Commonwealth v. Angelo Todesca Corp.
446 Mass. 128, 842 N.E.2d 930  (Mass. 2006)

SPINA, J.

A jury found the defendant, a corporation, guilty of homicide by motor vehicle under G.L. 90, § 24G (b), after a truck driver employed by the defendant struck and killed a police officer. On appeal the defendant contends that the judge erred in denying its motion for a required finding and its posttrial motion under Mass. R.Crim. P. 25(b)(2), 378 Mass. 896 (1979), in which it argued that the Commonwealth presented insufficient evidence of negligent operation, proximate cause, and operation on a public way, and that a corporation cannot be criminally liable for motor vehicle homicide as a matter of law. The Appeals Court reversed the conviction, concluding that there was insufficient evidence of both the driver's negligence and causation, without reaching the other issues. Commonwealth v. Angelo Todesca Corp., 62 Mass.App.Ct. 599, 818 N.E.2d 608 (2004). We granted the Commonwealth's application for further appellate review, and we affirm the conviction.

1. Facts. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. See Commonwealth v. Latimore, 378 Mass. 671, 676–677, 393 N.E.2d 370 (1979). In December, 2000, Brian Gauthier, an experienced truck driver, was employed by the defendant, Angelo Todesca Corporation, a trucking and paving company. At the time, Gauthier was driving a ten-wheel tri-axle dump truck, designated AT–56, for the defendant; he had driven this particular vehicle for approximately one year. The defendant had a written policy, published in its safety manual, requiring all trucks to be equipped with back-up alarms, which sound automatically whenever the vehicle is put in reverse gear, at all times. The purpose of this alarm, affixed to the back of the truck near the driver's side taillight, is to warn people behind the truck, particularly those in its blind spot, that the vehicle is in reverse.

When Gauthier was first assigned to AT–56, the truck had a functioning back-up alarm, but around November, 2000, he realized that the back-up alarm was missing. The defendant's mechanic determined that the vehicle's electrical system was working properly: it simply needed a new alarm installed. The mechanics did not have a back-up alarm in stock at the time. Although Gauthier continued to operate the truck without the back-up alarm, he noted its absence each day in a required safety report. All of the other trucks Gauthier had operated for the defendant had back-up alarms, and at least one other of the defendant's drivers never had operated a truck without an alarm.

In late 2000, the defendant was hired to provide asphalt for a roadway widening and improvement project on Route 28, a State highway, in Centerville. On December 1, 2000, the defendant's drivers were repaving a mile-long section of Route 28 near the entrance to a shopping mall. Although different sections of the four-lane highway were closed as the paving work progressed, the mall was open for business, and at least one lane always remained open to traffic. To ensure that vehicles could enter and leave the mall safely, the victim, a sixty-one year old police officer, was stationed near the driveway leading into the mall parking lot, directing traffic through the work site. The victim had worked such details before and requested this assignment at the site. He wore a full-length bright orange raincoat and a hat with ear flaps, but he had no difficulty hearing or communicating with the work crew.

On December 1, Gauthier was assigned to haul asphalt from a plant in Rochester to the work site in Centerville, and he made three trips from the plant to Centerville that day. His truck weighed more than 79,000 pounds when carrying a full load of asphalt. When Gauthier delivered his first load, he beeped his “city horn” as he backed up to the paver, to warn people nearby that the truck was moving. He did not use his horn while backing up with the second load of asphalt because no one was near his truck at that time.

