What is a common scenario?
It is not that uncommon after a personal injury accident for the investigating police officer to not issue any citations and in the narrative of the report to conclude this was just an accident. It could be an accidental shooting, a collision between a car and a truck or a single car rollover. When clients see the word “accident” or “accidental” written in the report many conclude there is nothing they can do. Most of the time that conclusion is unwarranted; meaning, you should not assume no one in the accident has any claim. What the police officer concludes may have no bearing on the outcome of a civil insurance case for monetary damages.
The police officer is looking at the facts of the accident through a different lens than we do in civil cases. The police enforce criminal laws and personal injury lawyers assert tort claims. A tort is a civil wrong, having little to do with the burden of proof the police have to meet in a criminal case.
Previously I had written about an accidental shooting where the police concluded it was “accidental”. I have removed that article and instead am reposting this as general instructions.
Will the police conclusion of an accidental shooting preclude a civil action?
The quick answer is, no, it doesn’t preclude a civil suit and a finding of negligence. The police are looking at whether or not the actions by Martinson were a violation of the criminal law; not civil law. Criminal law and civil law are like apples and oranges. Every crime has elements to be proven. Elements are like ingredients in a recipe. If when baking chocolate cupcakes you leave out an ingredient the cupcakes won’t bake or taste right. Proving a violation of the criminal law is similar to following a recipe in food preparation.
Elements of Crimes and Civil Actions
The elements of crimes (the criminal statutes) are different, very different, than the elements of civil rules of conduct. One element that is very different for crimes and negligence (torts) would be intent. In criminal law the person charged must intend to do the act and for most crimes the act intended is one that will or is likely to result in death, injury, fright or the deprivation of another’s property.
In the case of a shooting that results in death the likely criminal considerations could be murder or manslaughter. To commit the crime of murder actor must have a specific intent to take a life. In this case to do an act that is likely to cause death of another person. Manslaughter is doing something really dumb, like actually pointing a loaded gun at someone, but not intending to kill them. Criminal intent is vital to a successful prosecution.
But in negligence actions intent isn’t involved as an element. So a really dumb decision would more than likely meet the elements of a negligent tort. A man holding a gun that accidentally fires and kills another might not be criminal but it certainly would be considered a tort.
So, let’s look at civil laws. A jury’s evaluation of what the shooter did or didn’t do might lead them to a conclusion he was in fact negligent. A jury considers other facts, like what a reasonable man might have done in this instance. They look at the rules of the road, the driver’s actions, inactions, what a reasonable decision normally drivers’ make and whether or not the driver was acting careless. Everyone has a duty to not act unreasonably in a way that causes injury or death to another person. Put another way we all have a duty to act reasonable when we operate cars, trucks, semi-trucks, motorcycles, ATV’s, scooters or when we approach pedestrians. It all counts as to whether or not the driver is negligent.
Burdens of Proof – Civil vs Criminal
The burden of proof is the standard by which a violation of criminal or civil law must be proven. It can be thought of as the amount of evidence needed to be produced. It is different in criminal and civil cases. Criminal law violations are much higher than are civil law violations. Due to the presumption of innocence the burden of proof in criminal cases is much higher.
Think of the burden of proof as a level of proof required to demonstrate to judge and jury that your side of the argument on any given point you wish to make, is more persuasive than the your opponents. Don’t confuse the burden of persuasion for any given element with burden of proof. The burden of persuasion remains on the party whose duty it is to prove any one element.
I know it sounds like splitting hairs, but that is what law is all about, which is why anyone representing themselves has a fool for a client.
The burden of proof placed on a prosecutor to prove the defendant has violated the criminal law is beyond a reasonable doubt. On the other hand civil law violations are about negligence or fault and the burden of proof is a preponderance of evidence. A preponderance of the evidence is the greater weight of evidence. Think of preponderance of evidence as the scales of justice; just tip the scales and you win. But with the burden being beyond a reasonable doubt and you have a much tougher job in putting on enough evidence to make the elements of the crime true beyond any reasonable doubt.
And that’s the difference. In conclusion, yes there can still be a civil case by the estate of the dead man or his wife and children if the other driver or even a passenger is negligent.
If we can help you with your personal injury case, don’t hesitate to give us a call.