How Negligence Could Land You In Prison

by Neil S. Siskind, Esq.

Section 120.00 Assault in the third degree.

A person is guilty of assault in the third degree when:

1. With intent to cause physical injury to another person, he causes

such injury to such person or to a third person; or

2. He recklessly causes physical injury to another person; or

3. With criminal negligence, he causes physical injury to another

person by means of a deadly weapon or a dangerous instrument.

 Assault in the third degree is a class A misdemeanor punishable by up to 1 year in jail.

               With regard to number 3 above, below is the definition of criminal negligence from
 the New York Penal Code:

"Criminal negligence." 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. 


  
               So while a person can be found guilty of assault in the 3rd degree if he or she
intentionally or recklessly causes injury to another, under the New York statute there
can also be criminal liability for negligence if the definitional standard is met.

               Negligence is the failure to act reasonably. But we all fail to act reasonably at times. And in unfortunate cases, it could lead to harm. Should we go to prison in such cases? If every time we acted unreasonably we went to prison, we would all spend time behind bars. Even if we go to prison only when our unreasonable behavior actually causes injury, we may all still be imprisoned at some time in our lives. We, as a society can accept that if our unreasonable behavior causes harm to another we should be financially responsible for their related expenses. As a society, we can even accept that if we caused a person to suffer, we should compensate them for that pain. But how could all unreasonable behavior that causes unfortunate harm be a criminal act? That seems extreme, since again, we all act unreasonably at times.

               Take solace in the fact that the threshold for unreasonable behavior leading to criminal responsibility is far higher than the civil negligence standard. Though we always have to look to each state’s statute to determine the actual standard, this is a generally true across the country. Under the New York Penal Code, for “criminal” negligence, as opposed to “civil” negligence to be found, an action has to have a “substantial” risk of harm and the act has to be a “gross” deviation from reasonable behavior. The civil law does not require “gross” deviation from reasonable care, it just requires a simple deviation. The civil law does not require a substantial risk of harm from behavior. Again, it just requires a simple deviation from reasonable care. Perhaps most importantly, the greatest delineation between civil and criminal negligence is the requirement that for criminal negligence to be found, a deadly or dangerous instrument must be used to cause the harm.  A jury or prior case law will determine what is considered a dangerous weapon. The overall circumstances under which the injury occurred may have some influence on the determination. For instance, while a gun is always a deadly weapon, a baseball bat’s danger level will be determined by how substantially risky the behavior was. 

Here’s an example:

Bob, a 30 year old man, was using a baseball bat to hit rocks into a school playground on a Wednesday afternoon. A child is hit by a flying rock and injured. In this case, the behavior may be found to have been grossly unreasonable and created a substantial risk of harm, but the dangerous weapon aspect may not exist. The baseball bat did not really cause the harm. The rocks caused the harm. Bob could have been using a tennis racket to launch the rocks. As for the rocks, it could be hard to convince a jury that these are the dangerous weapons that the statute contemplates. Thus Bob may be found to be financially responsible in a civil case, but may evade criminal liability for 3^rd degree assault under the New York statute. (There may be lower level misdemeanors or other lesser crimes Bob could be convicted of where jail time is not involved.)

Here’s another example:

John, 24 years old, dresses as Charles Mason for Halloween and decides to carry a baseball bat for shock value.  He sees some young kids and chases them as a joke. He swings the bat wildly, not really intending to hit anyone, but on a backswing hits an elderly woman who was walking down the street. John may be found to have engaged in grossly unreasonable and substantially risky behavior where a dangerous weapon caused injury. John may be found guilty of 3^rd degree assault against the elderly woman. If John was swinging a rope or a wiffle ball bat, the result would likely be different.

               So if you act in an unreasonable manner and another is harmed, you may get sued. Just be sure not to grossly deviate from acceptable behavior while doing an act that has a substantial risk of harm and you can avoid criminal penalties for negligent acts. How gross a deviation from reasonableness your behavior is and how substantial of a risk it poses would be left to a jury to decide. It seems like a scary proposition when set out this way, but if you think about it, you should never be engaging in grossly unreasonable behaviors that pose substantial risks of harm to others. Juries can be very fair. They realize we all act in unreasonable ways. Your action would have to be “grossly” unreasonable before you are convicted. Some may interpret this as “offensively” unreasonable. The risk of harm needs to be not only possible or obvious, it would have to be “substantial” for criminal liability to be found. On the one hand, society has a great interest in preventing grossly risky behavior. So the laws are reasonable. On the other hand, the United States does have the highest prison incarceration rate in the entire world. Is that due to many unreasonably strict laws-or many unreasonably harmful behaviors?