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August 9, 2010

Is Ohio (and the common law) not tough enough on negligent vehicular homicide?

The question in the title of this post is one inspired by this local story from the Columbus Dispatch, and one I am now planning to ask first-year students in my Criminal Law section later this month.  The story is headlined "To widow, sentence highlights unfairness: Tough penalty urged in vehicular deaths," and here are the details:

Richard Crabtree was killed Feb. 1 in a car accident.  He left behind a wife and three children. The police found the witnesses to her husband's death and brought charges against the young man who ran a red light and killed him.

The prosecutor secured a conviction on the most-serious charge. The judge's sentence was as tough as the law allows. Jenny Crabtree knows and appreciates all of that. But in the matter of the state of Ohio v. Steven J. Tirpak, she also will argue that justice -- for her, her husband, their three children -- was not served.

"Our lives are totally destroyed, forever; and he got 90 days in jail," the Westerville woman said.

Richard Crabtree left work early on Feb. 1 to meet his two older daughters, now 6 and 10, at the school-bus stop. Just before 4 p.m., Crabtree and a driver ahead of him were in the middle of the busy intersection of Polaris Parkway and Worthington Road, waiting to turn left to head north on Worthington.  The light turned red.

"Mr. Crabtree had already entered the intersection," Detective Sgt. Steve Fridley of the Westerville police said.  "You have the right to clear that, once everything's stopped.  The other vehicle, for whatever reason, ran the red light."

The other vehicle was driven by Tirpak, then a 20-year-old Galena man with a history of speeding and criminal convictions for such offenses as theft and possession of drug paraphernalia.

Tirpak never accepted blame for the crash, Fridley said.  He insisted the light was yellow when he broad-sided the 46-year-old Crabtree, killing him.  "Fortunately for us, we had multiple witnesses" who verified the light was red, Fridley said.

Tirpak wasn't under the influence of drugs or alcohol, and he had a valid driver's license.  A review of the evidence left police with two charges, vehicular homicide and vehicular manslaughter. Both are misdemeanors.

In June, Tirpak pleaded no contest to vehicular homicide, which is the more-serious charge and is punishable by up to 180 days in jail and a $1,000 fine.  Judge David P. Sunderman found him guilty in Delaware Municipal Court.

Sunderman, who declined to be interviewed for this story, sentenced Tirpak last month to 180 days in jail with 90 days suspended, which allowed the court to have further control over him by placing him on five years of probation.  He also was fined $1,000, sentenced to community service and lost his driver's license for five years.

"He got the max," said Peter Ruffing, city prosecutor for Delaware. "The judge threw the book at the kid," Jenny Crabtree acknowledged.

When the crash occurred, she prayed that the other driver would be remorseful and otherwise law-abiding.  She could make peace with that.  But Tirpak has a record of not abiding the law, and he did not apologize. He did not even look at her as she talked about her loss at sentencing. "What I got was the exact opposite," she said....

Because of her experience, Crabtree intends to lobby state lawmakers to strengthen vehicular-homicide punishments in Ohio.  Ruffing would not speak about the Tirpak case in any detail.  He said it is his job to uphold existing laws, not to criticize them or lobby that they be changed, as Crabtree hopes to do. "That's certainly an understandable position by a widow," he said....

Crabtree said the six months since her husband's death have been financially and emotionally crippling. She looked into a civil lawsuit, but Tirpak has no assets.  She can expect only $12,500 from his insurance company.

There is a bit of an anachronism in the question in the title of this post because vehicular homicide crimes were largely unknown to the early common law (even though it was surely possible to kill a pedestrian while driving negligently a horse-and-buggy).  But the common law did generally confront the issue of merely negligent killings and generally concluded [in the US] that such killings should not and could not lead to any homicide charges.  [In most US jurisdictions before modern reforms, recklessness or extreme negligence was needed to make a matter criminal.[

Because Ohio has statutory provisions that make reckless killings a felony, I am assuming that prosecutors in this case concluded that they would only be able to prove that the deadly driver Steven Tirpak was driving negligently when he caused a fatal accident.  [A reader rightly notes that Ohio still requires a form of gross negligence for criminal liability, though the standard is set forth in language not quite as strong as was at common law.]  That suggests that the victim's family should be at least by thankful that Ohio has not merely codified common-law homicide rules.  If it had, it is possible Mr. Tirpak might not have been subject to any criminal prosecution at all.

UPDATE:  In response to helpful comments, I have tweaked the commentary in this post to be more accurate.  Most of the tweaking appears in brackets above.

STILL MORE: I see that Scott Greenfield has an interesting new post here at Simple Justice discussing this case.

August 9, 2010 at 10:46 AM | Permalink


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"But the common law did generally confront the issue of negligent killings and generally concluded that such killings should not and could not lead to any homicide charges."

