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STATE v. KANG

Superior Court of Delaware, New Castle County
Jul 15, 2002
I.D. No. 0010013244 (Del. Super. Ct. Jul. 15, 2002)

Opinion

I.D. No. 0010013244

Submitted: July 10, 2002

Decided: July 15, 2002

UPON THE STATE'S MOTION IN LIMINE — GRANTED.

William L. George, Jr., Esquire, Deputy Attorney General, Wilmington, Delaware for State.

Edmund Daniel Lyons, Esquire, Wilmington, Delaware for Defendant.


This is a tragic case involving the lethal mix of teenagers, alcohol, speeding — and ultimately death. Defendant Bo Kang is charged in a two-count indictment with Criminally Negligent Homicide and Driving a Vehicle After Consuming Alcohol, as a result of an automobile collision that occurred on August 11, 2000.

Trial was originally scheduled for May 8, 2002 but after defendant notified the State that it intended to offer an expert to testify regarding the impact of the victim's failure to wear a seat belt, the State filed a Motion to Exclude the Evidence on the basis that it did not meet the standard for scientific opinion evidence required by Delaware Rules of Evidence and Daubert. That motion was heard on the date trial was to have commenced. The testimony was excluded because the expert's qualifications were not sufficient to offer an opinion on the seat belt issue.

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Trial was rescheduled for June 11, 2002. Again, the defendant notified the State that he would present opinion testimony on the same subject matter but through a different more appropriately qualified expert. This latest effort to introduce opinion evidence on the seat belt issue precipitated the State's present Motion in Limine to Preclude Expert Testimony on the Issue of Seat belts. At this juncture, the question is not one of scientific reliability under Daubert, as presumably this latest expert's qualifications have not been challenged by the State. Rather, the State seeks a finding by the Court that the proffered evidence is irrelevant and should therefore be excluded under D.R.E. 402 and 702.

The State has objected to the admission of this evidence on the ground that the notice to the State and the contents of the notice are not in compliance with Rule 16 of the Delaware Rules of Criminal Procedure. While both the timing and the substance of defendant's notice do not adhere strictly to the requirements of the rule, the Court's ruling on the merits of this issue make it unnecessary to consider the additional procedural grounds raised by the State.

The State asserts that expert testimony on whether the victim would have survived should be excluded pursuant to D.R.E. 403 as "confusing and a waste of time." The Court's conclusion herein makes consideration of this additional claim unnecessary.

Following an office conference with counsel, briefs were filed on the issue of evidentiary relevance, the last of which was received on July 10, 2002. Based upon a consideration of the well-written briefs and the extensive Delaware case law, as well as decisional authority from a number of other states, for the reasons more fully set forth below, the Court concludes that the expert opinion testimony proffered by the defendant is not relevant. The State's Motion in Limine is therefore GRANTED.

The State intends to present evidence at trial to show that Bo Kang, who was under the age of 21 on August 11, 2000, had been drinking at the time of the collision as his blood alcohol level tested .072. Defendant, who was driving his car with friends who were passengers, approached the intersection of Possum Park Road and Papermill Road in Newark, Delaware. Defendant accelerated to a speed of approximately 74 miles per hour through the intersection. Defendant lost control of the car, which skidded across the road before flipping over. The victim, Andrew Wilkie, who was seated in the front passenger seat, was killed. It is undisputed that the victim was not wearing a seat belt.

Defendant seeks to introduce evidence that, absent his failure to wear a seat belt, the victim would have survived the accident underlying the pending charge of criminally negligent homicide. He argues that, under 11 Del. C. § 361, the State must prove, not only criminally negligent behavior, i.e. that defendant was driving at an excessive speed while impaired by alcohol, but that his negligent behavior actually caused the victim's death.

