George W. BURCH, Individually and as father and next friend of Elena Burch, a minor, and William Burch, a minor, and Susan Burch, Appellants, v. AMSTERDAM CORPORATION, a Foreign Corporation, and The Syracuse Adhesives Company, a Foreign Corporation, Appellees.
*1080 Irwin H. Liptz, Washington, D. C., with whom Armand I. Robinson, Washington, D. C., was on the brief, for appellants.
Curtis E. von Kann, Washington, D. C., with whom A. Roy DeCaro, F. Wainwright Barnes and Philip F. Herrick, Washington, D. C., were on the brief, for appellees.
Before FICKLING and MACK, Associate Judges, and REILLY, Chief Judge, Retired.
Appellants George and Susan Burch brought this action to recover damages for personal injuries sustained by Mr. Burch in an explosion and flash fire that occurred while he was applying a floor tile adhesive sold to Mrs. Burch by appellee Amsterdam Corporation. A third-party complaint was filed against appellee Syracuse Adhesives Company, the manufacturer of the product. Appellants primarily alleged that Amsterdam negligently failed to provide adequate warnings on the label affixed to the can of adhesive and failed to comply with the labeling requirements of the Federal Hazardous Substances Act, 15 *1081 U.S.C. § 1261 et seq. (1970). The trial court, after determining that the label satisfied applicable federal standards, granted Amsterdam's motion for summary judgment. We reverse.
Viewed in the light most favorable to appellants, the record reveals the following facts. On March 11, 1972, Mrs. Burch visited Amsterdam's retail store in the District of Columbia to purchase materials for the installation of a tile floor. She informed a salesman at the store that her husband planned to install floor tiles in the kitchen of their home and that she needed all the materials and equipment required for the project. The salesman selected a number of items, which she purchased. Among these was a large can of VICO-102, a floor tile adhesive.
On the next day, Sunday, March 12, 1972, George Burch began the planned project. He had assisted in laying floor tiles only once before. Therefore, before using the VICO-102 adhesive, he carefully read the instructions on the label of the can, which stated that the mixture was flammable, should not be used "near fire or flame," and required "adequate ventilation." In order to provide more ventilation, he opened windows in the kitchen-dining room area and turned on ductal fans and a large air conditioner. Although he checked the area to make sure there were no flames, he did not think of extinguishing the pilot light in the gas stove.
Mr. Burch followed the instructions on the label and began applying a first coat of adhesive to the kitchen floor. Approximately fifteen to twenty minutes later, he had just covered the edge of the floor by the stove when he heard, subliminally, a noisea "whoosh." He had a sense of time being elongated, felt searing heat and saw the skin peeling from his body. Mrs. Burch, hearing her husband scream, ran into the kitchen to find the room on fire. Mr. Burch suffered serious burns which necessitated immediate trauma treatment, and extended hospitalization and convalescence (to the detriment of his minor children and wife). The explosion generated such pressure as to break a window in the nearby children's room and the heat was so intense as to melt pewter.
The product being used by Mr. Burch is an extremely flammable mastic adhesive with a flash point at or below twenty degrees Fahrenheit. It is a putty-like substance and it also emits a vapor which readily ignites. It was manufactured by Syracuse and sold to Amsterdam pursuant to a "private label account." Under this arrangement, Amsterdam provided the label and distributed the product under the name of VICO-102. The actual labels were printed and sent by Amsterdam to the Syracuse factory where they were affixed to the cans of adhesive.
In January 1974, appellants filed a complaint alleging that Amsterdam was negligent in labeling the adhesive. Specifically, the complaint stated that Amsterdam negligently "failed through proper labeling to warn the plaintiffs of the hazards to be incurred in the use of such product"; failed to comply with the labeling requirements of the Federal Hazardous Substances Act; and willfully attempted to mislead appellants through use of a withdrawn commercial standard. Amsterdam, in turn, filed *1082 a third-party complaint alleging that since Syracuse manufactured and labeled the product, it was liable for "any negligence, breach of warranty, and/or violation of Federal regulations." In January 1975, Amsterdam filed a motion for summary judgment claiming that it was entitled to judgment as a matter of law because the label met the requirements of the Federal Hazardous Substances Act and because a federal regulation with more stringent requirements was inapplicable. Appellants responded to the motion in two ways: they filed an opposition, primarily arguing that the applicability of the federal regulation turned on questions of fact; and they also filed a motion to amend the complaint by adding Syracuse as a party defendant and by including causes of action based upon strict liability and breach of warranty.