Really? That's not how I read 4 W. Blackstone, Commentaries 192-193 (1st ed 1769).

Posted by: Kent Scheidegger | Aug 9, 2010 11:27:44 AM

I think the first sentence says it all: "Richard Crabtree was killed Feb. 1 in a car accident." I'm not sure if there is a bright line between negligence and recklessness in Ohio law, but the cops found this guy didn't cross it. Accidents happen. Sometimes they cause death. That doesn't make it something other than an accident. His remorse or apparent lack thereof also doesn't change this from an accident to something more.

Posted by: Ala JD | Aug 9, 2010 11:29:59 AM

I agree with Ala JD's general point. Having driven in Ohio for years, I fear that our prisons would be incapable of holding all the new prisoners if we criminalized accidents due to stupid driving.

I'm not convinced that this is a case of merely negligent homicide, however. Crabtree was the second car in the intersection, and both turned left after the light turned red. This means that Tirpak would have driven through the red light after one car had already turned in front of him, followed by another.

In my view, seeing a car turn in front of you, and nonetheless accelerating to go through a red light, is textbook recklessness--especially given that the Polaris Parkway/Worthington Road intersection is a very large one with great visibility in all directions, which means Tirpak had to see both cars in the intersection as he was approaching.

Posted by: Res ipsa | Aug 9, 2010 12:56:19 PM

what i though was cute if dumb was this statement!

"Sunderman, who declined to be interviewed for this story, sentenced Tirpak last month to 180 days in jail with 90 days suspended, which allowed the court to have further control over him by placing him on five years of probation."

so by suspending 1/2 of a 180 day sentence they can force him on probation for 5 YEARS?

what if he does the smart thing this time and tells the court to shove their kind offer up their ass?

After all EVERYONE knows probation is simply a cheap illegal way to convict someone you don't have enough evidence to take to court for a REAL trial.

Posted by: rodsmith | Aug 9, 2010 3:15:54 PM

Speaking only for Alabama of course, recklessness requires at least some knowledge of risk that the result (in this case death) would occur and a gross deviation from a standard of conduct. My own driving experience is that lots of people run red lights and are even the second person through and that this rarely results in death. Negligent, yes. Criminally reckless, no. (And I am stating this as someone who was recently creamed by a driver barreling through a light that had long been red. Never even occurred to me to press criminal charges, even though she was under-insured which caused me to have to eat some of the damages.)

Posted by: Ala JD | Aug 9, 2010 3:55:54 PM

Perhaps the US needs to move toward a stricter licensing scheme before allowing people to drive? I certainly wasn't ready to actually drive unsupervised when the state issued my first unrestricted license.

Unfortunately experience has also shown that a fair slice of the worrisome population will drive regardless of being licensed or not.

And yeah, if I were going to do 90 days anyway and the most they could give me was 120 I don't think I would take five years probation either.

Posted by: Soronel Haetir | Aug 9, 2010 4:29:32 PM

Kent, you are right that my statement about the common law and negligent killings was too broad and imprecise and thus arguably misleading. The full tale is complicated, with lots of different common-law examples with lots of different terminology, as explained in the MPC commentaries on this issue. I do think it is fair to say that "generally" the common law in the US required GROSS negligence and/or something significantly more than traditional civil negligence for homicide liability. See, e.g., 1944 Welansky case from SJC Mass; Dressler, UCL treatise, 3d edition, at pp. 537-38.

Sorry for any confusion.

Posted by: Doug B. | Aug 9, 2010 7:20:33 PM

The plea and the facts, as reported in the story, don't fit. There must be quite a few details missing. I find it a bit odd that Tirpak pleaded to any charges at all if the light was yellow when he crossed the intersection, as he claims. If Tirpak's light was yellow when he crossed then Crabtree had to have been sitting in the middle of the intersection with a red light for a fairly long time or moved into the intersection after the light was red.

Maybe Tirpak pleaded to this charge to avoid prosecution for some other, wholly unrelated, crime.

In any case, barring any malice aforethought, I think treating it as a civil matter is a better way to go. No jusice is done for the victim's family or anyone else by jailing Tirpak. States would find it a better use of resources stripping dangerous drivers of their licenses and implementing stricter punishments for driving without a license. Stricter doesn't necessarily mean jailtime.

Posted by: Jardinero1 | Aug 9, 2010 7:44:13 PM

123D. Crabtree was killed by the lawyers protecting Tirpak, as if they put a gun to his head. Tort liability should apply to them, their employers, and their law professors, who indoctrinated them lawlessly into protecting the career criminal.

By changing the law, you will be penalizing people who just made a bad mistake at the wrong time. How about going after the actual threat to our survival on the road, the criminal lover lawyer.

Posted by: Supremacy Claus | Aug 9, 2010 8:02:24 PM

Supremacy Claus - What are you going to do when you need a "criminal lover lawyer"?

