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What About This…? 1.2.2014

By Wayne William Cipriano

“It’s not my fault. It was an accident.”

Yes, when he encountered that icy patch at 83 mph while texting, he did not mean to slide across three lanes of traffic and head-on into that bus.

Yes, when she did those illegal drugs and punched her roommate she did not mean for her roommate to tumble over the railing and fall three stories.

Yes, when those kids drank stolen beer and lit a fire to warm up the abandoned house, they did not mean to start a conflagration that burned down a neighborhood and cost two lives.

Yes, when one of those bullets fired into the air to celebrate New Year’s returned to earth to penetrate a youngster’s skull, the shooter never meant to do any damage.

Was it the ice, the low railing, the wind, the unfortunate trajectory to blame?  Were these “accidents” be­yond anyone’s capacity to predict or prevent?

No.

Not only were each of these acts against both law and common sense but also none were accidental! Or, at least that is what Freud would say.

In view of his triparate personality theory it is no surprise that Sigmund Freud stated there was no such thing as a behavioral accident.  Perhaps he went a bit further than most of us might, but his contention is that in almost every case we point to as an “accident”, any rational human could have and may have, under­stood how wrong things could go if only a few seconds were spent con­sidering what we call erroneous, unexpected surprising conse­quences.  We knew or should have known what would happen and may have at some level expected it.

In truth, any of us can construct a situation where a “real” accident happens. A car’s steering knuckle strips under pressure and the car goes out of control. A railing pulls out of overly stressed concrete and folds under a person’s weight. An errant wind blows down a flue and pushes baked coals across a base­ment floor to a woodpile. A care­fully fired shot passes through a buck, ricochets 60º off a rock wall, travels 200 yards downhill, and kills a fellow hunter.  Preventable acci­dents?  Sure, if you accept that we can calculate every curve reality can possibly throw at us. Rationally pre­ventable?  No.

But in these cases there was not any excessive speed or slippery road, no illegal drugs, no irresponsi­ble alcohol consumption, nor fire­arm stupidity.  These were acci­dents. What about the others? And, what to do?

What about this … ?  Why not separate “accidents” from the fool­ish behavior that produced them?  Punish the foolish behavior in addi­tion to the tort – don’t allow it to mitigate or excuse it.

Consider: vehicular homicide and speeding and texting and inattention to road conditions penalties, as well.  Homicide penalty and assault and illegal drug use.  Two homicide penalties and theft and illegal entry and property destruction and minors in possession of alcohol.  Homicide and reckless endangerment and fire­arm irresponsibility.  And, of course, absolute liability for each action and injury.

Did they mean for any of these tragedies to happen?  No.

Are the victims still dead, are the lives around them in tatters, the property still destroyed?  Yes.

And, when perpetrators of these tragedies say, in explanation, “It was not my fault. It was an accident.”  What do we direct the judges to say? What should judges do?

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