Contentions of the Parties

Relying upon the definition of causation in 11 Del. C. § 263, and the Delaware Supreme Court's interpretation of that section in the case of Bullock v. State, defendant submits that he is entitled to present expert testimony on the issue of causation in order to show that the victim would not have died from the collision had he been properly restrained by a seat belt. He claims that because death resulted, in part from the victim's failure to wear a seat belt, as well as from defendant's negligence, the jury should be permitted to assess this circumstance in determining the element of reckless or negligent causation.

775 A.2d 1043 (Del. 2001).

The State contends that any expert evidence that the victim's death would not have occurred if he had been restrained by a seat belt is irrelevant and therefore inadmissible, for several reasons. First, the State submits that the victim was not negligent as a matter of law because, by statute, it is the driver's responsibility (not the passenger's) to ensure that the front seat passenger is properly secured with a seat belt. To the extent that Bullock and other cases considered the effect of others' negligence in assessing causation, those cases, the State argues, do not apply. The State further contends that, even if the victim's conduct could be considered negligent, it is irrelevant to the issue of negligent causation because both the circumstance of the victim not wearing a seat belt and the victim's death, as a result of defendant's reckless driving were within the risk of which defendant should have been aware, and were not so remote, unusual, unexpected, or accidental in their occurrence to have a bearing on defendant's liability. Thus, it is argued, Bullock and its requirement that the Court instruct on 11 Del. C. § 263 are inapplicable to this case. The State in a related argument, contends that the victim's failure to wear a seat belt is not an intervening cause, nor does the victim's negligence, if any, negate the defendant's culpability.

Del. C. ANN. tit. 21 Del. C. § 4802(a)(2).

The heart of defendant's argument on this issue, and the sole basis upon which he asserts the right to present expert testimony on the effect of the absence of a seat belt is his reading of the Delaware Supreme Court decision in Bullock, a case which, according to defendant, is equally applicable to the case at bar. While Bullock and subsequent decisions do mandate jury consideration of the issue of foreseeability of the risk under 11 Del. C. § 263, the victim's conduct (or omission) in this case is distinguishable in many respects from Bullock. Defendant's reliance on the Bullock case simply does not alter the fact that seat belt evidence is irrelevant nor does Bullock provide a basis for otherwise irrelevant evidence to be presented to the jury.

Bullock was a criminal case in which the defendant was charged with manslaughter. Specifically, the defendant was driving at an excessive speed while impaired by alcohol. As defendant traveled through an intersection on a yellow light, another motorist collided with him when she turned through the same intersection on a solid red arrow. That motorist was killed as a result of the collision. It was undisputed that, even if Bullock had been travelling within the speed limit, he would not have been able to avoid striking the victim's car once she unexpectedly pulled in front of him.

On appeal following the defendant's conviction, the Supreme Court reversed and remanded for a new trial on the basis of the trial court's failure to properly instruct the jury on the element of reckless or negligent causation as defined by 11 Del. C. § 263. In doing so, the Court interpreted Section 263 of the revised Delaware Criminal Code as setting up a framework for situations where the element of reckless or negligent causation may not be established.

The Court noted that establishing causation in criminal prosecutions is subject to limitation when the charged conduct is reckless or negligent, rather than intentional. The Court observed that Section 263 modifies the strict application of the "but for" causation test where the actual and probable results of conduct are different.

The Court rejected the State's straightforward argument that there was no difference between the actual and probable results in Bullock:

. . . In this case, the State argues that there was was no difference in the actual and probable results — an automobile collision causing a death — of Bullock driving at an excessive speed while impaired by alcohol.
* * * * *
The problem we have with that contention is twofold: (1) it overly simplifies fact situations that involve multiple actors who contributed to the result and ignores the purpose of Section § 263; and, (2) it focuses solely upon the defendant's role and minimizes the importance of his awareness of the risk of his actions and his individual ability to avoid the risk before imposing criminal liability. The State puts the issue far too facilely. [The victim's] conduct must be, as a matter of fact, incorporated into the instruction in order to allow the jury to assess intelligently its bearing upon the defendant's awareness that death could result from his presence in the intersection on a yellow light and at the speed that he traveled. They must assess, as well, the remoteness or the probability that at that very same instant [the victim] would disregard a red signal and put her vehicle in his path. Put more plainly, were these odds so great that this chain of events would occur that the jury could conclude that the events had "a bearing on [Bullock's] liability or on the gravity of the offense?"

