The Yale Law Journal

February 2016

Tort Concepts in Traffic Crimes

Criminal Law

Car crashes killed 32,719 Americans in 2013, and injured over 2.3 million more.1 Traffic is likely the 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.

I. 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 long-term 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.

II. 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 drafter29 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 homicides32—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 negligence is about what a defendant does—failing to exercise due care—while criminal negligence is about how he does and perceives it. The statutory definition of criminal negligence clarifies this distinction further. In New York, which follows the MPC, criminal negligence exists when a person “fails to perceive a substantial and unjustifiable risk” and that risk is such that “the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”38 Criminal negligence concerns the failure to perceive a particular risk, specified elsewhere in a statute, whereas tort negligence involves acting riskily in general. While this distinction is not absolute—tort negligence includes an inquiry into the foreseeability of harm, which considers perception, for example39—it captures the basic difference. As Kenneth Simons has written, tort “understands negligence as unreasonably unsafe conduct,” while criminal law “emphasizes a different, cognitive conception of negligence.”40 By eliminating the mens rea requirement for failure to yield and replacing it with the element of “failure to exercise due care,” the Right of Way Law thus eliminates the criminal, cognitive conception of negligence and replaces it with tort law’s conduct-based conception.41

Finally, advocates who helped draft the Right of Way Law intended it to shift the burden of proof for the key element of the crime and celebrated the law’s “presumption of criminality.”42 Under this interpretation of the statute—which has been contested43—the prosecution’s prima facie case would require showing only that a driver failed to yield and caused injury. Often, these elements are not even disputed. The main subject of debate—whether the driver was tortiously negligent—would be an affirmative defense that the defendant must establish. Thus, the state would not need to prove this essential element of the Right of Way Law beyond a reasonable doubt, as with a paradigmatic crime.44 Rather, a preponderance of the evidence standard would suffice, as in tort.45 Even if courts do not ultimately adopt this burden-shifting interpretation, the effort to use it illustrates a comfort with a tort-like regime for right-of-way violations.

Notably, even Right of Way Law opponents use tort concepts to argue against the statute, showing how deeply ingrained tort concepts are in the social understanding of traffic crashes. The Right of Way Law expands drivers’ criminal liability and has proven controversial, particularly among bus drivers. For example, one city-council member, a former bus driver, attacked the law for “treating [bus drivers] as criminals when such accidents occur.”46 This language, common among the Right of Way Law’s opponents, classifies traffic crashes as accidents, a central concept in tort,47 while further suggesting that accidents cannot be crimes. The opponents are essentially arguing that the Right of Way Law has improperly redrawn the boundary between tort and crime, and that traffic crashes should generally fall on the tort side of the line.

Similarly, bus drivers have sought an exemption from the law because when driving they are “doing their duty.”48 This argument evokes the doctrine of qualified immunity, which shields public officials from tort damages to ensure that they can provide public services.49 However, qualified immunity does not protect officers from criminal liability.50 These duty-based arguments for an exemption thus operate in the framework of tort, not criminal law—even though bus drivers argued against incorporating tort standards into criminal law. Everyone debating this criminal statute seems to speak the language of tort. And, as the next Part demonstrates, certain tort doctrines appear in traffic crimes even where the legislature has not incorporated them.

III. law enforcement: contributory negligence

The executive branch has also conflated tort and crime—and without legislative prompting—by importing something akin to the tort doctrine of contributory negligence into its response to crashes. Here, the effect is to exonerate motorists. Thus, it is not merely one political coalition that seeks to treat traffic crashes as torts: both those looking to punish drivers and those looking to protect them draw on tort concepts. In the midst of political conflict over the punishment of dangerous drivers, there exists a deeper consensus that tort provides an appropriate conceptual framework.

