*Prior License Suspension Admissible, (Sometimes,) to Prove Gross Negligence.

On April 1, 2010, in a unanimous decision, People v Caban, 2010 NY Slip Op 02674, the Court of Appeals, reversed the Appellate Division, (People v Caban, 51 AD3d 455 (1st Dept 2008)) and found it proper to admit into evidence, a criminal defendant’s prior license suspension, arising from an incident with some similarities to the accident at issue, and in effect at the time of the accident at issue, to prove a charge of criminal negligence.

Criminal negligence is defined by the Penal Law § 15.05 (4):

“A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

And it has been said that “criminal negligence, … is only another name for gross negligence when it causes death or injury to life or limb” Perkins v. New York C. R. Co., 24 N.Y. 196, 205 (N.Y. 1862.) And when the evidence plainly shows … gross negligence in reckless disregard of another’s rights, punitive damages are justified. Fittipaldi v. Legassie, 18 A.D.2d 331, 335 (N.Y. App. Div. 4th Dep’t 1963.) But it should be kept in mind that some courts have held that “even where there is gross negligence, punitive damages are awarded only in “singularly rare cases” such as cases involving an improper state of mind or malice or cases involving wrongdoing to the public,” Karen S. v. Streitferdt, 172 A.D.2d 440 (1st Dep’t 1991)

The Caban Court had this to say about the introduction of the fact of the prior suspension:

“Thus the jury in this case had to consider not only whether defendant failed to perceive ‘a substantial and unjustifiable risk’ that her careless driving would kill someone, but also whether that failure was ‘a gross deviation from the standard of care that a reasonable person would observe in the situation.’ … The license suspension was relevant to this question, because a jury could find that it proved defendant to be more negligent than the other evidence showed her to be.

A jury could find that it is unreasonable to back up quickly into a crosswalk, without checking carefully to be sure that no one is in the way; but that it is even more unreasonable to do so when the state has forbidden the driver from driving at all. A jury could find that the license suspension should, if it did not keep defendant off the road, at least have prompted her to pay more attention to safety while she was driving, and that in failing to do so she deviated grossly from what a reasonable person would have done.

While a license suspension is, as a general proposition, relevant to the issue of criminal negligence, that does not mean evidence of a suspension is admissible whenever criminal negligence is in issue. Evidence, though relevant, may be excluded where “its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury” (People v Scarola, 71 NY2d 769, 777 [1988]). That danger is not present here. Defendant would have a better argument for exclusion if her license had been suspended, for example, for failure to pay parking tickets. But it was not. It was suspended for conduct frighteningly similar to the conduct that caused Francesca Maytin’s death — backing unsafely into a crosswalk. If the jury inferred from the license suspension that defendant should have known that it was unsafe for her to drive, the jury was not misled.

… When the issue is criminal negligence, a prior similar act for which defendant has been punished shows more than propensity; a defendant who is repeatedly negligent in the same way may be found to be unable or unwilling to learn from her mistakes — and thus to be guilty not just of deviation, but of ‘gross deviation,’ from reasonable care. The prior conduct is thus directly relevant to the extent of defendant’s negligence in the case on trial — to her mens rea.

The trial court did not err by allowing the fact of defendant’s license suspension into evidence.”

It is interesting to note that while the Court repeatedly speaks of the suspension having been for similar conduct, the jury did not know this, as only the fact of the suspension was admitted into evidence, not the reason why.

And when the Court spoke of how the jury might have viewed the suspension, they noted that the jury could made the finding of gross deviation solely upon the basis of the suspension, i.e. “A jury could find that it is unreasonable to back up quickly into a crosswalk, without checking carefully to be sure that no one is in the way; but that it is even more unreasonable to do so when the state has forbidden the driver from driving at all.

Also when the Court spoke of a suspension that should not be introduced into evidence, they did not speak of a non-similar moving violation, but a suspension for a non-driving reason, i.e. not paying parking tickets. So an outstanding question is, would a suspension for speeding have been admitted in this improper backing up case? I think not, for the purpose of the lack of the reason for the suspension going to the jury, was to avoid the clear prejudice that would arise, if the jury knew that the defendant had committed the same improper act before.

What I think is clear, however, is that if you have a civil case, where the operator, defendant, was driving with a suspended license, suspended for a moving violation, similar to the negligent act claimed in your case, you can claim gross negligence, seek punitive damages and introduce the fact of the prior suspension.

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