The Court thus emphasized that, under the Model Penal Code (upon which the Delaware Criminal Code is based) the comparison of actual and probable results must take the specific facts of each individual case into account.

The Court concluded by noting that, had the jury been properly instructed on Section 263, they may have concluded that, despite the defendant's conduct, he may not have recklessly caused the victim's death because the victim's actions could not be expected and were outside the risk of which he was aware. Thus, the significant teachings of Bullock are the importance of considering the precise facts of each situation where multiple causes are involved and of properly instructing the jury on the foreseeability of these actions. As the Court in Bullock itself noted, "Section 263 . . ., was designed for difficult cases such as this one where a defendant contends that the actual result of his conduct is outside the risk of which he is aware."

It is important to note that the Court did not as a matter of law, conclude that disregarding a red light was a risk that could not have been foreseeable. The Court only required that the trial court instruct the jury to consider the victim's act in assessing defendant's guilt.

To the extent that the defendant attempts to equate Andrew Wilkie's failure to wear a seat belt with the victim's negligence in Bullock, his reliance upon that holding is clearly misplaced. Bullock emphasizes that the individual facts of each case must be distinctly considered in assessing the risks inherent in defendant's conduct. The facts in the case at bar are a far cry from those that warranted a Section 263 instruction in Bullock.

In the first place, as the State points out, the victim Andrew Wilkie was not negligent for not wearing his seat belt. In Delaware, it is the driver's responsibility, not the passenger's, to ensure that proper restraints are worn. Thus, unlike the victim in Bullock, who turned left on a red arrow, the victim was not negligent as a matter of law.

Del. C. ANN. tit. 21 Del. C. § 4802(a)(2) (1995).

Even were it to be concluded that the seat belt statute places the onus upon the passenger to assure that he wears a seat belt, and thereby it would arguably be negligence for the victim to fail to do so, the seat belt omission was not a contributing factor to the accident itself. It had nothing whatsoever to do with the defendant losing control while driving his vehicle through an intersection at 74 mph while impaired by alcohol.

Lastly, to accept defendant's reading of the Bullock decision would require that any perceived negligence (or conduct) by another, however slight, would justify an instruction on 11 Del. C. § 263. Yet, neither the Bullock decision nor the Model Penal Code commentary supports defendant's expansive interpretation. To be sure, the commentary to the Model Penal Code, upon which Delaware's Criminal Code is based, indicates that the limitations of Section 263 are only operative when there is a contrast between the actual result and the probable result. The defendant in this case has not established in what way the actual result — the victim's death — differs from the probable result, or in other words, how it is outside the risk of which the defendant should have been aware. Defendant has not made this argument for obvious reasons — the accident in this case and its fatal result were plainly and simply not outside the risk created by defendant's conduct in speeding through an intersection at the rate of 74 mph while impaired with a BAC of .072. As the Ohio Court in State v. Mitchell expressed in a similar factual scenario where the victim of a fatal auto accident failed to wear a seat belt:

586 N.E.2d 196 (Ohio App.3d 1990).

Defendant makes a tenuous [***6] claim as to a distinction existing between a defendant causing the death of another (in the words of the statute), and a defendant's conduct being the proximate cause of the death of another. He would have us believe that evidence of the lack of a seat belt was admissible to show the cause of the death of the passenger, divorcing such cause from any conduct of the defendant. However, the statute makes it a crime for the defendant to "recklessly cause the death of another." This crime is complete when the defendant, while operating a motor vehicle, sets in motion with the required state of mind the chain of conduct and events resulting in the death of another. The operator's culpability is determined when death occurs. He [*127] may "luck out" if death is prevented by the fact that a potential victim is wearing a seat belt, but he is none the less culpable because death occurs when the decedent had not been wearing a seat belt. Thus, when death has occurred, seat belt evidence has nothing to do with whether each of the statutory elements of the crime have been proved by other evidence. Accordingly, it is our opinion that, independently of the seat belt statute, such evidence [***7] was not relevant to the proof of the elements of the alleged crime and was not admissible in any event.