When he arrived at the work site with his third load of asphalt, Gauthier conversed briefly with several other drivers and the victim to discuss the order in which the drivers should deliver their asphalt. They decided that Gauthier should back up first, and he told the victim that he was next in line for the paver. Another driver then asked the victim to “watch our back[s]” as the trucks backed through the intersection. No one informed the victim that Gauthier's truck did not have a functioning back-up alarm. When Gauthier returned to his truck, he turned off the radios, rolled down his window, checked his mirrors, put the truck in its lowest reverse gear, and began to back up. A number of witnesses estimated his speed at no more than a few miles per hour. Before Gauthier started to back up, he noticed that the victim was walking toward the paver, with his back to the truck. At one point while Gauthier was backing up, he had to stop to allow a car leaving the mall to pass. When he resumed moving, another driver realized that the victim was in Gauthier's blind spot and repeatedly blasted his truck's air horn, but neither the victim nor Gauthier reacted. Other drivers also saw that the victim was in Gauthier's blind spot, and tried to get Gauthier to stop by shouting and waving their arms, but to no avail: Gauthier's truck struck the victim, pinning his legs beneath its rear wheels. As soon as Gauthier saw the victim trapped under his rear axle, he pulled the truck forward. The victim was conscious and alert when he was taken to a hospital, but he died as a result of his injuries later that day.

Gauthier was charged with manslaughter, motor vehicle homicide, and failure to use due care in backing up. Before the defendant's trial, the manslaughter charge against Gauthier was dismissed, and the remaining charges were continued without a finding for three years. Gauthier's driving privileges were restricted, and he paid a fine.

The jury convicted the corporation of motor vehicle homicide, but found it not guilty of involuntary manslaughter. At sentencing, the defendant was fined $2,500. The Appeals Court, however, reversed the conviction, finding insufficient evidence of Gauthier's negligence because while he backed up he “took all reasonable precautions” to ensure the victim's safety. Commonwealth v. Angelo Todesca Corp., 62 Mass.App.Ct. 599, 607–608, 818 N.E.2d 608 (2004). The Appeals Court also concluded that there was insufficient evidence that the absence of a functioning back-up alarm caused the collision: the victim knew the truck was going to back up and “did not need to be warned by a beeping sound.” Id. at 608, 818 N.E.2d 608. The Appeals Court found it “speculative” to suggest that a back-up alarm could have prevented the collision because the victim did not react to the much louder air horns sounded by other drivers. Id. at 608–609, 818 N.E.2d 608.

2. Standard of review. In determining whether the evidence presented at trial was sufficient to sustain a conviction, we must view that evidence in the light most favorable to the Commonwealth to determine whether “ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318–319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “A jury may find a crime proved beyond a reasonable doubt even though the inference of guilt from the facts established is not inescapable or necessary.” Commonwealth v. Gagnon, 408 Mass. 185, 200–201, 557 N.E.2d 728 (1990). Such inferences need only be reasonable and possible. See, e.g., Commonwealth v. Longo, 402 Mass. 482, 487, 524 N.E.2d 67 (1988), quoting Commonwealth v. Casale, 381 Mass. 167, 173, 408 N.E.2d 841 (1980). “If, from the evidence, conflicting inferences are possible, it is for the jury to determine where the truth lies, for the weight and credibility of the evidence is wholly within their province.” Commonwealth v. Lao, 443 Mass. 770, 779, 824 N.E.2d 821 (2005). Likewise, in reviewing a decision on a rule 25(b)(2) motion for a required finding of not guilty following a guilty verdict, this court “does not properly exercise discretion concerning the weight or integrity of the evidence, but instead must assess the legal sufficiency of the evidence by the standard set out in Commonwealth v. Latimore, [ supra ].” Commonwealth v. Doucette, 408 Mass. 454, 456, 559 N.E.2d 1225 (1990).
3. Corporate liability for motor vehicle homicide. As a threshold matter, the parties agree that corporate criminal liability is governed by the standards outlined in Commonwealth v. Beneficial Fin. Co., 360 Mass. 188, 275 N.E.2d 33 (1971), cert. denied sub nom. Farrell v. Massachusetts, 407 U.S. 910, 92 S.Ct. 2433, 32 L.Ed.2d 683 (1972), and sub nom. Beneficial Fin. Co. v. Massachusetts, 407 U.S. 914, 92 S.Ct. 2433, 32 L.Ed.2d 689 (1972), and in Commonwealth v. L.A.L. Corp., 400 Mass. 737, 511 N.E.2d 599 (1987). In Commonwealth v. Beneficial Fin. Co., supra at 256, 275 N.E.2d 33, we held that before criminal liability may be imposed on a corporate defendant:

“The Commonwealth must prove that the individual for whose conduct it seeks to charge the corporation criminally was placed in a position by the corporation where he had enough power, duty, responsibility and authority to act for and in behalf of the corporation to handle the particular business or operation or project of the corporation in which he was engaged at the time that he committed the criminal act ... and that he was acting for and in behalf of the corporation in the accomplishment of that particular business or operation or project, and that he committed a criminal act while so acting.”

