RICHARD E. PARROTT, Judge.
Defendant, Sandra C. Madden, is charged with vehicular homicide in violation of R.C. 2903.07, to which charge the defendant has entered a "not guilty" plea. Jury was waived, and at trial of this cause to the court, the court finds as follows:
Facts
On October 4, 1989, on State Route 31 in Union County, Ohio and during the night hours at shortly after midnight, Sandra C. Madden was operating her motor vehicle in a northerly direction, with her husband, son and daughter as passengers. The night was dark with no lights, the road dry, and there were no adverse weather conditions. The headlights on Madden's vehicle were operating properly. The speed of the Madden vehicle was 55 m.p.h. or less, with the posted speed limit being 55 m.p.h. in that area. As Madden came up a slight grade starting at a bridge to the crest of a hill three-tenths of a mile north of milepost 5 on State Route 31, a disabled vehicle, with no lights, no flares or any other warning, was parked in the right lane of the traveled portion of the paved highway facing in a northerly direction. The operator of the parked vehicle, Donald O. Harris, who was dressed in dark clothing, was outside the vehicle and was in a bent posture at the rear of the vehicle. The hood over the engine was open.
At the same time and place, a vehicle driven by Benjamin A. Heskett was being operated in a southerly direction on State Route 31 and was immediately adjacent to the parked motor vehicle when Madden operated her motor vehicle into Donald O. Harris and his parked vehicle.
Madden testified that she was not preoccupied with the radio or talking to her husband or other occupants of the automobile, that she was not blinded by the on-coming lights of the Heskett vehicle, and that she did not see the parked vehicle or Donald Harris in the roadway until the very instant of impact. It is stipulated by the parties that the lights of the Harris vehicle were not on and that Harris died as a result of the accident.
Heskett testified that he saw the stopped vehicle about ten car lengths away. He further testified that he did not see the Madden auto until just before the impact. In addition, Heskett testified that he did not see Harris at any time.
Trooper Whipple testified that Madden was traveling at a rate of eighty-one feet per second, and that her reaction time would have been three-fourths of a second. Trooper Cunningham further testified that there were no skid marks prior to the accident.
The court further finds that Madden's view of the Harris automobile was unobstructed by the terrain. The court also finds that there is no evidence of the presence of alcohol, or of drug abuse, and that the defendant, Sandra C. Madden, has no prior convictions.
Law of the Case
R.C. 2903.07(A) states, "[n]o person, while operating or participating in the operation of a motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall negligently cause the death of another."
R.C. 2901.22(D) states, "[a] person acts negligently when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature. A person is negligent with respect to circumstances when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that such circumstances may exist."
R.C. 4511.21(A) states, "[n]o person shall operate a motor vehicle * * * at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface, and width of the street or highway and any other conditions, and no person shall drive any motor vehicle * * * in and upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead."
Decision
The court finds that Madden violated R.C. 4511.21(A), in that she did operate her motor vehicle at a speed greater than was proper and that would permit her to bring the motor vehicle to a stop within the assured clear distance ahead. However, the sole question in this case is whether, within the prohibitions of R.C. 2903.07, Sandra C. Madden was negligent.
An examination of the definition of criminal negligence shows that there must be a " substantial lapse" from due care. Under this standard it is obvious that something more is required than the failure to exercise due care. State v. Ovens (1974), 44 Ohio App.2d 428, 73 O.O.2d 540, 339 N.E.2d 853. Whether a lapse of due care is "substantial" for purpose of criminal negligence is a determination for the trier of the fact. State v. Newton (1985), 23 Ohio App.3d 184, 23 OBR 427, 492 N.E.2d 455; State v. Ovens, supra. A finding of criminal negligence requires proof of an appropriate standard of due care, and a corresponding lapse from that standard which must be substantial. State v. McKeand (Sept. 29, 1986), Butler App. No. CA86-02-018, unreported, 1986 WL 11405.
Under the facts found in this case, the court cannot find, beyond a reasonable doubt, that there was a "substantial lapse" from due care, and, consequently, finds the defendant, Sandra C. Madden, not guilty of the charge of violating R.C. 2903.07.
Defendant found not guilty.