Tort concepts in traffic crimes.

• Author: Kazis, Noah M.

Car crashes killed 32,719 Americans in 2013, and injured over 2.3 million more. (1) Traffic is likely die most pervasive form of violence most Americans encounter. (2) Accordingly, the law devotes substantial attention to preventing that bloodshed, allocating losses, and punishing dangerous drivers. After a serious crash, two systems of law play particularly important roles: tort law and criminal law. (3) Both provide a mechanism for sanctioning dangerous drivers and deterring future crashes. Both can apply to the same event--any given crash is potentially criminal, tortious, both, or neither. However, tort and criminal law impose different sanctions according to different standards. After a deadly crash, for example, prosecutors may bring criminal charges under general criminal laws, like criminally negligent homicide, or traffic-specific charges, such as leaving the scene of a crash. Separately, as with any accident, victims may sue in tort for negligence. (4) Legal scholars have long understood tort and criminal law as parallel mechanisms for sanctioning private behavior. (5) Most have also sought to keep them separate. (6)

In the context of traffic crime, however, the line between tort and criminal law is blurring, as criminal law takes on significant features of tort doctrine. This Comment, using New York as a case study, identifies three areas in which that state has blurred tort and criminal law. The Comment shows that the border between tort and crime has disintegrated distinctively and dramatically in the traffic-crash context. All three branches of New York government have imported tort concepts into traffic crimes, thus redefining basic criminal-law doctrines throughout the criminal code--reaching even the law of homicide. Finally, this Comment suggests that the consistent application of tort frameworks to traffic crimes shows a shared, if unspoken, consensus that traffic crashes should be understood in the register of tort.

Part I briefly reviews the extensive literature on the distinction between tort and crime, the distinction's importance, and its erosion. Part II, Part III, and Part IV are organized institutionally to underscore how each branch of New York government is complicit in importing tort concepts into criminal law. Specifically, Part II discusses the legislative enactment of a new vehicular crime that replaces criminal law's mens rea inquiry with tort's conduct-based conception of negligence. Part II also shows that, in the ongoing debate over this new crime, both sides use tort-based rhetoric to describe how traffic crashes should be punished. Part III demonstrates that the executive branch, specifically police and prosecutors, have created a de facto regime of contributory negligence--a doctrine absent in criminal law--for traffic crimes. Part IV turns to the courts. In traffic cases, New York's highest court has redefined criminal negligence to require morally blameworthy conduct, rather than maintaining the emphasis of the Model Penal Code (MPC) on the misperception of risk. This redefinition also threatens to replace legislative specifications of criminal-law duties with a common-law, judicial declaration of proscribed behavior. The Comment concludes by arguing that, in the traffic context, the blurring of tort and crime goes deeper than in other areas of law: it bears the imprimatur of each branch of government and strikes at the heart of criminal law, not its edges. It then explores features of traffic crashes that might explain the turn to tort concepts in this context--crashes' perceived social necessity in an automobile-oriented economy, the moral luck that narrowly divides those who crash and those who do not, and the decades of political activism dedicated to shaping cultural understandings of crashes--and what they reveal about the location of the tort/crime line.

1. THE TORT/CRIME LINE

   The line between tort and criminal law plays a significant role in our legal system's self-understanding and structure. Legal education, courts, and law offices alike treat civil and criminal law separately. (7) Indeed, "every society sufficiently developed to have a formal legal system," from Rome to the present, "uses the criminal-civil distinction as an organizing principle." (8) Accordingly, scholars have long tried to explain the line between tort and crime, to defend that line, and to identify how it has been blurred. This Comment does not take a side in the normative debate about the value or proper location of the tort/crime line. Its contribution is descriptive, offering new insights into the line's present operation and location. However, scholarly literature provides the necessary context for understanding the potential stakes of those insights.