It was undisputed that VICO-102 is a mastic adhesive and is "extremely flammable" and a "hazardous substance" within the meaning of the Federal Hazardous Substances Act, which prescribes precautionary labeling requirements for certain products used in the household.
Appellants apparently conceded that the warnings satisfied the minimum standards of the Act. They argued instead that the label was insufficient under a regulation establishing special requirements for "contact adhesive and similar liquid or semi-liquid articles." 16 C.F.R. § 1500.133 (1970). Among other things, the regulation required a specific warning to extinguish all pilot lights.*1083 Both parties, in their arguments before the trial court, concentrated on the issue of whether mastic adhesive was "semi-liquid" and "similar" to contact adhesive. Thus, the trial court determined that the only issue present in the case involved the interpretation of the federal regulation, which was a question of law. It ruled that the regulation was not intended to cover mastic adhesives and that since Amsterdam had complied with the requirements of the Federal Hazardous Substances Act, it was entitled to judgment as a matter of law. Appellants' motion to amend the complaint was denied in view of the summary judgment.
Appellants present a number of arguments on appeal, one of which is that the adequacy of the warning on the VICO-102 label is a genuine issue of material fact which precluded entry of summary judgment. Specifically, they contend that the Federal Hazardous Substances Act establishes only the minimum standards required of a seller or a manufacturer of a product; and that even if the VICO-102 label satisfied all applicable federal requirements, the warning was not adequate as a matter of law.
Before discussing the merits of this argument, we must first address appellees' contention that entry of summary judgment was proper because the trial court correctly ruled on the issues framed by the summary judgment papers. The complaint clearly stated a cause of action for negligence based on (1) failure to provide adequate warnings on the VICO-102 label and (2) failure to comply with the labeling requirements of the Federal Hazardous Substances Act. In its motion for summary judgment, Amsterdam addressed only the latter point, apparently assuming that compliance with the federal requirements precluded a finding of negligence. Appellants did not clearly articulate their disagreement with this assumption in their opposition to the motion, although at the hearing their counsel frequently referred to the federal regulations as "minimum standards." The trial court, after expressly recognizing that this is a negligence action, stated, "It may be that the standards set forth under the Federal Hazardous Substances Act are not adequate to protect the public in the use of flammable or dangerous commodities. It is not the function of the Court to set such standards but merely to interpret such standards as set forth by the experts."
In reviewing the propriety of a summary judgment, we must determine whether there was any issue of fact pertinent to the ruling and also whether the substantive law was correctly applied. A summary judgment is properly granted only where the pleadings and other materials on file demonstrate that no genuine issue *1084 of fact remains for trial and that the moving party is entitled to judgment as a matter of law. Furthermore, it is the movant's burden to demonstrate the absence of any factual issue and also to show its entitlement to a favorable determination under applicable principles of substantive law. If the movant does not meet its initial burden, summary judgment must be denied even where the opponent comes forth with nothing. Thus, in the case at hand, it was Amsterdam's obligation to show that summary judgment in its favor was warranted under applicable legal principles. If the substantive law was incorrectly applied and there remains an issue of fact to be tried, the summary judgment must be reversed.
Under common law, a seller has a duty to give adequate warnings of the hazards involved in the use of a product and instructions for its safe use if he knows or has reason to know that the product is likely to be dangerous. Edwards v. Mazor Masterpieces, Inc., 111 U.S.App.D.C. 202, 295 F.2d 547 (1961); W. Prosser, The Law of Torts § 96 (4th ed. 1971); Restatement (Second) of Torts § 388 (1965). The gravamen of appellants' negligence claim was that the VICO-102 label did not contain adequate warnings and precautionary instructions, particularly with respect to use of the product near pilot lights. We assume, without deciding, that the trial court was correct in ruling that the label provided all the warnings and directions required by the Federal Hazardous Substances Act and appropriate regulations. The central issue presented in this case is whether compliance with the statute precluded a finding that Amsterdam was negligent in failing to give additional warnings.
