PEOPLE OF MI V DAVID AMES WARDWELL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 27, 2009
Plaintiff-Appellee,
v
No. 280298
Kent Circuit Court
LC No. 06-007552-FH
DAVID AMES WARDWELL,
Defendant-Appellant.
Before: Beckering, P.J., and Whitbeck and M. J. Kelly, JJ.
PER CURIAM.
Defendant David Wardwell appeals as of right his bench conviction of operating a motor
vehicle while intoxicated causing serious bodily injury of another person.1 The trial court
sentenced Wardwell to 18 months’ probation. We affirm.
I. Basic Facts And Procedural History
On April 29, 2006, Wardwell struck and injured Yancy Szczerbowicz with his motor
vehicle. At the time of the incident, Wardwell was driving friends home from Monte’s bar in
Grand Rapids, Michigan. Wardwell testified that over the course of the evening he had three or
four beers, but had stopped drinking before 12:30 a.m. After leaving Monte’s at approximately
2:00 a.m., Wardwell headed eastbound on Michigan Street. As he approached another bar called
Logan’s Alley, he saw a group of people, including Szczerbowicz, on the sidewalk in front of the
bar. According to Wardwell and his passengers, as Wardwell got closer to the group of people,
Szczerbowicz suddenly left the sidewalk and ran in front of Wardwell’s car. Wardwell struck
Szczerbowicz, and according to Wardwell and his passengers, the accident was unavoidable.
Szczerbowicz testified that he was merely crossing the street to get to his parked car. Similarly,
Szczerbowicz’s friend who was present during the incident testified that Szczerbowicz did not
run into the road, rather Szczerbowicz had probably only taken “a step” into the road.
Officer Curtis Creighton arrived at the scene of the accident at approximately 2:30 a.m.
Officer Creighton had Wardwell perform a series of field sobriety tests, which Wardwell failed.
1
MCL 257.625(5).
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Both parties stipulated at trial that Wardwell had a blood alcohol level of .13 grams per 100
milliliters, which is over the legal limit.
While at the scene of the accident, Officer Creighton also observed Szczerbowicz and
noticed that Szczerbowicz appeared to be intoxicated. When Officer Creighton spoke with
Szczerbowicz at the hospital, Szczerbowicz indicated that he stumbled into the road.
As a result of the accident, Szczerbowicz suffered several broken bones in his foot, and
torn ligaments in his right knee. The knee injuries required surgery, and, following surgery,
Szczerbowicz was advised not to place any weight on his knee for six weeks. Medical testimony
revealed that if Szczerbowicz had not received treatment for his injury, it might have prevented
him from walking.
At the request of the prosecution, Detective Allen Noles, an accident reconstruction
expert, investigated the accident. According to Detective Noles, Michigan Street runs east to
west and is wide enough to accommodate four lanes of traffic. However, as it passes Logan’s
Alley, the road is zoned for two lanes. Detective Noles testified that on Michigan, the lanes are
“very large” and that when Szczerbowicz stepped off the curb he was in the lane of traffic.
Where Szczerbowicz entered the lane, there was no designated crosswalk. In addition, Detective
Noles testified that it is not uncommon for people in Grand Rapids to cross in the middle of the
street, and he would expect to see someone jaywalk in front of a bar.
Based on witness’s observations, Detective Noles estimated that Wardwell was traveling
at approximately 30 miles an hour, which is the lawful speed limit on Michigan Street. Also
based on witness statements, Detective Noles opined that Szczerbowicz took two to four steps
into the road before the car hit him. Detective Noles conducted “a time/distance analysis to try
to determine if there was an opportunity for Mr. Wardwell to avoid the accident.” And as a
result of the tests, Detective Noles established that Wardwell did not have enough time to stop.
Additionally, during the trial, a photograph of Wardwell’s car was introduced showing damage
on the front right quarter panel. Detective Noles testified that the damage the photograph
depicted was “consistent with a person running into the side of the vehicle.”
After concluding his investigation, Detective Noles determined that, other than the fact
that Wardwell was intoxicated, he was not violating any other traffic laws, and “his driving was
fine.” Detective Noles concluded that Szczerbowicz was negligent and that he was the one that
was responsible for this crash.
After considering the evidence, the trial court first found that Szczerbowicz’s injuries
were sufficient to satisfy the statutory requirement of serious impairment of body function.
Turning its attention to causation, the trial court found that Wardwell’s operation of his vehicle
was the factual cause of Szczerbowicz’s injuries: “[A]bsent [Wardwell’s] operation of the
vehicle, this would not have occurred. If you had stayed—or hadn’t driven the car or had never
gotten into the car, this never would have happened.” The trial court then went on to address
proximate cause and apply an intervening-superseding cause analysis. The trial court found that
Szczerbowicz was negligent in failing to exercise due caution before running into the street, but
that his actions did not amount to gross negligence. The trial court explained:
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I agree with the analysis of the expert, that the person who is at fault here
is the victim of this crime. However, under the law and the analysis of this
particular charge, . . . this Court finds that he was committing ordinary negligence
by cross walking, by stepping into the street. Therefore, that, according to
Michigan law, is reasonably foreseeable. If it’s reasonably foreseeable, then it is
not an intervening cause or superseding cause, and accordingly, proximate cause
has also been met, then.