Posted by: Jardinero1 | Aug 9, 2010 8:28:41 PM

Wave a check for $10,000. I will be surrounded as if by a pack of wild dogs while holding a juicy raw steak.

Posted by: Supremacy Claus | Aug 9, 2010 8:37:49 PM

Ohio DOES require gross negligence before you can be convicted of negligent homicide. The statute in question is 2901.22(D) which defines negligence (in a criminal setting) as a "substantial lapse from due care, he fails to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature."

Under traditional tort law, the negligence is merely defined as falling below the standard of care. Negligence in a criminal setting requires a "substantial" lapse.

Incidentally, a person acts in a "reckless" manner when "with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature." R.C. 2901.22(C).

Posted by: '97 OSU Grad | Aug 9, 2010 9:59:42 PM

You are right on Ohio's approach to criminal negligence, '97 OSU Grad, and so I am now fully convinced I need(ed) to improve the language in the body of this post to be more precise. I have now done so. Thanks.

Posted by: Doug B. | Aug 10, 2010 10:00:23 AM

"Perhaps the US needs to move toward a stricter licensing scheme before allowing people to drive?"

By all means, Soronel. We should let no unfortunate accident pass without seizing the opportunity to impose stricter schemes on the populace.

Posted by: John K | Aug 10, 2010 11:26:14 AM

In the two wheeled world of Bicycles and Motorcycles, we are very concerned about sentencing in negligent vehicular cases. As probably the most vulnerable users of the roadway, we see motorists "get off" with minimal slaps on the wrist in typical right of way cases all the time. When a Humvee rearends an F150, they argue over paint scrapes and bent fenders. When a VW Bug rearends a cyclist, the consequences are frequently tragic. Sentencing options are limited and the results don't come into play.

In death cases, sometimes we see a prosecutor with the cajones to go after the more serious charges, sometimes not. It really seems to depend on whether they can portray the defendant as a "bad guy" or not .

In Cincinnati, Anthony Gerike is serving 16 years for killing two cyclists early on a Sunday morning when he drove on a suspended license with alcohol, pot and coke in his system. That's an easy call, eh? Bad guy. In Pike County, Sara Bender drove through the rain on U.S 23 and smashed into something, which caused a huge indentation in her passenger side window. She kept going, leaving Dr. William Crowely to die on the side of the road. There was no evidence of alcohol or drugs and she seemed like a "nice" person. She was prosecuted on a felony "leaving the scene" charge, and the jury knocked it down to a misdemeanor. She was sentenced to 60 days, but I'm not sure she served a day.

In the U.S. some 700-800 cyclists will die on the roads this year. More than half will be the fault of a motorist. Several of us on Facebook are trying to publicize as many news stories as we can find about these, but sentencing in these cases remains spotty. In California, an E/R doc gets 5 years for intentionally causing a crash which injures two cyclists in a 'road rage' setting. In Texas a popular TV personality gets 2 years for killing two cyclists while on his way home from a Saturday night party early on Sunday morning...

In Indiana, June 9, 2007, three separate car/motorcycle crashes occurred with a few miles of each other and within an hour or so of each other. In each case a relatively young motorist caused death and injuries by doing something stupid, careless, in motor vehicle. In EACH CASE, the prosecutor, or police, said, "WE DON'T PROSECUTE NEGLIGENCE IN INDIANA" and that was that... minor tickets for six deaths, 3 in one crash, 2 in another and 1 in the 3rd, with a brain damaged passenger.

"Negligent" vehicular homicide needs to be both recognized and punished in a way that shows the seriousness of the crime and provides some measure of "justice" to the families of the victims.

Until we treat driving a car like shooting a gun - i.e., one minor "goof" and someone gets killed - the law will remain unfair in Ohio and around the country.

Steve Magas
The Bike Lawyer
OSU College of Law 1982
plaintiff's lawyer

Posted by: Steve Magas | Aug 14, 2010 3:08:57 PM

Obviously you people have absolute no right what so ever to even write an offensive article about this man. It is very offensive to him and his family. And Obviously the reason why he wouldn't look at that man's wife is because he couldn't look at her. He called me from the hospital that day balling his eyes out. He most defiantly felt extremely horrible for ACCIDENTALLY doing something like this. Everyone makes mistakes, he didn't do this intentionally. So i feel he shouldn't of been charged with anything. You people should feel ashamed of yourselves going so low by talking about him this way

Posted by: Annoymous | Aug 23, 2010 12:49:40 AM

Everyone has so much to say, but until it's your son, daughter, brother, sister, mother or loved one-you can't even begin to speak on it. Let someone kill your loved one then go to the corner store and see them smiling and laughing with thier loved ones 3 months later then tell me how you feel.

Posted by: victim | Oct 12, 2010 11:57:58 PM

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