The Federal Hazardous Substances Act prohibits the sale in interstate commerce of a hazardous substance without a label containing certain information, including specific warnings and instructions *1085 on use of the product. 15 U.S.C. §§ 1261, 1263 (1970). The Act provides criminal penalties and other sanctions for violation of the labeling requirements. Id. §§ 1264, 1265, 1267. The express purpose of the legislation was to protect consumers from dangers inherent in the use of common household products. S.Rep.No.1158, 86th Cong., 2d Sess. (1960); H.R.Rep.No.1861, 86th Cong., 2d Sess. (1960), U.S.Code Cong. & Admin.News 1960, p. 2833. We are aware of nothing in the statute itself or the legislative history which implies that Congress intended to limit a seller's common law "duty to warn." Rather, the inherent legislative policy was to provide to consumers a greater degree of protection than was provided by common law remedies. See Hill v. Husky Briquetting, Inc., 54 Mich.App. 17, 20-21, 220 N.W.2d 137, 139, aff'd, 393 Mich. 136, 223 N.W.2d 290 (1974). See also Raymond v. Riegel Textile Corp., 484 F.2d 1025, 1027 (1st Cir. 1973).
As general rule, a standard established by a criminal statute "is no more than a minimum, and it does not necessarily preclude a finding that the actor was negligent in failing to take additional precautions." Prosser, supra § 36 at 203. See Restatement, supra § 288C. However, if there is a situation "clearly identical with that contemplated by the statute . . . and no special circumstances are involved, it may be found, and can be ruled as a matter of law that the actor has done his full duty by complying with the statute." Prosser, supra § 36 at 203-04. Appellees contend that the Federal Hazardous Substances Act provides the only specific standard of proper labeling, and that since there were no special circumstances which required warnings beyond those prescribed by the statute, compliance with the Act established due care as a matter of law. We find this argument unpersuasive.
The Federal Hazardous Substances Act was enacted to improve warnings on the labels of over 300,000 common household products. S.Rep.No.1158, supra at 1. Many of these hazardous products may involve special dangers which would require more detailed and specific instructions than the general warnings prescribed by the Act. In light of the extreme flammability of VICO-102, we do not agree that there were no special circumstances here which may have required a higher degree of care.
Moreover, the overwhelming majority of courts presented with similar arguments in product liability cases have held that compliance with federal and state requirements for the manufacture and sale of products does not immunize a manufacturer or seller from liability. In one case, it was held that compliance with the Federal Hazardous Substances Act, in particular, was "not conclusive or controlling in defining defendant's common law liability for failure to warn." Jonescue v. Jewel Home Shopping Service, 16 Ill.App.3d 339, *1086 345, 306 N.E.2d 312, 316 (1973).See also L. Frumer & M. Friedman, Products Liability §§ 8.07,  (1975). In numerous other cases involving similar federal or state statutes, courts have held that mere compliance with regulatory labeling requirements does not preclude a finding that additional warnings should have been given. Thus, the generally accepted rule is that such requirements prescribe only the minimum warnings required of a seller or manufacturer. As one court has stated, the warnings required by federal regulations "may be only minimal in nature and when the manufacturer or supplier knows of, or has reason to know of, greater dangers not included in the warning, its duty to warn may not be fulfilled." Stevens v. Parke, Davis & Company, 9 Cal. 3d 51, 107 Cal. Rptr. 45, 53, 507 P.2d 653, 661 (1973) (en banc). Following this view, we hold that compliance with the Federal Hazardous Substances Act did not preclude a finding that Amsterdam was negligent for failing to supply adequate warnings.
In light of our holding, the summary judgment can stand only if the warnings at issue were adequate as a matter of law under ordinary negligence principles. The seller or manufacturer of a product whose use could result in foreseeable harm has a duty to give a warning which adequately advises the user of attendant risks and which provides specific directions for safe use. The sufficiency *1087 of a particular warning is ordinarily a question for the jury.
