Tuesday, July 4, 2017

Why we Celebrate the Fourth of July

We celebrate American Independence Day on the Fourth of July every year. As Americans, we accept that July 4, 1776 is the day that represents our Declaration of Independence and the birth of the United States of America as an independent nation. But July 4, 1776 wasn't the day that the Continental Congress decided to declare independence (that was on July 2nd). It wasn’t the day we started the American Revolution either (that had happened back in April 1775). And it wasn't the day Thomas Jefferson wrote the first draft of the Declaration of Independence (that was in June 1776).  Or the date it was signed (that was August 2, 1776). Or even the date on which the Declaration was delivered to Great Britain (that didn't happen until November 1776).

The Continental Congress met in Philadelphia for months debating whether or not to take this drastic step and the actual vote for independence occurred on July 2, 1776, The next day, John Adams wrote a letter to his beloved wife exuberantly reporting that history had been made the day before: “A Resolution was passed, without one dissenting Colony, that these united Colonies, are, and of right ought to be, free and independent States.” Henceforth, Adams predicted, July 2 would be celebrated by every generation with parades, speeches, songs and what he called “illuminations.” He got everything right, even the fireworks. But he got the date wrong.

So what did happen on July 4, 1776?

The Continental Congress approved the final wording of the Declaration of Independence when they were meeting in Philadelphia on July 4, 1776. A committee (principally Thomas Jefferson) had been drafting a proposed document for weeks and after July 2nd, the Congress spent two more days revising the final draft until they all came to agreement on all of the edits and changes. Keep in mind that with quill pens, it was a tedious process to make edits and create a new edited version of any document. The Declaration of Independence agreed to on the Fourth was merely the thunderous aftermath, the sound following the fury.

July 4, 1776, became the date that was included on the Declaration of Independence, and the fancy handwritten copy that was signed in August (the copy now displayed at the National Archives in Washington, D.C.) It’s also the date that was printed on the Dunlap Broadsides, the original printed copies of the Declaration that were circulated throughout the new nation. So when people thought of the Declaration of Independence, July 4, 1776 was the date they remembered.

In contrast, we celebrate Constitution Day on September 17th of each year, the anniversary of the date the Constitution was signed, not the anniversary of the date it was approved. If we’d followed this same approach for the Declaration of Independence we’d being celebrating Independence Day on August 2nd of each year, the day the Declaration of Independence was signed!

How did the Fourth of July become a national holiday in the United States?

For the first 15 or 20 years after the Declaration was written, people didn’t celebrate it much on any date. It was too new and too much else was happening in the young nation. By the 1790s, a time of bitter partisan conflicts, the Declaration had become controversial. One party, the Democratic-Republicans, admired Jefferson and the Declaration. But the other party, the Federalists, thought the Declaration was too French and too anti-British, which went against their current policies.
By 1817, John Adams complained in a letter that America seemed uninterested in its past. But that would soon change.

After the War of 1812, the Federalist party began to come apart and the new parties of the 1820s and 1830s all considered themselves inheritors of Jefferson and the Democratic-Republicans. Printed copies of the Declaration began to circulate again, all with the date July 4, 1776, listed at the top.

Coincidentally, the Fourth of July was momentous for other reasons. On July 4, 1803, word arrived from Paris that the Louisiana Purchase had been signed by Napoleon, an event of enormous significance rendered almost providential because of the chronological coincidence. On July 4, 1863, Gen. Robert E. Lee’s army began its retreat from Gettysburg, which newspapers in the northern states reported as a sign from the heavens that the Confederate cause was now lost. Celebrations of the Fourth of July became more common as the years went on and in 1870, almost a hundred years after the Declaration was written, Congress first declared July 4 to be a national holiday. Further legislation about national holidays, including July 4, was passed in 1939 and 1941.