We rejected the argument that corporations can be liable criminally for conduct of employees only if such conduct “was performed, authorized, ratified, adopted or tolerated by” corporate officials or managers. Id. at 254, 275 N.E.2d 33.

We reiterated these principles in Commonwealth v. L.A.L. Corp., supra at 743, 511 N.E.2d 599, in which we concluded that a close corporation could be criminally liable for the conduct of employees who sold alcohol to minors, despite the fact that corporate officials had no knowledge of the sales, and that corporate policy strictly prohibited selling alcohol to minors. In addition to emphasizing that there is no requirement that corporate officials had knowledge of their employees' criminal acts, we also explained that the intent element of an offense does not change the applicable principle of corporate criminal liability: the standards outlined in Commonwealth v. L.A.L. Corp., supra at 743 & n. 3, 511 N.E.2d 599, apply to employee crimes that are malum in se and malum prohibitum.

The Appeals Court correctly summarized the elements of corporate criminal liability:

“To prove that a corporation is guilty of a criminal offense, the Commonwealth must prove the following three elements beyond a reasonable doubt: (1) that an individual committed a criminal offense; (2) that at the time of committing the offense, the individual ‘was engaged in some particular corporate business or project’; and (3) that the individual had been vested by the corporation with the authority to act for it, and on its behalf, in carrying out that particular corporate business or project when the offense occurred.”

Commonwealth v. Angelo Todesca Corp., supra at 605, 818 N.E.2d 608, citing Model Jury Instructions for Use in the District Court § 5.07 (1995); Commonwealth v. L.A.L. Corp., supra at 744, 511 N.E.2d 599.

Although the parties do not challenge these standards of corporate criminal liability on appeal, there is significant disagreement about the application of these principles to this case. The defendant appears to concede that Gauthier was engaged in corporate business when he struck the victim, and that he was authorized by the defendant to conduct such business. Thus, the essence of the defendant's arguments deals with the first element of corporate criminal liability: namely, the requirement that an employee committed a criminal offense. The defendant maintains that a corporation never can be criminally liable for motor vehicle homicide under G.L. c. 90, § 24G (b), as a matter of law because the language of a criminal statute must be construed strictly, and a “corporation” cannot “operate” a vehicle. The Commonwealth, however, argues that corporate liability is necessarily vicarious, and that a corporation can be held accountable for criminal acts committed by its agents, including negligent operation of a motor vehicle causing the death of another, if the elements of corporate criminal liability discussed above are satisfied.

We agree with the Commonwealth. Because a corporation is not a living person, it can act only through its agents. Commonwealth v. L.A.L. Corp., supra at 743, 511 N.E.2d 599. See Sarvis v. Boston Safe Deposit & Trust Co., 47 Mass.App.Ct. 86, 96, 711 N.E.2d 911 (1999), quoting Sunrise Props., Inc. v. Bacon, Wilson, Ratner, Cohen, Salvage, Fialky & Fitzgerald, P.C., 425 Mass. 63, 66, 679 N.E.2d 540 (1997) (“A corporation is a creature of the law ... ‘[that] can only act through its agents' ”); Commonwealth v. Duddie Ford, Inc., 28 Mass.App.Ct. 426, 441, 551 N.E.2d 1211 (1990), S.C., 409 Mass. 387, 566 N.E.2d 1119 (1991), quoting Commonwealth v. Beneficial Fin. Co., supra at 263–264, 275 N.E.2d 33 (“corporate criminal liability is necessarily vicarious”). By the defendant's reasoning, a corporation never could be liable for any crime. A “corporation” can no more serve alcohol to minors, or bribe government officials, or falsify data on loan applications, than operate a vehicle negligently: only human agents, acting for the corporation, are capable of these actions. Nevertheless, we consistently have held that a corporation may be criminally liable for such acts when performed by corporate employees, acting within the scope of their employment and on behalf of the corporation. See Commonwealth v. L.A.L. Corp., supra (sale of alcohol to minors); Commonwealth v. Beneficial Fin. Co., supra (bribes to government officials); Commonwealth v. Duddie Ford, Inc., supra (false data on loan applications). The defendant's argument thus finds no support in our corporate liability jurisprudence. Legislative intent likewise does not support the defendant's reasoning: by including corporations within the general statutory definition of “person,” the Legislature evinced a general intent to hold corporations legally accountable for their actions. Because no intention to exclude corporations from the definition of “persons” or “whoever” appears in G.L. c. 90, we conclude that a corporation may be criminally liable for violation of G.L. c. 90, § 24G ( b ), in accordance with the principles of corporate criminal liability explicated in Commonwealth v. Beneficial Fin. Co., supra, and Commonwealth v. L.A.L. Corp., supra.FN12