The particular hazard encountered by appellants in using VICO-102 was that fumes or vapors from the product could ignite on contact with a pilot light, resulting in a violent fire or explosion. The pertinent cautionary statements on the VICO-102 label were: "DANGER! EXTREMELY FLAMMABLE . . . CAUTION: FLAMMABLE MIXTURE. DO NOT USE NEAR FIRE OR FLAME. . . `USE WITH ADEQUATE VENTILATION.'" Given the potential for serious injury, we cannot say as a matter of law that this warning adequately alerted users of the dangers inherent in the product. Among other things, an ordinary *1088 user might well not have realized that "near fire or flame" included nearby pilot lights or that fumes and vapors, as well as the adhesive itself, were extremely flammable. Whether more specific instructions or warnings were required is a question of fact for the jury.
Accordingly, the summary judgment is reversed. Since leave to amend the complaint was denied solely on the basis of the summary judgment, the order denying appellants' motion is also reversed, and the case is remanded to the trial court with instructions to reconsider the motion to amend.
Although the majority opinion seems to concedeas I think we mustthat the trial court correctly found as a matter of law that the warning label here satisfied the elaborate regulations with respect to mastic adhesives promulgated under the Federal Hazardous Substances Actit disapproves the order of summary judgment on the ground that whether or not the label was adequate presented a question of negligence which should have been submitted to a jury. It relies upon an impressive array of authorities from other jurisdictions for the proposition that regulations under safety products acts set only minimum standards, and consequently compliance with such requirements does not relieve manufacturers or dealers in dangerous substances from the burden of including adequate warnings.
I have no quarrel with this thesis provided that it means that where a manufacturer, knowing the properties of the substance, can reasonably foresee hazards to a user which are not covered by the statutory requirements he is under a duty to add more cautionary instructions. Unless the rule is so qualified, it does violence to the law of torts by transforming liability for negligence on the part of manufacturers to one of absolute liability to a consumer.
It is well settled that the construction of the wording in a written document, like a will or a contract, is a matter reserved for judicial determination, and I see no reason why the wording of a warning label should be deemed an exception to this principle. Hence we should affirm the challenged ruling unless we are of the view that the warning on the container identifying the product as "EXTREMELY FLAMMABLE", and directing that it not be used "NEAR FIRE OR FLAME" would lull a customer into thinking it was safe to empty the contents of the container on the floor adjacent to his gas stove without extinguishing the pilot lights. One would think that even the least sophisticated user *1089 of household appliances would be aware that pilot lights are designed to ignite gas and thus far more likely than a smoldering cigarette to set ablaze any vapors rising from an "extremely flammable" mixture.
According to plaintiff's version of the facts, he read the instructions on the label of the can and before applying its contents to the floor, saw to it that the kitchen was ventilated by opening the windows and turning on ductal fans and air-conditioning equipment. He did so because another warning on the label read "USE WITH ADEQUATE VENTILATION". Obviously this warning was sufficient to put him on notice of the need for additional air. But why the warning against "USE NEAR FIRE OR FLAME" should not be treated as equally effective in putting customers on notice of the hazard of using the substance near pilot lights is difficult to explain. It would seem to me that a failure to heed either warning was contributory negligence per se.
Apparently my colleagues think that lack of the required degree of care might be inferred from the absence from the label of any specific mention of pilot lights "in light of the extreme flammability" of the product. But as the big lettering on the container described its contents in precisely those terms, I regard this position as untenable. If there was a duty to advert expressly to pilot lights in addition to "fire and flame", it would seem equally incumbent upon the vendors to devise a label warning against lighted pipes, cigars and cigarettes, vigil lights, candles, sparks from an electric lamp switch, a running fan or motor, and the other myriad of things which could possibly ignite vapors. If this is what the law requires, big lettering would have to be discarded for smaller print enumerating details at such length that few users would bother to read itthe warning then lacking the requisite "intensity". See DiArienzo v. Clairol, Inc., 125 N.J.Super. 224, 310 A.2d 106 (1973), where it was held that a pamphlet of instructions was so detailed that a particular hazard was insufficiently highlighted, and Palace Laundry Dry Cleaning Co. v. Cole, D.C. Mun.App., 41 A.2d 231 (1945), holding that plaintiff was under no duty to read fine print (disclaimers of liability on a laundry slip).
 The party opposing a summary judgment is entitled to the benefit of all favorable inferences that may be drawn from the evidentiary materials. Adickes v. S. II. Kress & Co., 398 U.S. 144, 158, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Bouchard v. Washington, 168 U.S.App.D.C. 402, 514 F.2d 824, 827 (1975). See also Security Nat'l Bank v. Lish, D.C.App., 311 A.2d 833, 834 n. 2 (1973); Malcolm Price, Inc. v. Sloane, D.C. App., 308 A.2d 779, 780 (1973).