   The doctrinal differences between criminal law and tort are relatively clear: the state, not the victim, initiates criminal proceedings; criminal sanctions include incarceration; criminal sanctions are measured against the defendant's culpability (as opposed to compensation measured against the victim's injuries); and so on. (9) But what justifies those doctrinal differences remains hotly debated. The courts have not created clear, principled distinctions. (10) Scholars have therefore tried to fill this gap. Henry Hart, for example, thought only acts meriting "community condemnation" should be criminal. (11) Guido Calabresi and Douglas Melamed saw tort as a tool for permitting involuntary transfers of entitlements, while criminal law prohibits such transfers. (12)

   The consistent efforts to locate the tort/crime line reflect an underlying scholarly consensus that we ought to maintain it. Legal-process scholars believed that "a basic 'method' distinguished the criminal law," which included a focus on morally culpable mental states and legislatively detailed crimes, and that any "substantial deviation from that 'method' threatened the criminal law's legitimacy." (13) John Coffee, arguably the tort/crime line's leading contemporary defender, argued that blurring weakens the criminal law's unique role in moral education. (14) Tort law, in contrast, is seen as pricing harms rather than prohibiting them outright. (15) Others have argued that criminal law's harsher punishments as compared to tort's, such as imprisonment and longterm discrimination, require justification. (16) With notable exceptions, (17) most legal scholars agree that the law should "resist the temptation to mix and match doctrines and functions at will." (18)

   Despite that scholarly consensus, however, many have observed that, in practice, the tort/crime line has been gradually blurred in three ways. First, the use of civil penalties, particularly by public agencies, has created an analogue of criminal law--something punitive and state controlled--without the criminal law's protections. (19) Second, mass torts play an essential role in vindicating public rights. (20) Third, regulatory crimes have ballooned, creating a vastly increased number of "public welfare offenses" punishable by strict or vicarious liability. (21) Traffic crimes illustrate this blurring, but also exhibit different and deeper forms of porousness in the tort/crime line.

2. SAFETY ADVOCATES AND THE LEGISLATURE: THE RIGHT OF WAY LAW

   In 2014, the New York City Council enacted the Right of Way Law, making it a misdemeanor for a driver to injure a pedestrian or cyclist who had the right of way. (22) By design, the statute departs from criminal-law norms. First, it replaces criminal negligence, a mens rea standard, with tort negligence, a conduct standard. Second, it arguably shifts the burden of proof on negligence. (23) The law is typical of the way tort/crime blurring occurs in other areas of law: legislative action responds to perceived inadequacies in criminal law. (24) The Right of Way Law thus offers a good starting point for observing the importation of tort into traffic crime. The ensuing controversy over the Right of Way Law also shows how deeply ingrained tort concepts are when describing traffic crashes: both drafters and opponents of the law employ the rhetoric and framework of tort law.

   The Right of Way Law criminally punishes drivers who fail to yield to pedestrians and cyclists. (25) A driver causing injury is guilty of a misdemeanor punishable by up to thirty days in jail. (26) Indeed, the Law's advocates intended to increase the criminal punishment of injury-causing drivers. (27)

   Apart from this criminal sanction, however, a Right of Way Law violation resembles a tort. Most importantly, the Right of Way Law introduces strict liability, in which the standard criminal-law requirement of mens rea is eliminated. (28) As a Right of Way Law drafter (29) argued, "Meaningful driver accountability requires that we move past 'evil minds.'" (30) Yet most scholars and courts consider strict-liability crimes worrisome, if common, deviations from the norms of criminal law. They argue that criminal punishment demands the moral culpability of a guilty mind; since strict liability does not require any inquiry into a defendant's mental state or moral status, it does not belong in criminal law. (31) By enacting the Right of Way Law, the legislature created a new tier of criminal punishment for vehicular assaults-and even homicides (32)--for which it eliminated criminal law's traditional mens rea requirement. (33)

   In place of a mens rea inquiry, the Right of Way Law inquires whether the injury was caused by the driver's "failure to exercise due care." (34) This is a common definition of tort negligence, (35) and tort negligence is not a mens rea element. Tort negligence and criminal negligence serve different purposes, and the distinction between the two is not merely one of degree. In tort, negligence creates liability on its own. (36) In criminal law, negligence is a mens rea element, a mental state that must correspond to a proscribed act to prove criminal liability. (37) In other words, tort...