The defendant further contends that it cannot be found vicariously liable for the victim's death because corporate criminal liability requires criminal conduct by the agent, which is lacking in this case. Operating a truck without a back-up alarm, the defendant notes, is not a criminal act: no State or Federal statute requires that a vehicle be equipped with such a device. Although the defendant is correct that criminal conduct of an agent is necessary before criminal liability may be imputed to the corporation, it mischaracterizes the agent's conduct in this case. Gauthier's criminal act, and the conduct imputed to the defendant, was not simply backing up without an alarm, as the defendant contends; rather, the criminal conduct was Gauthier's negligent operation of the defendant's truck, resulting in the victim's death, in violation of G.L. c. 90, § 24G ( b ). Clearly, a corporation cannot be criminally liable for acts of employee negligence that are not criminal; however, G.L. c. 90, § 24G (b), criminalizes negligence in a very specific context (the operation of a motor vehicle on a public way) and with a specific outcome (resulting in death). Furthermore, nothing in that statute requires that the negligence be based on a statutory violation; the fact that a back-up alarm is not required by statute, then, is irrelevant to the issue whether vehicular homicide committed by an employee can be imputed to the corporation. Cf. Akron v. Redman, 70 Ohio Misc. 33, 36, 435 N.E.2d 695 (1981) (“vehicular homicide now includes negligence in general and is not limited to violations of particular laws relating to traffic”). If a corporate employee violates G.L. c. 90, § 24G ( b ), while engaged in corporate business that the employee has been authorized to conduct, we can see no reason why the corporation cannot be vicariously liable for the crime.

4. Sufficiency of evidence of negligence. Applying the standards of corporate criminal liability described above, the Commonwealth first must prove that the defendant's employee or agent committed the criminal act with which the corporation was charged. Here, that criminal act is homicide by motor vehicle, as defined in G.L. c. 90, § 24G (b). The elements necessary to find criminal culpability for vehicular homicide under this statute are “(1) operation of a motor vehicle, (2) upon a public way, (3) recklessly or negligently so as to endanger human life or safety, (4) thereby causing the death of a person.” Commonwealth v. Burke, 6 Mass.App.Ct. 697, 699, 383 N.E.2d 76 (1978). Thus, for the defendant to be liable, the Commonwealth must prove that Gauthier, the defendant's driver, operated the truck negligently.

“A finding of ordinary negligence suffices” to establish homicide by motor vehicle in violation of G.L. c. 90, § 24G (b). Commonwealth v. Jones, 382 Mass. 387, 389, 416 N.E.2d 502 (1981). Commonwealth v. Diaz, 19 Mass.App.Ct. 29, 36, 471 N.E.2d 741 (1984). “Negligence ... in its ordinary sense, is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which ... the person of ordinary caution and prudence ought to exercise under the particular circumstances.” Beaver v. Costin, 352 Mass. 624, 626, 227 N.E.2d 344 (1967), quoting Altman v. Aronson, 231 Mass. 588, 591, 121 N.E. 505 (1919). The operator of a motor vehicle has a duty to exercise ordinary care for the safety of others while operating the vehicle. Catanese v. MacEntee, 333 Mass. 132, 128 N.E.2d 783 (1955) (pedestrian and motorist). See R.J. Kenney, Jr., & T.J. Farris, Motor Vehicle Law and Practice § 1.2, at 3 (3d ed.1998). “[T]he amount of care that the prudent person would exercise varies with the circumstances, the care increasing with the likelihood and severity of the harm threatened.” Goldstein v. Gontarz, 364 Mass. 800, 805, 309 N.E.2d 196 (1974).