Id. at 198.

Indeed, Delaware decisions that have interpreted Section 263 since Bullock have similarly found a victim's negligence within the foreseeable risks of a defendant's conduct in cases where the victims were even more culpable than merely failing to "buckle up".

See State v. Dehorty, 2001 WL 1729145 (Del.Super.); State v. Lepore, 2002 WL 386293 (Del.Super.).

For example, shortly after Bullock was decided, the Supreme Court remanded the case of State v. Dehorty to the Superior Court in order for the trial court to address the Section 263 issue by either applying or distinguishing the holding in Bullock. In Dehorty, the defendant collided with a horse and buggy. The defendant was traveling at an excessive speed when she changed lanes from behind the horse and buggy to the left lane beside the buggy. The defendant continued to pass near an intersection where it hit the buggy as it made a left turn. Three passengers of the buggy were seriously injured.

The defendant argued that the driver of the buggy was negligent because it turned at the intersection prematurely without signaling. She claimed that she should not be charged with having actual awareness of this negligence. The State, on the other hand, submitted that the collision was within the risk of which defendant was aware and that the buggy turning left was not so extraordinary or remote a possibility as to affect the defendant's liability.

The Superior Court agreed that "[t]he 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." The Court noted that, unlike the defendant in Bullock, who was legally travelling though a yellow light, the defendant in Dehorty did not have the right of way and was passing illegally. Bullock was therefore factually distinguishable because the horse and buggy driver's act of turning left was "not so extraordinary or remote a development that it would be unfair to hold the defendant criminally responsible for her conduct."

State v. Dehorty, 2001 WL 1729145, at *3 (Del.Super.).

Id. at 1.

When reviewing the Dehorty Court's Findings on Remand, the Delaware Supreme Court agreed that Bullock was not applicable because "the collision . . . was not outside the risk of which Dehorty was aware and the actual result involved the same kind of injury as the probable result . . . . Dehorty caused the collision by being where she had no right to be at a time and place where a reasonable person could anticipate or foresee that the buggy ahead of her might make a slow left turn into her path."

Dehorty v. State, Del. Supr., No. 494, 2000 (June 10, 2002) (en banc).

More recently, the Superior Court again considered the impact of the Bullock decision in a criminal prosecution for Vehicular Assault First Degree and Driving While Under the Influence of Alcohol. In State v. Lepore, the defendant was driving at 45 mph while intoxicated. Upon his approach to a road construction site he noticed the reflective barrels that warned of lane closures. Notwithstanding these signals, defendant struck a female flagger dressed in reflective garb. The flagger was seriously injured.

2002 WL 386293 (Del.Super.).

The Superior Court acknowledged that the construction site was not adequately set up, and that the warnings were not sufficient. Nor was the flagger properly positioned in the warning area. The defendant asserted that this negligence "intervened in a manner which rendered the impact with the flagger unforeseeable." The Court held that, even in spite of some negligence on behalf of the flagger and the construction company, the defendant had ample notice as well as time to decrease his speed and become aware of the dangerous conditions and of the presence of the flagger.

Id. at 2.

The Court in Lepore factually distinguished Bullock because the defendant in Bullock was unable to foresee the act of the victim turning left through a red light. In contrast, the victim in Lepore was wearing a reflective vest and was holding a reflective stop sign affixed to a six-foot pole. It was therefore foreseeable to the driver that he was approaching a construction site where people would be working. The Court considered the defendant's allegations of negligence on behalf of the construction company and nevertheless concluded that the State's evidence passed the "Section 263 filter" because the concept of foreseeability was a focus of the parties' trial presentations and the defendant should have been aware of the dangerous construction area and the flagger's presence there.