 The VICO-102 label contained a hallmark symbol with the words "Conforms to Commercial Standard CS 181-52." The industry standard, which established certain requirements for adhesives, was replaced in 1971 with a new hallmark and commercial standard containing different technical requirements. The trial court found that Mrs. Burch placed no reliance on the hallmark in purchasing VICO-102, and appellants do not contest this ruling on appeal.
 15 U.S.C. §§ 1261(f), 1261(l) (1970).
(b) The following warning statement is considered to be the minimum cautionary labeling adequate . . . with respect to containers of more than one-half pint of contact adhesive and similar liquid or semi-liquid articles having a flash point at or below 20° F. . . .
 Amsterdam stated in its summary judgment papers, "It is probably impossible to find or even to compose a label which more closely follows the Act. Wherein has Amsterdam been negligent?"
 Appellants claimed that there was a genuine issue of material fact as to whether Amsterdam "falsely" labeled its product.
 Bloomgarden v. Coyer, 156 U.S.App.D.C. 109, 114, 479 F.2d 201, 206 (1973). See also Security Nat'l Bank v. Lish, supra note Brennan v. Shepherd Park Pharmacy, Inc., D.C.Mun.App., 138 A.2d 494 (1958); Morgan v. Garris, 113 U.S.App.D.C. 222, 307 F.2d 179 (1962); Wyant v. Crittenden, 72 App.D.C. 163, 113 F.2d 170 (1940).
 Super.Ct.Civ.R. 56(c); Malcolm Price, Inc. v. Sloane supra note 1, at 780; Yates v. District Credit Clothing, Inc., D.C.App., 241 A.2d 596, 598 (1968).
 Adickes v. S. H. Kress & Co., supra note 1, 398 U.S. at 157, 90 S. Ct. 1598; Yates v. District Credit Clothing, Inc., supra note 9; Bouchard v. Washington, supra note 1, at 827; Nyhus v. Travel Management Corp., 151 U.S.App.D.C. 269, 271, 466 F.2d 440, 442 (1972).
 Bloomgarden v. Coyer, supra note 8, at 115, 479 F.2d at 207; Nyhus v. Travel Management Corp., supra note 10. See also Wyant v. Crittenden, supra note 8.
 Adickes v. S. H. Kress & Co., supra note 1, 398 U.S. at 160, 90 S. Ct. 1598; Bloomgarden v. Coyer, supra note 8, at 115, 479 F.2d at 207; Levin v. Joint Comm'n on Accreditation of Hosps., 122 U.S.App.D.C. 383, 386, 354 F.2d 515, 518 (1965).
See generally Kidwell, The Duty to Warn: A Description of the Model of Decision, 53 Tex.L.Rev. 1375 (1975); Noel, Products Defective Because of Inadequate Directions or Warnings, 23 Sw.L.J. 256 (1969).
 In view of our disposition of this case, we need not consider appellants' claims with respect to applicability of the regulation for contact adhesives. We note that the Act itself requires a statement of "precautionary measures describing the action to be followed or avoided," which may have included more specific directions as to pilot lights. 15 U.S.C.A. § 1261(p) (1)(F) (1970). However, since appellants have not raised this point, we assume that the statutory requirements were satisfied.
Where there are no such special circumstances, the minimum standard prescribed by the legislation or regulation may be accepted by the triers of fact, or by the court as a matter of law, as sufficient for the occasion; but if for any reason a reasonable man would take additional precautions, the provision does not preclude a finding that the actor should do so.
 See cases cited at note 19, infra; Raymond v. Riegel Textile Corp., 484 F.2d 1025 (1st Cir. 1973); LaGorga v. Kroger Co., 275 F. Supp. 373 (W.D.Pa.1967), aff'd, 407 F.2d 671 (3d Cir. 1969); Sherman v. M. Lowenstein & Sons, Inc., 28 A.D.2d 922, 282 N.Y.S.2d 142 (1967). See generally Noel, Products Defective Because of Inadequate Directions, supra note 13, at 285-88; L. Frumer & M. Friedman, Products Liability § 8.07 (1975).