Bearing in mind that “juries are uniquely qualified to apply the reasonable person standard,” O'Connor v. SmithKline Bio–Science Labs., Inc., 36 Mass.App.Ct. 360, 363, 631 N.E.2d 1018 (1994), we must determine whether a reasonable jury could have found that Gauthier failed to use ordinary care in backing up the defendant's truck at the work site. The defendant argues, and the Appeals Court concluded, that there was insufficient evidence of Gauthier's negligence because he did everything that a reasonably prudent person would have done in the circumstances: he told the victim that he was about to back up, rolled down his window, checked his mirrors, turned off his radios, and operated the truck very slowly. Commonwealth v. Angelo Todesca Corp., 62 Mass.App.Ct. 599, 607–608, 818 N.E.2d 608 (2004).
However, a reasonable jury could have found that Gauthier was negligent based on other evidence adduced at trial. It was undisputed that Gauthier's truck was not equipped with a functioning back-up alarm at the time of the collision, and that he knew the alarm was missing. Although a back-up alarm was not required by statute, the defendant had a written safety policy mandating that all its trucks be equipped with such alarms. See note 4, supra. An employee's violation of his employer's rules, intended to protect the safety of third persons, is evidence of the employee's negligence, for which the employer may be held liable. See Clough v. New England Tel. & Tel. Co., 342 Mass. 31, 37, 172 N.E.2d 113 (1961), quoting Stevens v. Boston Elevated Ry., 184 Mass. 476, 478, 69 N.E. 338 (1904). Furthermore, evidence of custom or practice, even when not embodied in a written policy, also may be considered in determining whether conduct was negligent: “it may be evidence of a defendant's negligence, also, that he failed to follow his usual practice or habit in operating his vehicle, that the plaintiff knew of such custom, relied upon it, and suffered injury as a result.” R.J. Kenney, Jr., & T.J. Farris, Motor Vehicle Law and Practice, supra at § 2.13, at 59. See Kelly v. Boston & Me. R.R., 319 Mass. 603, 607–609, 66 N.E.2d 807 (1946) (testimony relating to “custom or practice” in delivery of railroad cars properly admitted in trial of railroad for negligence); Hanley v. Boston & Me. R.R., 286 Mass. 390, 398–399, 190 N.E. 501 (1934), cert. denied, 293 U.S. 597, 55 S.Ct. 112, 79 L.Ed. 690 (1934) (evidence of defendant's “general custom” of warning of approaching train with series of short whistle blasts properly admitted on issue of defendant's negligence); Restatement (Third) of Torts § 13(b) & comment f (Proposed Final Draft 2005) (“An actor's departure from the custom of the community, or of others in like circumstances, in a way that increases risk is evidence of the actor's negligence but does not require a finding of negligence”).

Here, Gauthier operated the truck without a back-up alarm, in clear violation of the defendant's own safety policy. The Commonwealth also presented evidence that the defendant's customary practice was to install back-up alarms on its trucks. Other drivers at the work site had functioning back-up alarms, and although they spoke moments before the collision, Gauthier never informed the victim that his truck did not have an alarm. The jury, then, could have inferred that the victim, a veteran police officer, was aware that the defendant's custom was to equip its trucks with back-up alarms, and that the victim expected to hear a back-up alarm when a driver operated a truck in reverse. Thus, whether framed as Gauthier's failure to adhere to his employer's safety rules, or as his departure from a customary practice relied on by the victim, the result is the same: the jury reasonably could have concluded, on either theory, that Gauthier was negligent in operating the defendant's truck without a back-up alarm.