Unlike Bullock, Dehorty, and Lepore, where the victims had varying degrees of negligence, the victim in the case at bar was essentially blameless. And, unlike the victims in Dehorty and Lepore, the victim's failure to wear a seat belt in this case had nothing whatsoever to do with the collision. If the left turn made by the buggy driver in Dehorty did not constitute an unusual or unforeseeable risk, or the construction company's negligent placement of warning signs in Lepore were not considered sufficiently intervening, then it cannot seriously be contended that Andrew Wilkie's failure to wear a seat belt justifies an instruction under 11 Del. C. § 263. Bullock and its progeny instructs that the limitations on causation set forth in Section 263 are only operative where there is a far greater contrast between the actual result and the probable result than exists in the case at bar. The failure of the victim to wear a seat belt in this case is simply not comparable to the behavior of the victim in Bullock, or even to the victim's conduct (negligent or not) in Dehorty and Lepore.

Defendant argues that it is not the negligence of the victim to which Bullock pertains, but the victim's "conduct". Under the foreseeability analysis this is a distinction without a difference.

In fact, the real issue in this case is not whether the accident that culminated in death resulted in part from the victim's lack of seat restraints (as defendant would like the Court to frame it) but one of causation; specifically whether the victim's failure to wear a seat belt can be considered a proper intervening cause. When the facts are properly analyzed in this context, there can be no question that the seat belt evidence is not relevant to causation.

Although a victim's contributory negligence is generally no defense to a criminal prosecution, a victim's conduct might constitute an intervening cause. The concept is not expressly defined in the statute but it can be a factor that breaks the causal connection required in 11 Del. C. § 261. In State v. Wright, for example, the Delaware Supreme Court considered the question of an intervening cause but upheld the trial court's exclusion of evidence offered to establish one.

See State v. Fiorettii, 245 A.2d 170, 171 (Del.Super. 1968); State v. Drake, 1986 WL 2836 (Del.Super.); State v. Vannicola, 1991 WL 139419 (Del.Super.).

Defendant points out that the Wright case actually supports his argument that the victim's failure to wear a seat belt constituted an intervening cause that would break the causal connection required under the criminal statute. The Court disagrees.

Wright was a homicide case in which the defendant wounded the victim in the chest with a handgun. Defendant asserted that the actual cause of the victim's death was improper medical treatment following the injury. The Delaware Supreme Court held that inadequate medical treatment cannot be a defense unless the initial wound was "not in itself mortal and the victim dies solely as a result of unskilled treatment."

Id. at 828.

To suggest that inadequate medical treatment following an injury resulting from a gunshot wound is tantamount to a victim of a car accident not being properly restrained misconstrues the foreseeability requirement set forth in the overwhelming number of cases that have considered this issue. Unlike the failure of a passenger to be properly restrained in a vehicle, a circumstance that is entirely probable and foreseeable, medical negligence is such an unexpected and substantial factor that it can be an intervening cause. In contrast, the nonuse of a seat belt is not a substantial cause of a person's death in a traffic accident from the standpoint of the foreseeability analysis.

Essentially, to warrant a conviction for criminally negligent homicide, the death must be the natural and probable consequence of the unlawful act and not the result of an intervening cause in which the accused does not participate and which he cannot foresee. To constitute an intervening cause sufficient to exonerate a criminal defendant, the decedent's contributory negligence must be a substantial factor in causing his injury or death.

