serious harm to the people in the buggy. I also conclude that once she realized her passing movement would occur at or near the intersection, she became aware of a risk that the horse and buggy would turn left on Yoder Drive. I also conclude, after considering all of the facts and circumstances, and have no doubt, that the actual manner in which the accident occurred was not so remote or accidental that it should affect the conclusion that the defendant's reckless conduct was the cause of the accident and the serious injuries sustained by the three persons in the buggy.
6. In making these findings, I have taken into account the conduct of Vernon Yoder and the defendant's arguments that he was negligent by turning "prematurely" and not using his turn signal. The apparent theory of the defendant's "premature" turn argument is that, if the horse and buggy had continued into the intersection to a point opposite the right-hand lane of Yoder Drive before making its turn, the defendant would have gotten by. However, although I recognize that horses and buggies have an obligation to follow the rules of the road where applicable, and assuming that the defendant's contention concerning the required manner of making left turns is correct, it is unrealistic to expect a horse powered buggy to make a neat, 90 degree turn. In addition, the configuration of the intersection of Brittany Lane and Yoder Drive is not conducive to turning left in the manner argued by defendant. The angle between the roads from the direction the Yoder's were traveling appears to be considerably less than 90 degrees. In addition, the evidence was that the horse and buggy were well into their turning movement when the collision occurred, with the horse having cleared the intersection. The argument that the accident could have been avoided if the buggy had not turned "prematurely" is unpersuasive. I find that the manner in which Vernon Yoder turned the horse and buggy is not a significant factor. With regard to the turn signal issue, Vernon Yoder testified that he could not recall whether he had activated it. There was no other evidence on the point. Therefore, whether or not Vernon Yoder turned on the turn signal and, if so, when, is unknown. I have taken into consideration that the buggy turn signal may not have been on when the buggy made its left turn.
CONCLUSIONS OF LAW
10. In this case the actual manner in which the accident occurred was within the risk of which the defendant was aware or was not so remote or accidental in its occurrence to have a bearing on the defendant's liability. The element of reckless causation was established.
11. In support of his contention that the rule against passing in an intersection was not intended to prevent an accident with vehicles going in the same direction, the defendant cites Hastings v. Backes. In that case the plaintiff was behind the defendant's vehicle as they approached an intersection. The defendant's right rear blinker indicated that he was going to make a right turn. The plaintiff, following another vehicle, pulled out to the left to go around the defendant who he reasonably thought was turning right. Instead, the defendant's vehicle turned left and the vehicles collided. The defendant attributed the inconsistency of signaling a right turn and then turning left to an equipment failure. The Court, ruling that the plaintiff was not contributorily negligent, found that the plaintiff was not really passing the defendant in the intersection, but merely going around him as the defendant made what the plaintiff reasonably thought was going to be a right turn. The Court reasoned that the kind of accident which occurred was not of the kind which the rule against passing in an intersection was designed to prevent, as the accident which occurred could have occurred at any portion of a road where there were private driveways. Hastings is readily distinguishable from this case. In that case the Court determined that the plaintiff was not passing, but merely going around a vehicle which he reasonably thought was turning right. In this case the defendant was clearly making an illegal passing move in the intersection or within 100 feet thereof. Passing in an intersection or within 100 feet thereof is prohibited for the protection of persons who may be turning there. My ruling is that this protection is for persons turning off the traveled road as well as those turning on it.
Del. Super., 264 A.2d 520 (1970).
10. Relying on Bullock and also on Superior Court pattern civil jury instruction 6.3, the defendant contends that Bullock compels an acquittal by holding that a driver has no duty to anticipate the negligence of another and cannot be found to have actual awareness that another driver will disregard the rules of the road. He contends that Vernon Yoder was negligent and that his alleged negligence renders her conduct not reckless. However, in Bullock, the defendant had the right of way to go through the intersection, and the other driver pulled through a red arrow into his lane. Bullock was at a place on the road where he had a right to be. In this case, by contrast, the defendant did not have the right of way and struck the Yoder buggy while passing illegally at a place where she clearly had no right to be. There was also evidence in Bullock that the accident would have occurred even if the defendant had not been speeding. In addition, I do not find that Vernon Yoder's act of turning left was so unusual or unexpected as going through a red light into the favored driver's lane of travel. The principle that a driver is not required to anticipate someone else's negligence is not absolute. The Court has considered the defendant's arguments and Vernon Yoder's conduct in assessing the defendant's culpability. Based upon the above-mentioned differences between the two cases, the Court concludes that Bullock is clearly distinguishable from this case.
WHEREFORE, the Prothonotary is directed to deliver this report on remand to the Clerk of the Supreme Court forthwith.
IT IS SO ORDERED.