 In Jonescue, a cleaning agent which could cause illness if ingested was classified "nontoxic" and required no warning under the Act. The court reversed a directed verdict for defendant seller, holding that whether the seller had a duty to warn of the possible dangers inherent in the product was a question for the jury.
 Hubbard-Hall Chem. Co. v. Silverman, 340 F.2d 402 (1st Cir. 1965) (label approved by Department of Agriculture pursuant to Federal Insecticide, Fungicide and Rodenticide Act; jury could conclude warning inadequate); Gonzalez v. Virginia-Carolina Chem. Co., 239 F. Supp. 567 (E.D.S.C.1965) (compliance with labeling requirements of the Federal Insecticide, Fungicide and Rodenticide Act and the South Carolina Economic Poison Law did not preclude tort liability); Stevens v. Parke, Davis & Co., 9 Cal. 3d 51, 107 Cal. Rptr. 45, 507 P.2d 653 (1973) (en banc) (compliance with warnings required by Food and Drug Administration regulations not sufficient to immunize manufacturer from liability); Arata v. Tonegato, 152 Cal. App. 2d 837, 314 P.2d 130 (1957) (compliance with labeling requirements of Federal Food, Drug and Cosmetic Act did not preclude finding of negligence); Hill v. Husky Briquetting, Inc., 54 Mich.App. 17, 220 N.W.2d 137, aff'd, 393 Mich. 136, 223 N.W.2d 290 (1974) (New York labeling statute established only the minimum standard); Blasing v. P.R.L. Hardenbergh Co., 226 N.W.2d 110 (Minn.1975) (compliance with federal and local labeling regulations for flammable products did not preclude finding of negligence); First Nat'l Bank v. Nor-Am Agricultural Prods., Inc., 88 N.M. 74, 537 P.2d 682 (Ct.App.1975) (compliance with labeling requirements of Federal Insecticide, Fungicide and Fodenticide Act; summary judgment for defendant reversed); Maize v. Atlantic Ref. Co., 352 Pa. 51, 41 A.2d 850 (1945) (label approved by Surgeon General not as a matter of law adequate); Rumsey v. Freeway Manor Minimax, 423 S.W.2d 387 (Tex.Civ.App.1968) (warnings which satisfied requirements of Federal Insecticide, Fungicide and Rodenticide Act and Texas Hazardous Substances Act not necessarily sufficient).
One of the two cases involving statutory labeling requirements relied upon by appellees was a decision by the trial court finding that the warnings provided were adequate as a matter of fact. See Hunter v. E. I. DuPont de Nemours & Co., 170 F. Supp. 352 (W.D.Mo.1958) (compliance with Federal Insecticide, Fungicide and Rodenticide Act). The other case was reversed on appeal on the ground that compliance with the requirement was not determinative of the issue of liability. Bloom v. Gimbel Bros., Inc., 147 N.Y.S.2d 843 (Sup.Ct.1955), rev'd, 10 A.D.2d 695, 198 N.Y.S.2d 52 (1960) (compliance with New York City Administrative Code).
 While statutory requirements do not establish the standard of care, compliance with a statute is some evidence that due care was exercised. Arata v. Tonegato, supra note 19; Sherman v. M. Lowenstein & Sons, Inc., supra note 17; Rumsey v. Freeway Manor Minimax, supra note 19.
 Buffington v. Amchem Prods., Inc., 489 F.2d 1053, 1055 (8th Cir. 1974); Boyl v. California Chem. Co., 221 F. Supp. 669, 674-75 (D.Or.1963); First Nat'l Bank v. Nor-Am. Agricultural Prods., Inc., supra note 19, 88 N.M. at 83, 537 P.2d at 691-92; 2 F. Harper & F. James, The Law of Torts § 28.7 at 1547-48 (1956). See also Noel, Products Defective Because of Inadequate Directions, supra note 13, at 283-84.
 Spruill v. Boyle-Midway, Inc., 308 F.2d 79, 86 (4th Cir. 1962); Simonetti v. Rinshed-Mason Co., 41 Mich.App. 446, 200 N.W.2d 354 (1972); First Nat'l Bank v. Nor-Am. Agricultural Prods., Inc., supra note 19, 537 P.2d at 691; Noel, Products Defective Because of Inadequate Directions, supra note 13, at 283.