The seat belt omission cannot be said to have had anything to do with the speeding or the drinking involved in this case, nor was it so substantial an act as to constitute an intervening cause sufficient to absolve defendant from liability for negligent homicide. In this case, neither the requirements of substantiality nor of unforeseeability have been met. An underage driver who drinks and gets behind the wheel of an automobile should reasonably foresee that some among the potential victims of drunken driving will not wear seat belts and that such victims, among others, might be seriously injured in an alcohol induced collision. Nor can it be said that Andrew Wilkie's lack of a seat belt had anything whatsoever to do with the drinking, speeding, and loss of control that contributed to this accident. While the severity of the victim's injury may have been affected by his failure to wear a seat belt, that result was one that was entirely foreseeable under the circumstances, and one that defendant should have contemplated could potentially occur.

See Arizona v. Freeland, 863 P.2d 263 (Ariz.Ct.App. 1993).

Other jurisdictions have similarly found that a victim's failure to wear a seat belt is not sufficient to supersede a criminal defendant's conduct in causing the victim's injuries or death. Thus evidence relating to the use or nonuse of safety restraints is excluded.

Iowa — State v. Hubka, 480 N.W.2d 867, upheld the trial court's hearing on a State Motion in Limine to preclude the testimony of seat belts. Alaska — Panther v. State, 780 P.2d 386, trial court did not err in refusing to instruct the victim's failure to use seat belt could be considered. Florida — Union v. State, 642 So.2d 91, victim's failure to wear seat belt was not a defense. Michigan — People v. Clark, 431 N.W.2d 88, trial court did not abuse its discretion in ruling that evidence of victim's failure to wear seat belt was inadmissible. New Mexico — State v. Myers, 536 P.2d 280, Contributory Negligence is not a factor in determining proximate cause in prosecution for Vehicular Homicide as a result of passenger not wearing a seat belt. Vermont — State v. Dodge, 567 A.2d 1143, victim's failure to wear seat belt may arguably be a proximate cause of his death, it was not an intervening cause. West Virginia — State v. Nester, 336 S.E.2d 187, fact that victim did not wear seat belt was not intervening cause such as would break causal connection. Ohio — State v. Mitchell, 586 N.E.2d 196, didn't allow testimony of seat belts into evidence but based on statute prohibiting such testimony. Georgia Whitener v. State, 410 S.E.2d 796, victim's failure to wear seat belt could play no role in determining whether defendant was guilty. Wyoming — Allen v. Wyoming, 43 P.3d 551, a victim's failure to wear a seat belt does not supercede a criminal defendant's causal responsibility. Connecticut — Connecticut v. State, 759 A.2d 142, court properly excluded the evidence that victim was not properly wearing seat belt. Arizona — State v. Freeland, 863 P.2d 263, the testimony of victim's failure to wear a seat belt was presented, but over the defendant's objection, the Court instructed the jury as follows:

1. Contributory Negligence on the part of victim is not a defense in this case.
2. Arizona Law does not require that seat belts be used by adults.

The Appellate Court then held that the victim's failure to wear a seat belt does not supercede the defendant's causal responsibility in criminal law.

For example, in a vehicular homicide case in Iowa, State v. Hubka, the Court justified its decision to exclude evidence that the victim was not wearing a seat belt, noting that "a defendant cannot escape criminal responsibility for homicide merely because factors other than his acts contributed to the death, provided such other factors are not the sole proximate cause of death."

480 N.W.2d 867 (Iowa 1992).

Id. at 868.

Likewise, the West Virginia Court in State v. Nester, carefully defined the meaning of an intervening cause that would interrupt the causal connection. That language applies equally herein:

336 S.E.2d 187 (W.Va. 1985).

[T]he appellant also contends that the victim's failure to wear his seat belt was an independent, intervening cause of the victim's death. This contention seriously distorts the definition of an intervening cause. An intervening cause is a new and independent force which breaks the causal connection between the original act or omission and the injury, and itself becomes the direct and immediate cause of the injury. The fact that the victim did not take precautionary steps which may have prevented his eventual demise is not an intervening cause.

Id. at 188.