Contrary to the dissent's further assertion that there was no evidence that the victim knew of, and relied on, the custom, 446 Mass. at 151, 842 N.E.2d at 948, the jury reasonably could have inferred this from the concerns both Gauthier and other drivers had about the absence of a back-up alarm from Gauthier's truck. Testimony that another truck, farther away from the victim but backing up at the same time as Gauthier, did have a functioning alarm, which sounded as its driver backed toward the paver, also could support an inference that the victim would have expected Gauthier's truck to have a similar alarm. (As discussed in greater detail, 446 Mass. at 141, 842 N.E.2d at 941–942, a back-up alarm sounding on another truck may not have provided sufficient warning to the victim about the location of Gauthier's vehicle.) In addition, at least two other drivers, employed by the defendant and working on the repaving project, testified that on the day of the collision, their trucks were equipped with functional back-up alarms, which would have sounded when they delivered asphalt to the paver. The jury could have relied as well on their common experience that large trucks can be expected to have such alarms, and they could have inferred that the defendant installed these alarms precisely because people have come to expect them.

Because simple negligence, determined by the same standard employed in tort law, suffices for a conviction of vehicular homicide under G.L. c. 90, § 24G ( b ), other evidence before the jury also could have supported a finding of negligence by Gauthier. Commonwealth v. Jones, 382 Mass. 387, 389, 416 N.E.2d 502 (1981); Commonwealth v. Burke, 6 Mass.App.Ct. 697, 699–701, 383 N.E.2d 76 (1978). For example, the jury may have concluded that reasonable care would have required Gauthier to sound his city horn before backing up, as he did earlier that day; or that Gauthier, aware that the victim was behind him and that his truck has a blind spot, should have located the officer, clad in a bright orange raincoat, in his mirror before backing up again; or that Gauthier should have stopped his truck as soon as he heard other drivers' air horns sounding.

5. Sufficiency of evidence of causation. The Appeals Court held that the Commonwealth presented insufficient evidence of causation, reasoning that there was “no evidence that a back-up alarm would have changed the result, and thus no evidence of a causal nexus.” Commonwealth v. Angelo Todesca Corp., supra at 608, 818 N.E.2d 608. The defendant claims that the Appeals Court properly determined that the victim would not have heard a back-up alarm on Gauthier's truck because he did not respond to air horns sounded by other drivers or the back-up alarm of the truck behind Gauthier. Id. The Commonwealth, however, argues that air horns could not substitute for the distinctive sound of a back-up alarm, and that a reasonable jury could have determined that the victim would have reacted differently had the defendant's truck been equipped with such an alarm.

[T]he appropriate standard of causation to be applied in a negligent vehicular homicide case under § 24G is that employed in tort law.” Commonwealth v. Berggren, 398 Mass. 338, 340, 496 N.E.2d 660 (1986). “Whether negligent conduct is the proximate cause of an injury depends ... on whether the injury to the plaintiff was a foreseeable result of the defendant's negligent conduct.” Kent v. Commonwealth, 437 Mass. 312, 320, 771 N.E.2d 770 (2002). Such conduct may be a proximate cause of death “if, ‘in the natural and continuous sequence,’ it produces the death, and the death would not have occurred in its absence.” Commonwealth v. Osachuk, 43 Mass.App.Ct. 71, 73, 681 N.E.2d 292 (1997), quoting Commonwealth v. Rhoades, 379 Mass. 810, 825, 401 N.E.2d 342 (1980). “Subject to those comparatively rare situations when a court is able to draw the outer limits, questions of proximate cause are in the province of the jury.” Hopping v. Whirlaway, Inc., 37 Mass.App.Ct. 121, 125, 637 N.E.2d 866 (1994).