 Appellees, relying on evidence of four other mastic adhesive labels, argue that the warnings on the VICO-102 label conformed with the custom of the industry. Assuming appellees established conformance with the industry practice, such evidence is relevant but not conclusive in assessing whether reasonable care was exercised. "Even an entire industry . . . cannot be permitted to set its own uncontrolled standard." Prosser, supra § 33 at 167; accord, LaGorga v. Kroger Co., supra note 17, at 379; Hill v. Husky Briquetting, Inc., supra note 19; Maize v. Atlantic Ref. Co., supra note 19.
We note that appellee Syracuse also manufactures another mastic adhesive, SAC-2, which is made according to the same formula as VICO-102, but is sold under Syracuse's own label. The SAC-2 label provides a specific warning to extinguish pilot lights.
 The degree of danger involved is a factor in determining the specificity required in a warning. See Griggs v. Firestone Tire & Rubber Co., 513 F.2d 851, 858 (8th Cir. 1975); Boyl v. California Chem. Co., supra note 21, at 675 n. 5(b); Maize v. Atlantic Ref. Co., supra note 19, 352 Pa. at 56-58, 41 A.2d at 853. See also Kidwell, The Duty to Warn, supra note 13, at 1392-93, 1395.
 See Jackson v. Coast Paint and Lacquer Co., 499 F.2d 809 (9th Cir. 1974) (ignition of paint fumes from static electricity or broken light bulb; sufficiency of warning "Keep away from heat, sparks, and open flames. USE WITH ADEQUATE VENTILATION" was a question of fact); Tucson Indus. v. Schwartz, 108 Ariz. 464, 501 P.2d 936 (1972) (en banc) (warning inadequate to indicate that fumes from contact cement could cause blindness; label stated "DANGER . . . Use with adequate ventilation. Keep container closed VAPORS HARMFUL. TOXIC. . . ."); Crane v. Sears Roebuck & Co., 218 Cal. App. 2d 855, 32 Cal. Rptr. 754 (1963) (adequacy of warning a question for the jury where fumes from surface preparer exploded on contact with pilot light; label stated "CAUTION: INFLAMMABLE MIXTURE. Do not use near fire or flame . . . BEWARE OF POISONOUS FUMES.") Simonetti v. Rinshed-Mason Co., supra note 22 (sufficiency of warning a question of fact where residue and vapor from paint thinner could explode hours after use; label stated "Keep AWAY from FIRE, HEAT and OPEN-flame LIGHTS. CAUTION. . . ."); Blasing v. P.R.L. Hardenbergh Co., supra note 19 (vapors from furniture finish remover ignited on contact with pilot light; adequacy of warning to "Keep AWAY from FIRE, HEAT and OPEN-flame LIGHTS" could not be determined as a matter of law).
See also the following cases in which the adequacy of the particular warning was held to be a question of fact: Hubbard-Hall Chem. Co. v. Silverman, supra note 19 (failure to place skull and cross bones or comparable symbol on insecticide); Edwards v. Mazor Masterpieces, Inc., 111 U.S.D.C. App. 202, 295 F.2d 547 (1961) (instructions on opening and closing sofa bed); Bean v. Ross Mfg. Co., 344 S.W.2d 18 (Mo.1961) (no express warning that drain solvent exploded when mixed with water); Haberly v. Reardon Co., 319 S.W.2d 859 (Mo.1958) (no warning that cement paint could cause blindness); Rumsey v. Freeway Manor Minimax, supra note 19 (failure to warn that there was no antidote for a roach poison); cf. Boyl v. California Chem. Co., supra note 21 (label on weed killer held inadequate where no warning of harmful effects or residue). But see Stief v. J. A. Sexauer Mfg. Co., 380 F.2d 453 (2d Cir.), cert. denied, 389 U.S. 897, 88 S. Ct. 220, 19 L. Ed. 2d 216 (1967) (warning on drain cleaner adequate where specific cause of explosive reaction unknown); Jamieson v. Woodward & Lothrop, 101 U.S.App. D.C. 32, 247 F.2d 23 cert. denied, 355 U.S. 855, 78 S. Ct. 84, 2 L. Ed. 2d 63 (1957) (no warning required where elastic exerciser slipped and struck plaintiff since the danger complained of was obvious).