In tort, contributory negligence sharply limits a plaintiff’s ability to recover if she herself acted negligently.51 Though softened by the modern shift to comparative negligence, in which victim fault merely reduces a tortfeasor’s liability, the doctrine continues to require the examination of both parties’ conduct in tort cases. Criminal law has uniformly rejected contributory negligence doctrines.52 As Judge Posner has written, “Victim fault is not a defense, either partial or complete, to criminal liability.”53 Notably, contributory negligence is not a defense even to crimes of negligence or vehicular cases.54 This distinction reflects the underlying purposes and structures of criminal and tort law. Tort uses contributory negligence because tort reallocates losses from plaintiffs to defendants; both parties’ behavior is at issue. In contrast, criminal punishment is a matter between the state and the defendant; generally only the defendant’s behavior is relevant.55 Meaningfully, victims are not even parties to criminal proceedings.

Even so, the New York Police Department (NYPD) has repeatedly imposed a contributory-negligence regime in its traffic-crime investigations. The NYPD has routinely inquired into victim fault and, whenever such fault is present, has exonerated the drivers.56 This de facto system resembles not merely modern comparative negligence but the more severe common-law contributory-negligence regime. For example, in 2011, truck driver Leonardo Degianni struck and killed cyclist Mathieu Lefevre, and then fled the scene. In its investigative report, the NYPD noted that Degianni failed to signal before turning into Lefevre.57 The report added, though, that Lefevre “should not have been passing on the right side.”58 Finding “error” by both parties, the NYPD closed the case.59 Similar NYPD determinations of victim fault are routinely leaked to the press.60 For example, the police (incorrectly) blamed Allison Liao, a three-year-old accused of breaking free from her grandmother, and Jean Chambers, accused of talking on her cellphone, for their own deaths.61

The police are the worst offenders in imposing their own contributory-negligence regime, but some prosecutors have done the same. In New York, Brooklyn District Attorney Kenneth Thompson has argued that “there’s a greater role for district attorneys to play in keeping our streets safe,” because “[q]uite often, the victim is blamed for the incident without a real full-blown investigation.”62 In one infamous case, Manhattan prosecutors negotiated a generous plea bargain with a drunk driver who killed a pedestrian, pointing to the victim’s own intoxication as an explanation.63

These examples point to a systematic practice by law enforcement: rather than looking only at whether the driver’s behavior passes the threshold of criminality, prosecutors and police compare the fault of drivers and victims. This is permissible prosecutorial discretion, but it again illustrates the power of tort concepts in the traffic context. This introduction of tort concepts shifts the very subject of the criminal law’s inquiry off of defendants and onto victims. By effectively introducing a new party into criminal proceedings, contributory negligence defies the conception of criminal law as based on the defendant’s moral culpability—after all, two wrongs do not make a right. Practically, it strips the protections of the criminal law from victims who themselves may err. And police and prosecutors apply this de facto contributory-negligence regime broadly in traffic crimes—including, as shown in this Part, in the essentially criminal context of homicides. Across the domain of traffic crashes, therefore, contributory negligence is making criminal prosecutions look much more like tort.

IV. the courts: negligent homicide

While the courts are, unsurprisingly, generally attentive to the tort/crime line, even the sophisticated New York Court of Appeals has slouched toward tort when deciding traffic crime cases. In the process, it has redefined the entire law of criminal negligence: first, to emphasize conduct over cognition, and second, to empower judges rather than legislatures to determine what conduct is prohibited.

Although New York, following the MPC, grades homicides based on mens rea, the New York high court has introduced into its criminally negligent homicide jurisprudence a new and unusually prominent inquiry into conduct. Criminally negligent homicide is defined in New York as causing the death of another person with the mens rea of criminal negligence.64 As described in Part II, criminal negligence traditionally emphasizes a defendant’s state of mind—it is a mens rea element, defined as the failure to perceive a risk—not her actions. While the MPC definition of criminal negligence also implicitly requires an inquiry into conduct through the requirement that the unperceived risk be “substantial and unjustifiable,” cognitive elements are central, as befits a mens reaelement.65 However, in an area of law made in cases involving traffic crashes,66 the New York Court of Appeals has repeatedly found conduct, rather than cognition, to be determinative.