Here, a reasonable jury could have found that the truck's collision with the victim, and the victim's ensuing death, was a foreseeable result of Gauthier's operating the defendant's truck in reverse without the customary back-up alarm, and without informing the victim that the alarm was missing. We do not agree with the Appeals Court's conclusion that the fact that the victim did not move out of the truck's path means that he did not hear the back-up alarm on the other truck, and therefore would not have heard a back-up alarm on Gauthier's truck: the jury may have concluded that the victim did hear the back-up alarm on the other truck, but that he reasonably believed that vehicle to be a safe distance away. The jury also could have inferred, based on testimony concerning the location of a back-up alarm on the vehicle, that an alarm on Gauthier's truck would have sounded practically in the victim's ear, alerting him to the truck's movement in time to get out of its way. In addition, the jury could have inferred, based on testimony as well as on their life experiences and common sense, that the back-up alarm makes a distinctive beeping sound, intended to warn people behind the vehicle that it is operating in reverse, and that the victim did not realize Gauthier's truck was backing up because he did not hear that sound. Despite their volume, air horns sounded by nearby drivers would not substitute for the unique sound of a back-up alarm on Gauthier's truck. In fact, Gauthier heard the air horns of the other trucks but did not know why they were sounding. Thus, there was sufficient evidence from which the jury could have found that Gauthier's negligence caused the accident resulting in the victim's death.

The defendant also claims that it cannot be liable for vehicular homicide because the victim's negligence was the sole cause of his death. “In criminal cases, as opposed to civil negligence suits, a victim's contributory negligence, even if it constitutes a substantial part of proximate cause (but not the sole cause), does not excuse a defendant whose conduct also causes the death of another.” Commonwealth v. Campbell, 394 Mass. 77, 87, 474 N.E.2d 1062 (1985). While the defendant is correct that it cannot be liable if the victim's conduct was the sole cause of the accident, it was for the jury to determine whether, and to what extent, the victim's conduct may have contributed to the collision. Both sides argued this issue extensively at trial, and because the jury were properly instructed on causation, they must have determined that Gauthier's negligence was a substantial cause of the collision, even if the victim's conduct also was a factor. See Lawrence Sav. Bank v. Levenson, 59 Mass.App.Ct. 699, 707, 797 N.E.2d 485 (2003) ( “question of causation is generally one of fact for the jury”). Thus, the defendant's claim that the victim was the sole cause of the collision fails.

6. Sufficiency of evidence of operation on a public way. “[I]t is essential that a vehicular homicide occur ‘upon a way or in a place to which members of the public have access.’ ” Commonwealth v. Geisler, 14 Mass.App.Ct. 268, 276, 438 N.E.2d 375 (1982), quoting Commonwealth v. Jones, supra at 393, 416 N.E.2d 502. The definition of “[w]ay” in G.L. c. 90, § 1, includes “any public highway.” Clearly, Route 28, in normal circumstances, is a public “way” for the purposes of the vehicular homicide statute. However, the issue before us is whether the jury reasonably could have found that the section of the highway on which the collision occurred was open to the public. “[I]t is the objective appearance of the way that is determinative of its status.... It is sufficient if ‘the physical circumstances of the way are such that members of the public may reasonably conclude that it is open for travel to invitees or licensees.’ ” Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549, 672 N.E.2d 16 (1996), quoting Commonwealth v. Hart, 26 Mass.App.Ct. 235, 237–238, 525 N.E.2d 1345 (1988). The defendant claims that the portion of the road on which Gauthier's truck struck the victim was closed to the public, based on the testimony of a highway engineer and another witness regarding the placement of traffic cones. The Commonwealth, however, argues that the road was open because the public could cross it to gain access to the shopping mall.

We agree with the Commonwealth. Although sections of the highway were closed during roadway paving, at least one lane remained open to traffic. The jury heard conflicting testimony about the location of cones on the highway, and jurors may have credited the testimony of those witnesses who stated that no cones had been placed near the mall entrance. Furthermore, the mall was open for business, and the victim's responsibility was to direct traffic in and out of the mall parking lot, across the work site. In fact, a witness testified that a car leaving the mall cut across Gauthier's path moments before the collision. The jury thus could have determined that the road was accessible to members of the public who wished to visit the mall, satisfying the public way element of the vehicular homicide statute.

7. Conclusion. For the foregoing reasons, we conclude that the evidence was sufficient to support the conviction.

Judgment affirmed.
[Dissent omitted here and footnotes omitted hereinabove].