Duty to report accidental fire in Commonwealth v. Levesque

¶ … Arson on Firefighters

Factors the Court Relied on to Find a Duty to Report

The main factor, among others, that both the initial judge -- and the Supreme Judicial Court after a short-lived reversal by the Superior Court -- relied on, was whether the defendants displayed wanton and reckless behavior in not reporting the fire, regardless of other circumstances.

The finding was based on several other court cases, including People v. Kazmarick (N.Y. County Ct. 1979) which states that "one who creates, by his own conduct...a grave risk of death or injury to others has a duty and obligation to alleviate the danger." The argument in Commonwealth vs. Thomas S. Levesque was that this was not a situation where a passerby observes a fire and fails to report it; the defendants started the fire and increased the risk of harm from that fire by allowing it to burn without taking steps to control or report it.

The question was whether or not this behavior on the defendants' part constituted wanton or reckless conduct. If so, and a duty to act was proved, then manslaughter charges could be found. Though recklessness must involve an intentional act or omission, a finding of recklessness is based on the intent to engage in the reckless conduct, and not the intent to bring about a harmful result.

The Commonwealth presented adequate evidence of the defendants' choice not to report the fire by providing testimony as to their actions after the fire was accidently set, including going to a mall, having a meal, not using a working cell phone, and not using numerous pay phones that were convenient to them, etc. Therefore, there was little question that the defendants' actions were reckless. So, despite the other factors considered, the primary ruling that the defendants' actions were wanton and reckless led to the finding for manslaughter.

Arson?

The defendants in this case were not charged with arson, which is defined as intentional and malicious. In Levesque, the man and woman were charged with accidently starting a fire and then fleeing the premises and not calling 911 to report an emergency. There was no indication that they intentionally and maliciously set the fire, as, at the time, it was their own "residence" that went up in flames.

However, if they had not been charged with accidently starting the fire, it would change the outcome of the case, I believe. The reason they were found guilty was because they were found wanton and reckless in not reporting the fire which they accidently started. Absent that charge, there would be no cause to find them guilty even though they left the premises. Actually, absent being charged with accidently starting the fire, there would be no basis for a trial at all, even if the building had burned down and the firefighters had been killed by the fire.

Not charging them with starting the fire would leave the case wide open for someone else to have started it. Whether the defendants were there at the time someone else started it, might help determine their guilt. I don't believe they could be found wanton and reckless for just leaving the building. But if they had witnessed someone else start it, they could be charged even if it was accidental on the other person's part. They could then be found wanton and reckless as they were present when another person started it, and left and didn't report it.

If they were aware of the fire, though they didn't set it, and then left the building, I believe the outcome should be the same -- guilty.

The whole charge of manslaughter depends upon them setting the fire and not reporting it. So, if they witnessed someone else accidently start the fire, they could also still be charged with manslaughter as they were in their trial.

An Intentional Act Involved in Every Act of Recklessness

Any voluntary act of a thinking human being is intentional. It has to be, or we wouldn't do it. Our intent is to commit the voluntary act. Blinking of your eye is a reflex. Kicking someone is a voluntary act.

Reckless means giving little thought to danger. It also involves a "rash," thoughtless, or irresponsible act. Reckless may apply to someone who jumps in their car when they are extremely angry and drives too fast, not paying attention to other cars and rams into another car injuring someone. That's reckless, but it was also a voluntary act. So it is an intentional act.

Getting in the car, starting it, racing off down the street were all voluntary and intentional. Not paying attention and hitting someone else were reckless.

In our case, the defendants had a physical altercation in their room and knocked over the candle "accidently." The physical altercation was a voluntary, intentional act which led to the reckless act of knocking over the candle. Thus, there was an intentional act involved in their act of recklessness.

Their acts of leaving the building, walking away, going to a shopping mall, having a meal, and choosing not to call 911 while a fire they started was growing bigger by the minute were all voluntary, intentional acts. Did they know a fire could kill firefighters? How could they not know that fires injure and kill people all the time. So were they being reckless at the same time they were committing intentional acts? Of course.

Our definition of reckless is thoughtless, rash, or irresponsible. Not calling 911 was both voluntary (intentional) and reckless (irresponsible).

The judge is correct in his statement that there is an intentional act involved in every act of recklessness. (Murray)