The Connecticut Supreme Court has carefully analyzed the concepts of intervening causation and foreseeability in language which applies with equal force to the circumstances herein. In upholding the trial court's exclusion of testimony that the victim had not been properly secured by a seat belt, the Court in State v. Stewart provided the following insight:

759 A.2d 142 (Conn.App.Ct. 2000).

Our Supreme Court has aligned Connecticut with those other jurisdictions on this issue. In State v. Munoz, 233 Conn. 106, 124-26, 659 A.2d 683 (1995), the court stated with reference to the doctrine of intervening cause that it "serves as a dividing line between two closely related factual situations: (1) where two or more acts or forces, one of which was set in motion by the defendant, combine to cause the victim's injuries, in which case the doctrine will not relieve the defendant of criminal responsibility; and (2) where an act or force intervenes in such a way as to relieve a defendant, whose conduct contributed in fact to the victim's injuries, from responsibility, in which case the doctrine will apply . . . Every person is held to be responsible for the natural consequences of his acts, and if he commits a felonious act and death follows, it does not alter its nature or diminish its criminality to prove that other causes co-operated to produce that result."
This case clearly falls under the first category where two acts could have combined to cause the death. If the child's seat belt was not properly fastened and the seat itself was not properly secured in the car, such circumstances may have combined the defendant's act to cause the victim's death. As the court pointed out in Munoz, an independent, intervening force must do "more than supply a concurring or contributing case of the injury." State v. Munoz, supra, 233 Conn. at 313, 124, 659 A.2d 683. It must be "unforeseeable and sufficiently powerful in its effect [such] that it serves to relieve the defendant of criminal responsibility for his conduct." Id. Because the evidence was irrelevant, it properly was excluded by the court.

Id. at 148, 149.

The point of the foregoing decisions is that two or more persons, factors, or things may operate at the same time, either together or independently, to cause harm. In the Court's analysis, each of the participating acts or omissions is considered to be a cause of the result. But to constitute an act that is sufficient to interrupt the original negligence, the act must be substantial and unforeseeable.

The defendant's negligence in this case, if any, consisted of driving his vehicle at 74 mph, with a .072 BAC reading. Those factors constituted a substantially greater cause of Andrew Wilkie's death than the victim's own failure to buckle up. Indeed, the State has aptly analogized the defendant's argument by commenting in its brief that "defendant's argument that Andrew's death was caused by his failure to wear a seat belt is like a murderer's argument that his victim's death was caused by his failure to wear a bullet proof vest."

State v. Nester, 336 S.E.2d 187, 188 (W.Va. 1985).

In the final analysis, the victim's negligence, if any, cannot negate the culpability of the defendant, even for the resulting tragic death that occurred. For purposes of the causation scrutiny, it does not really alter this Court's decision in this case to assume that both parties were negligent in contributing to the car accident. In order for the defendant to be found guilty, his negligence need not be the sole cause of the collision nor does the victim's conduct relieve him of criminal responsibility. The fact is that the accident would not have occurred but for defendant's fast driving, drinking, and losing control of his vehicle. The fact that a passenger was injured and died, seat belt or not, was entirely foreseeable under the circumstances.

Fioretti, 245 A.2d at 171; Drake, 1986 WL 28363; Vannicola, 1991 WL 139419.

Conclusion

For the foregoing reasons, the expert testimony proffered by defendant on the issue of seat belts is hereby deemed inadmissible as irrelevant. The State's Motion in Limine is therefore hereby GRANTED.

IT IS SO ORDERED.


Summaries of

STATE v. KANG

Superior Court of Delaware, New Castle County
Jul 15, 2002
I.D. No. 0010013244 (Del. Super. Ct. Jul. 15, 2002)
Case details for

STATE v. KANG

Case Details

Full title:STATE OF DELAWARE v. BO R. KANG, Defendant

Court:Superior Court of Delaware, New Castle County

Date published: Jul 15, 2002

Citations

I.D. No. 0010013244 (Del. Super. Ct. Jul. 15, 2002)