Accordingly, the trial court found Wardwell guilty of operating a motor vehicle while intoxicated
causing serious bodily injury of another person.
II. Causation
A. Standard Of Review
Wardwell argues that he was not the factual cause of the accident and, therefore, the trial
court did not need to determine if Szczerbowicz’s actions were a superseding cause sufficient to
mitigate Wardwell’s culpability. According to Wardwell, because the trial court determined that
Szczerbowicz’s negligence caused the accident, the trial court should have acquitted Wardwell
of the charge of operating while intoxicated causing serious bodily injury. We review de novo
questions of statutory interpretation.2 Further, whether a defendant’s alleged conduct falls within
the scope of a statute presents a question of law that we review de novo.3
B. Analysis
The primary goal of statutory construction is to “discern and give effect to the
Legislature’s intent.”4 To properly determine the Legislature’s intent, this Court “begins by
examining the language of the statute itself.”5 We give the words the statute contains “their
plain, ordinary meaning unless the Legislature employs a term of art.”6
The trial court found Wardwell guilty of operating while intoxicated causing serious
bodily injury under MCL 257.625(5). This statute states:
A person, whether licensed or not, who operates a motor vehicle in violation of
subsection (1), (3), or (8) and by the operation of that motor vehicle causes a
serious impairment of a body function of another person is guilty of a felony
2
People v Schaefer, 473 Mich 418, 427; 703 NW2d 774 (2005), overruled in part on other
grounds People v Derror, 475 Mich 316; 715 NW2d 822 (2006).
3
People v Edenstrom, 280 Mich App 75; ___ NW2d ___ (2008).
4
People v Morey, 461 Mich 325, 329-330; 603 NW2d 250 (1999).
5
People v Disimone, 251 Mich App 605, 609; 650 NW2d 436 (2002) (quotations and citations
omitted).
6
Bukowski v Detroit, 478 Mich 268, 274; 732 NW2d 75 (2007).
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punishable by imprisonment for not more than 5 years or a fine of not less than
$1,000.00 or more than $5,000.00, or both.
The prosecution “must establish beyond a reasonable doubt that 1) the defendant was operating
his or her motor vehicle in violation of MCL 257.625 (1), (3), or (8); 2) the defendant voluntarily
decided to drive, knowing that he had consumed an intoxicating agent and might be intoxicated;
and 3) the defendant’s operation of the motor vehicle caused the victim’s [serious impairment of
a body function].”7
At trial, the parties stipulated that Wardwell had a blood alcohol level of .13 grams per
100 milliliters, in violation of MCL 257.625(1)(b). Further, on appeal, Wardwell does not
dispute that he voluntarily operated a motor vehicle the night of the incident after consuming
alcoholic beverages. Nor does he dispute that Szczerbowicz sustained a serious bodily
impairment. Therefore, the only issue we need to consider on appeal is whether Wardwell’s
operation of the vehicle caused Szczerbowicz’s injury.
“In criminal jurisprudence, the causation element of an offense is generally comprised of
two components: factual cause and proximate cause.”8 To determine if Wardwell was the
factual cause of the result, “one must ask ‘but for’ the defendant’s conduct, would the result have
occurred?”9 If the result would not have occurred without Wardwell’s actions, then factual
causation has been proven.10
We first note that in People v Schaefer, the Michigan Supreme Court held that
“[t]he defendant’s status as ‘intoxicated’ is a separate element of the offense and
entirely irrelevant to the causation element of the crime. It is the defendant’s
operation of the motor vehicle that must cause the victim’s death under §625(4),
not the manner by which the defendant’s intoxication may or may not have
affected the defendant’s operating ability.”[11]
The Court later held that the reasoning in Schaefer also applied to MCL 257.625(5).12
Wardwell argues that the trial court found that he was not the factual cause of the
accident because Szczerbowicz was at fault for negligently walking into the road and into the
path of his car. But Wardwell misconstrues the trial court’s findings. In his brief on appeal,
Wardwell explains the trial court’s findings as follows:
7
Schaefer, supra at 434. See also MCL 257.625(5).
8
Id. at 435.
9
Id. at 435-436.
10
Id. at 436.
11
Id. at 446 (emphasis in original).
12
Derror, supra at 334.