The most providential event of all, however, occurred on July 4, 1826, when both John Adams and Thomas Jefferson died on the same day. Adam’s last words were,“Thomas Jefferson still lives,” although Jefferson had died a few hours earlier. Jefferson’s last words, muttered the preceding evening, were, “Is it the Fourth?”  Both founders seemed determined to die on schedule, thereby endorsing July 4 as the sanctioned anniversary for American independence. Even if the date had been wrong for 50 years, it has been right ever since.

Tuesday, June 20, 2017

Reckless Driving

Reckless Driving[1]
Dale G. Larrimore
Larrimore & Farnish, LLP – Philadelphia, PA

§ 3736. Reckless driving.
Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.

            The phrase “willful and wanton” as used in section 3736 of the Vehicle Code, applies when a driver grossly deviates from ordinary prudence and creates a substantial risk of injury.[2]  It conforms to the type of conduct that is generally known as reckless conduct in the law. Under the Restatement Second of the Law of Torts:
The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.[3]

A motorist who exhibits a callous disregard for the danger created by his or her conduct would be guilty of reckless driving under this section.[4]
            Reckless conduct is the “intentional acting or failing to act in complete disregard of a risk of harm to others which is known or should be known to be highly probable and with a conscious indifference to the consequence .... In other words, it’s more than mere negligence. It’s acting in such a way that the person acting has a conscious indifference to the consequences.”[5] The Pennsylvania Supreme Court has indicated that a person is guilty of wanton misconduct if that person recklessly disregards an existing danger, realizing, or at least having knowledge of sufficient facts to cause a reasonable man to realize, the existence of the peril for a sufficient period of time to give an opportunity to take action to avoid the accident.[6]
Driving a vehicle at 70 miles-per-hour around a blind curve demonstrates willful or wanton disregard for the safety of persons or property, sufficient to support a conviction for reckless driving.[7] Entering the opposite lane of travel constitutes reckless driving.[8] Every licensed driver is aware that driving while under the influence of alcohol presents a significant and very real danger to others and, under the appropriate circumstances, evidence of driving under the influence is outrageous misconduct demonstrating a reckless disregard to the safety of others sufficient to warrant punitive damages.[9]
            Thus, whether it is termed ‘reckless disregard’ or ‘wanton misconduct,’ the basis of this liability in tort is premised upon the actor intentionally doing an act creating a great risk of harm when the actor either (1) knows of the great risk, but consciously disregards it and proceeds, or (2) had knowledge of facts that would lead a reasonable man to become aware of this risk in time for the actor reasonably to avoid the danger.[10] Our Superior Court has held that a motorist can drive in such a reckless manner that he must be deemed to have been aware of the fact that he was creating a substantial risk of causing a motor vehicle collision.[11]
            The violation of multiple provisions of the Vehicle Code can result in a conviction of reckless driving, even where one violation may not have been sufficient to demonstrate the requisite degree of wanton disregard for the safety of others. The Pennsylvania Superior Court has held that the “cumulative conduct” of a motorist who was speeding, tailgating and erratically changing lanes was sufficient to demonstrate that he acted in a reckless and grossly negligent manner.[12]
            While drunk driving is certainly reckless behavior, courts have held that driving under the influence of an intoxicating substance does not, in and of itself, establish reckless driving per se; there must be other tangible indicia of unsafe driving to a degree that creates a substantial risk of injury that is consciously disregarded.[13] An intoxicated driver’s flight from an approaching police officer could be considered reckless driving.[14] However, it is recognized that there is a level of intoxication that would render a person so incapable of safe driving that the probability of injury or death would rise high enough to satisfy the willful and wanton recklessness standard for a violation of Section 3736 of the Vehicle Code.[15]
            There are two significant effects of reckless conduct by a defendant. First, if the evidence reveals and the fact finder determines that the defendant acted with recklessness, then the defendant would be barred from utilizing the affirmative defense of comparative negligence[16] at trial.[17] When willful or wanton misconduct is involved, comparative negligence should not be applied, as reckless conduct and negligent conduct require different levels of culpability.[18] Recklessness is different “in kind” from mere negligence or carelessness; it cannot be compared with negligence for purposes of apportioning fault under the Comparative Negligence Act.[19] For this reason, an averment of recklessness in pleadings is proper on its own, with or without a claim for punitive damages.
            The second significant effect of reckless conduct is that it exposes the defendant to a claim of punitive damages. Assessment of punitive damages are proper when a person's actions are of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct.[20] In Feld v. Merriam, the Supreme Court adopted Section 908(2) of the Restatement (Second) of Torts, under which punitive damages may be awarded against a defendant who acts with reckless indifference to the rights of others.[21] Where a defendant knows, or has reason to know, of facts that create a high degree of risk of physical harm to another and deliberately proceeds to act or fails to act in conscious disregard of, or indifference to, that risk than punitive damages may be awarded.[22]
            The question of whether a person's actions rise to outrageous conduct done with reckless indifference to the interests of others lies within the sound discretion of the fact-finder and should not be disturbed by an appellate court so long as that discretion has not been abused.[23] 

