WPIC 90.05 Reckless Manner—Disregard for Safety of Others—Definition—Ordinary Negligence Distin...

Use this instruction for vehicular homicide or vehicular assault cases if the case involves either operating a motor vehicle in a reckless manner or operating a motor vehicle with disregard for the safety of others. Do not use this instruction for cases of reckless driving charged under RCW 46.61.500. See the Comment below.

Use bracketed material as applicable. For directions on using bracketed phrases, see WPIC 4.20 (Introduction).

For purposes of the vehicular assault and vehicular homicide statutes, operating a vehicle in “a reckless manner” means driving in a rash or heedless manner, indifferent to the consequences. State v. Roggenkamp, 153 Wn.2d 614, 106 P.3d 196 (2005) (abrogating State v. Hursh, 77 Wn.App. 242, 890 P.2d 1066 (1995) (vehicular assault); State v. Miller, 60 Wn.App. 767, 773, 807 P.2d 893 (1991) (vehicular homicide); and State v. McAllister, 60 Wn.App. 654, 658–59, 806 P.2d 772 (1991) (vehicular homicide)).

This definition of “reckless manner” is distinct from the definition of “reckless driving,” which is a separate criminal offense. See State v. Roggenkamp, 153 Wn.2d at 628 (finding that the legislature had always intended that, for purposes of vehicular homicide and vehicular assault, the term “reckless manner” should not be defined in terms of the meaning of “reckless driving”); RCW 46.61.500 (defining reckless driving as involving “willful or wanton disregard for the safety of persons or property”); see also State v. Curran, 116 Wn.2d 174, 804 P.2d 558 (1991) (abrogated on other grounds State v. Berlin, 133 Wn.2d 541, 133 Wn.2d 541 (1997)). For the instructions on the separate offense of reckless driving, see WPIC Chapter 95 (Reckless Driving).

The second paragraph of this instruction is an adaptation of the majority opinion in State v. Eike, 72 Wn.2d 760, 435 P.2d 680 (1967), which has been cited with approval in several cases: State v. Jacobsen, 78 Wn.2d 491, 477 P.2d 1 (1970); State v. Knowles, 46 Wn.App. 426, 730 P.2d 738 (1986); and State v. May, 68 Wn.App. 491, 843 P.2d 1102 (1993). Evidence of some conscious disregard of the danger to others is necessary. State v. Vreen, 99 Wn.App. 662, 994 P.2d 905 (2000), affirmed, 143 Wn.2d 923, 26 P.3d 236 (2001); see also State v. A.G., 117 Wn.App. 462, 72 P.3d 226 (2003) (discussing vehicular homicide by disregard for the safety of others), affirmed, State v. Graham, 153 Wn.2d 400, 103 P.3d 1238 (2005).

For further discussion, see the Comment to WPIC 90.03 (Special Verdict Form—Vehicular Homicide and Assault).

The definition of ordinary negligence in this instruction was adapted from the civil jury instructions, WPI 10.01 (Negligence—Adult—Definition) and WPI 10.02 (Ordinary Care—Adult—Definition).

WPIC 10.03 (Recklessness—Definition), which is based on RCW 9A.08.010(1)(c), applies to crimes included in RCW Title 9A, but it does not apply to vehicular homicide/assault, see State v. Roggenkamp, 153 Wn.2d 614, 624 n.3, 106 P.3d 196 (2005), nor to driving offenses under RCW Title 46. See the Comment to WPIC 10.03 (Recklessness—Definition).