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The court first found that Mr. Wardwell was not negligent and the
accident was not his fault. However, the court went on to apply the reasoning of
People v. Schaefer, 473 Mich 418, 703 NW2d 774 (2005), and its “interveningsuperseding cause” analysis. The court found that, while Mr. Szczerbowicz was
negligent in failing to exercise due caution before running into the middle of the
road, his actions did not amount to gross negligence. Based on this finding, the
court found that Mr. Wardwell was the “but for” cause of the accident and that he
was thus guilty of Operating While Intoxicated Causing Serious Bodily Injury.
***
Even the prosecution’s evidence showed that the accident was unavoidable and
was not Mr. Wardwell’s fault. Thus, it was not a stretch for the court to find that
Mr. Wardwell was not negligent and that the accident was Mr. Szczerbowicz’s
fault: “But that is not to say [Mr. Wardwell] was negligent. I agree with the
analysis of the expert, that the person who is at fault here is the victim of this
crime.”
However, the court went further and held that, since the victim was not
grossly negligent, it had no choice but to find Mr. Wardwell guilty. [Record
citations omitted.]
Contrary to Wardwell’s description, as we stated above, the trial court first determined
that Wardwell was indeed the factual cause of the accident. The trial court then went on to
address proximate cause. During the course of that analysis, the trial court found that while
Szczerbowicz was actually at fault for the accident by walking into the street, his ordinary
negligence did not supersede Wardwell’s conduct.
Of necessity, we therefore turn to the propriety of the trial court’s finding that Wardwell
was the factual cause of the accident. In People v Large, consolidated with Schaefer, the Court
determined that the defendant was the factual cause of a child’s death because “absent
defendant’s operation of the vehicle, the collision would not have occurred.” The Court made
this determination even though the evidence showed that “the victim rode a bicycle without
brakes down a partially obstructed hill onto a busy road, and thus, according to the prosecution’s
own expert witness, made the collision unavoidable.”13 The Court did not consider the victim’s
own culpability when it determined that the defendant was the factual cause. Similarly, in this
case, the testimony established that Wardwell made a conscious decision to drive his vehicle on
the night of the accident. Consequently, but for Wardwell’s decision to drive his vehicle, the
injuries to Szczerbowicz would not have occurred. Thus, Wardwell was the factual, “but for,”
cause of the accident.
13
Schaefer, supra at 445.
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However, factual cause alone will not permit a finding of criminal liability.14 Proximate
causation must also be established, and proximate causation is a “legal colloquialism,” “designed
to prevent criminal liability from attaching when the results of defendant’s conduct is viewed as
too remote or unnatural.”15
For a defendant’s conduct to be regarded as a proximate cause, the victim’s injury
must be a “direct and natural result” of the defendant’s actions. In making this
determination, it is necessary to examine whether there was an intervening cause
that superseded the defendant’s conduct such that the causal link between the
defendant’s conduct and the victim’s injury was broken. If an intervening cause
did indeed supersede the defendant’s act as a legally significant causal factor,
then the defendant’s conduct will not be deemed a proximate cause of the victim’s
injury.[16]
If an intervening cause was foreseeable based on an objective standard of reasonableness,
we consider a defendant’s conduct as the proximate cause.17 “If, however, the intervening act by
the victim or the third party was not reasonably foreseeable—e.g., gross negligence or
intentional misconduct—then generally the causal link is severed and the defendant’s conduct is
not regarded as a proximate cause of the victim’s injury . . . .”18
While an act of God or the gross negligence or intentional misconduct by the
victim or a third party will generally be considered a superseding cause, ordinary
negligence by the victim or a third party will not be regarded as a superseding
cause because ordinary negligence is reasonably foreseeable.[19]
Gross negligence is defined as “wantonness and disregard of the consequences which may ensue,
and indifference to the rights of others that is equivalent to criminal intent.”20
Wardwell argues that after determining that he was not negligent, the trial court should
not have considered proximate cause. However, because the trial court found that Wardwell was
a factual cause of the accident, it was necessary for the trial court to address the issue of
proximate cause.
At trial, testimony demonstrated it was not unusual for patrons of this bar to walk in the
middle of the street to get to the parking lot on the other side of the roadway. A police officer
14
Id. at 436.
15
Id.
16
Id. at 436-437.
17
Id. at 437.
18
Id. at 437-438 (emphasis in original).
19
Id. at 438-439 (emphasis in original).
20
Id. at 438, quoting People v Barnes, 182 Mich 179, 198; 148 NW 400 (1914).
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also testified he would expect to see people routinely jaywalk in that area. In addition, Wardwell
and his passengers testified that they all noticed a group of people standing on the sidewalk in
front of the bar. It was reasonably foreseeable that a person would negligently walk out into the
roadway. Therefore, even though Szczerbowicz’s negligence contributed to the accident, it did
not rise to the level of gross negligence. Accordingly, the trial court properly concluded that
Wardwell was the proximate cause of the accident.
Affirmed.
/s/ Jane M. Beckering
/s/ William C. Whitbeck
/s/ Michael J. Kelly
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