[1] Excerpted from Larrimore, Dale, Pennsylvania Rules of the Road, Vol. 13 of West’s Pennsylvania Practice Series, 2016-2017 Edition, Section 6:2. Copyright Thomson Reuters.
[2] Com. v. Greenberg, 885 A.2d 1025, 1027–28 (Pa. Super. Ct. 2005), cited with approval in Com. v. Carroll, 936 A.2d 1148 (Pa. Super. Ct. 2007).
[3] Restatement Second of Torts §500, as quoted in Sullivan v. Wolson, 396 A.2d 1230 (Pa. Super. Ct. 1978).
[4] Com. v. Greenberg, 885 A.2d 1025, 1027–28 (Pa. Super. Ct. 2005).
[5] Junk v. East End Fire Dept., 396 A.2d 1269, 1274 (Pa. Super. Ct. 1978).
[6] Evans v. Philadelphia Transp. Co., 418 Pa. 567, 212 A.2d 440 (1965).
[7] Com. v. Fieldler, 931 A.2d 745 (Pa. Super. Ct. 2007).
[8] Com. v. Best, 120 A.3d 329 (Pa. Super. Ct. 2015).
[9] Focht v. Rabada, 268 A.2d 157, 161 (Pa. Super. Ct. 1970).
[10] Sullivan v. Wolson, 396 A.2d 1230, 1236 (Pa. Super. Ct. 1978).
[11] Com. v. Jeter, 937 A.2d 466 (Pa. Super. Ct. 2007), reargument denied January 10, 2008, citing Com. v. Greenberg, 885 A.2d 1025, 1028–29 (Pa. Super. Ct. 2005).
[12] Com. v. Matroni, 923 A.2d 444 (Pa. Super. Ct. 2007).
[13] Com. v. Jeter, 937 A.2d 466 (Pa. Super. Ct. 2007)(citing Com. v. Mastromatteo, 719 A.2d 1081, 1083 (Pa. Super. Ct. 1998).
[14] Com. v. Finley, 135 A.3d 196 (Pa. Super. Ct. 2016).
[15] Com. v. Jeter, 937 A.2d 466 (Pa. Super. Ct. 2007), citing Com. v. Bullick, 830 A.2d 998, 1004 (Pa. Super. Ct. 2003).
[16] Pennsylvania’s Comparative Negligence Act is found at 42 Pa.C.S. §7102(a).
[17] Kasanovich v. George, 348 Pa. 199, 203, 34 A.2d 523, 525 (1943).
[18] Krivijanski v. Union R. Co., 515 A.2d 933, 936 (Pa. Super. Ct. 1986).
[19] Johnson v. City of Philadelphia, 808 A.2d 978 (Pa. Commw. Ct. 2002).
[20] SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 493, 587 A.2d 702, 704 (1991).
[21] Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984).
[22]SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 494–95, 587 A.2d 702, 704–705 (1991), citing Chambers v. Montgomery, 411 Pa. 339, 344, 192 A.2d 355, 358 (1963).
[23] SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 495, 587 A.2d 702, 705 (1991).