The pivotal case was People v. Boutin, which involved a truck driver who, on a foggy night, failed to see a parked “police car, with emergency lights flashing,” and a tractor trailer on the highway.67 The court held that Boutin’s failure to perceive the risk of killing someone was not criminal negligence. “[U]nless a defendant has engaged in some blameworthy conduct creating or contributing to a substantial and unjustifiable risk of death, he has not committed the crime of criminally negligent homicide,” wrote the court. “[H]is ‘nonperception’ of a risk, even if death results, is not enough.”68

This interpretation of the MPC marked a significant change in New York’s criminal law: it deviated from the statutory definition of criminal negligence, which focuses on risk perception, in order to emphasize conduct, the traditional measure of negligence in tort. This shift has appeared in negligent-homicide cases before the New York Court of Appeals, each of which has looked at the driver’s conduct, rather than his state of mind, to determine negligence.69 The shift has also been evident in the lower courts, where prosecutors have identified Boutin’sredefinition of criminal negligence as a substantial new obstacle, distinctive to New York, in prosecuting those who kill with their cars.70

To be sure, some inquiry into whether the risk-creating conduct was substantial and unjustifiable is required by the statute, but this significant shift toward conduct is not in fact inherent to the MPC’s definition of criminal negligence. The Oregon Supreme Court, for example, expressly declined to adopt Boutin’s reasoning. It explained that Boutin adds requirements not present in the text of the statute and, in particular, “shift[s] attention away from the elements identified in the definition of criminal negligence,” including “the lack of awareness of risk.”71 As the Oregon court pointed out, the relevant “blameworthy” conduct, for the legislature, was killing a person; beyond that, only mens rea was required.72 In Boutin,the New York Court of Appeals imposed a judicially created “heightened standard”73 for criminal negligence, one that elevated tort’s conduct-based conception of negligence above the existing criminal definition focused on risk perception.74

Since Boutin, the New York Court of Appeals has blurred the lines between criminal and tort conceptions of negligence further still. In a 2008 case, People v. Cabrera, a speeding teenager lost control of his vehicle around a curve, killing three passengers.75 The New York Court of Appeals continued to emphasize blameworthy conduct as essential to criminal negligence, distinguishing between “noncriminal failure to perceive risk” and “criminal risk creation.”76 The court then went even further, holding that only specific forms of risk creation are sufficient for criminal negligence. Speeding, according to the court, only gives rise to negligence when combined with other blameworthy acts, such as running a red light.77 With such parsing of behaviors, Cabrera doubled down on a regime in which conduct, not cognition, is made central to criminal negligence.

Additionally, Cabrera shifted criminal negligence towards tort in another way: the court held that criminal negligence required not merely blameworthy conduct but “morally blameworthy” conduct.78 Practically, this addition made proving criminal negligence still more difficult, as it required that the behavior in question be “seriously condemnatory” even beyond the fact that it caused death.79 In one sense, the “morally blameworthy” requirement likely reflects an attempt to reimpose criminal-law norms:a focus on moral culpability is quintessentially criminal.80 But in so doing, the “morally blameworthy” requirement simultaneously undoes another of criminal law’s core features: that the legislature, not the courts, specify what wrongful conduct is.81 The search for morally blameworthy conduct not specified in the statute requires judges to define duties in criminal law, just as they do in tort. Having brought tort concepts into criminal law in Boutin, the Cabrera court attempted to undo the damage. But because the court did not abandon its emphasis on wrongful conduct—an emphasis traditionally foreign to criminal negligence—it may have only created more problems. Once tort concepts enter criminal law, they cannot easily be cabined.


