Negligent and Reckless Homicide

Case: Commonwealth v. Welansky, 55 N.E.2d 902 (1944) [p. 381-385]

Facts: Δ was a nightclub owner. On Nov 28, 1942, while Δ was sick in the hospital, a fire broke out in the
overcrowded nightclub. Because it was overcrowded, and the emergency exits were blocked, about 500 people
died. Lower court found him guilty of involuntary manslaughter.

Holding: The court holds that the D is guilty because he was reckless. Considered disregard for the safety of
others is sufficient for the sort of recklessness which may support a manslaughter conviction. While
recklessness usually consists of an affirmative act, it need not be. When one is charged with the safety of others
and makes a conscious decision to do the unsafe thing, the action may constitute negligence. Here, Δ
intentionally failed to make the emergency exits passable, and this is certainly reckless. Court focuses on
whether there is a “grave danger”

Class Notes
• "wanton" and "reckless" - means different things in different jurisdictions!!!
• Jury instruction - whether the Δ, knowing facts which would cause a reasonable man to know the danger
o What this court means as reckless, not what we have defined as reckless.
o Difference between his knowing subjectively facts that give rise to knowing the danger, and just
knowing the danger.
o Knowing facts of case - a reasonable person would know, but maybe he didn’t know.
o This is more like a negligence standard.
• MPC - different. Has to show that he subjectively knew the danger of death
• The act - Omission - and he had a legal duty because he invited them on the premises, so he has a duty
to keep it safe
• Jury instruction here talks about reasonable man - sounds like negligence
o So distinction here is the gravity of danger - not ordinary tort-like danger.
• The gravity of the danger higher here than other places where fire can start.
• Danger of fire itself
• Increase harm from fire
• (furniture catches fire easily, blocked exits, poorly designed exits,
overcrowding
• However unlikely it is a fire would start, if there is a fire, the harm from
that fire would be very great.
• The gravity of the harm is very high here.
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Notes: [p. 385-390]

• Reckless v. Negligent Homicide - many jurisdictions treat recklessness and gross negligence as equal or
alternative bases for involuntary manslaughter, but MPC distinguishes the 2 - requires recklessness for
manslaughter but provides a lesser homicide crime for which negligence is enough.
• MPC § 210.3 (pg 265) Manslaughter
o Criminal homicide constitutes manslaughter when;
• It is committed recklessly; or
• A homicide which would otherwise be murder is committed under the influence of
extreme mental or emotion disturbance for which there is reasonable explanation or
excuse.
• Pg 1040 Culpability - MPC § 2.02(c) and (d)
o (c) Recklessly.
 • A person acts recklessly with respect to a material element of an offense when he
consciously disregards a substantial and unjustifiable risk that the material element exists
or will result from his conduct. The risk must be of such a nature and degree that,
considering the nature and purpose of the actor's conduct and the circumstances known to
him, its disregard involves a gross deviation from the standard of conduct that a law-
abiding person would observe in the actor's situation.
o (d) Negligently.
• A person acts negligently with respect to a material element of an offense when he should
be aware of a substantial and unjustifiable risk that the material element exists or will
result from his conduct. The risk must be of such a nature and degree that the actor's
failure to perceive it, considering the nature and purpose of his conduct and the
circumstances known to him, involves a gross deviation from the standard of care that a
reasonable person would observe in the actor's situation.

• "Wanton or reckless" standard

o Commonwealth v. Levesque, 766 N.E.2d 50 (2002)
• The 2 homeless Δs were living in an abandoned warehouse. Through negligence
(accidental), they started a fire, and ran out of the building. They did not call 911
(probably because they were afraid they'd get in trouble for trespassing on the property),
although they had many opportunities to do so. The fire spread very rapidly, and later
someone called 911, but by then the fire was very badly out of control. Eight firefighters
died trying to control the fire.
• Court compares to civil tort liability of a special duty when you caused the situation, and
agrees with the principle. "Where one's actions create a life-threatening risk to another,
there is a duty to take reasonable steps to alleviate the risk. The reckless failure to fulfill
this duty can result in a charge of manslaughter." Court decides that Δ's actions were
wanton and reckless, in that they did not call 911 to report the fire. They were aware of
the serious danger the fire could cause, had many opportunities to call 911, yet did not.
Δs are charged with the knowledge that their failure to act may cause substantial harm,
and still did nothing.