The repeated appearance of tort concepts in traffic crimes reveals much about the line between torts and crimes. It both demonstrates a blurring more profound than in other areas of law and empirically hints at where the line between tort and crime actually lies. The appearance of torts throughout the law of traffic crimes not only illustrates the scholarly concerns over the erosion of the tort/crime line discussed in Part I, but also shows more profound challenges to the division between tort and criminal law. First, existing scholarship has focused on the border areas between the domains of criminal law and tort law.82 This Comment, in contrast, has shown how traditional criminal law—up through homicide, the archetypal crime—is transformed in the particular substantive area of car crashes. Those transformations, which include both the reorientation of criminal law away from defendant culpability and toward scrutiny of victim behavior and the redefinition of a concept as fundamental as criminal negligence, then ripple across criminal law. This is change at the very core of criminal law.

Moreover, traffic crime presents a different institutional story than, for example, administrative sanctions. In the conventional telling, legislatures drive criminal law toward tort.83 Further, courts traditionally see themselves as defenders of the line between civil and criminal law.84 But with respect to traffic crimes, law enforcement and courts independently erode the tort/crime line, and do so without statutory instruction. Tort concepts are variously used to expand and contract drivers’ legal liability. Each branch, for its own reasons, treats traffic crimes like torts, and does so in diverse ways.

The participation of the courts and the police casts the blurring of the tort/crime line in a different light by showing that an entire area of human activity appears to resist criminalization. It reveals that legal actors in all three branches of government—and those trying to increase or decrease criminal liability for drivers—see car crashes as more naturally compatible with tort than criminal doctrines. Even legal scholars use car crashes as emblematic, “pure” examples of torts.85 We all turn toward tort techniques and away from the traditional forms of criminal law when addressing traffic crashes, even as we are comfortable with crimes of negligence generally.

At least three hypotheses provide plausible explanations for why car crashes are so commonly understood as tort-like, and they may point to where the underlying line between torts and crimes has been drawn. First, there may be a shared sense that we cannot do more than price the harms from automobiles, which are both inherently risky and socially invaluable.86 Even leading supporters of sustainable transportation connect driving with economic activity.87 To the extent that traffic crashes are seen as inevitable costs of a necessary activity, tort’s regime of loss allocation is more appropriate than criminal law’s prohibitions. Second, the difference between a speeding driver killing a child and that same driver proceeding uneventfully is often nothing more than luck, a few feet, or a few seconds’ difference.88 The criminal law’s moral reprobation may therefore fit uncomfortably.89 While moral luck is a problem across criminal law,90 the ubiquity of the problem in the driving context may make the issue more salient: close calls are part of most drivers’ felt experience, and many (including legislators, law-enforcement officers, and judges) would recoil from seeing themselves as nearly criminals.91 Third, car crashes have long been the subject of concerted cultural campaigns, by groups such as Mothers Against Drunk Driving or the American Automobile Association, to stigmatize and destigmatize unsafe driving.92 The consistent turn to tort concepts may demonstrate the victory—politically and historically contingent and not tied to inherent features of either driving or the tort/crime line—of those who have sought to normalize the violence brought by the automobile. To the extent that criminal law, and not tort law, is about moral desert, culpability, and punishment, these cultural battles are, effectively, over whether traffic crashes are subjects for criminal sanction; the tort/crime line is, to some extent, culturally constructed rather than economically or legally fixed.93

For some combination of these three reasons—and perhaps others as well94—car crashes are perceived as tort-like, even by those drafting, interpreting, or enforcing criminal law. Tort concepts consistently, perhaps inevitably, echo throughout the law of traffic crimes. The underlying subject matter drives all three branches of government to reshape essential features of criminal law in the image of tort. As this Comment has shown, this makes traffic crimes a particularly important site for both contesting and understanding the tort/crime line: one with high stakes for the entirety of criminal law, not to mention for the millions injured in car crashes every year who seek the protection and vindication of the law.