Appellees rely on two cases in which judgment notwithstanding the verdict was approved in favor of defendant seller/manufacturer where plaintiffs had contested the sufficiency of warnings accompanying an adhesive. Borowicz v. Chicago Mastic Co., 367 F.2d 751 (7th Cir. 1966); Moschkau v. Sears, Roebuck & Co., 282 F.2d 878 (7th Cir. 1960). Although the facts of those cases are similar to the situation here, plaintiffs in both cases were carpenters with extensive experience in using adhesives. Thus, the decisions were based on plaintiff's contributory negligence as a matter of law (Moschkau) and on the principle that there is no duty to warn against a danger which is already known to the plaintiff (Borowicz). The cases were distinguished in Murray v. Wilson Oak Flooring Co., Inc., 475 F.2d 129 (7th Cir. 1973), where the court, considering a contributory negligence claim, held that the issue of whether an adhesive label was sufficient to inform an inexperienced user of the attendant risk from pilot lights was a question of fact for the jury.


Pursuant to the requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16(b)-(h) ("Tunney Act"), the United States hereby responds to the public comments received regarding the proposed Final Judgment in this case. After careful consideration of these comments, the United States continues to believe that the proposed Final Judgment will provide an effective and appropriate remedy for the antitrust violation alleged in the Complaint. The United States will move the Court for entry of the proposed Final Judgment after the public comments and this Response have been published in the Federal Register, pursuant to 15 U.S.C. § 16(d).
On March 26, 2003, the United States filed the Complaint in this matter alleging that the proposed acquisition of Hispanic Broadcasting Corporation ("HBC") by Univision Communications Inc. ("Univision") would violate Section 7 of the Clayton Act, as amended, 15 U.S.C. § 18.
As explained more fully in the Complaint and CIS, this transaction raised competitive concerns relating to the sale of advertising time on Spanish-language radio stations in several geographic markets. HBC is the nation's largest Spanish-language radio broadcaster. Univision, the largest Spanish-language media company in the United States, owns a significant equity interest, and possesses governance rights, in Entravision Communications Corporation ("Entravision"), another Spanish-language media company that is HBC's principal competitor in Spanish-language radio in many markets. The Complaint alleges that, due to Univision's substantial equity interest and governance rights in Entravision, Univision's proposed acquisition of HBC would substantially lessen competition in the provision of Spanish-language radio advertising time to a significant number of advertisers in several geographic markets in the United States.
Entry of the proposed Final Judgment would terminate this action, except that the Court would retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final Judgment and to punish violations thereof.
Upon the publication of the public comments and this Response, the United States will have fully complied with the Tunney Act and will move the Court for entry of the proposed Final Judgment as being "in the public interest." 15 U.S.C. § 16(e). The Court, in making its public interest determination, should apply a deferential standard and should withhold its approval only under limited conditions. Specifically, the Court should review the proposed Final Judgment in light of the violations charged in the complaint and "withhold approval only if any of the terms appear ambiguous, if the enforcement mechanism is inadequate, if third parties will be positively injured, or if the decree otherwise makes 'a mockery of judicial power.'" Mass. School of Law v. United States, 118 F.3d 776, 783 (D.C. Cir. 1997) (quoting United States v. Microsoft Corp., 56 F.3d 1448, 1462 (D.C. Cir. 1995)).
It is not proper during a Tunney Act review "to reach beyond the complaint to evaluate claims that the government did not make and to inquire as to why they were not made." Microsoft, 56 F.3d at 1459; see also United States v. Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6-7 (D.D.C. 2003) (rejecting argument that court should consider effects in markets other than those raised in the complaint); United States v. Pearson PLC, 55 F. Supp. 2d 43, 45 (D.D.C. 1999) (noting that a court should not "base its public interest determination on antitrust concerns in markets other than those alleged in the government's complaint"). Because "[t]he court's authority to review the decree depends entirely on the government's exercising its prosecutorial discretion by bringing a case in the first place,"(2) it follows that "the court is only authorized to review the decree itself," and not to "effectively redraft the complaint" to inquire into other matters the United States might have but did not pursue. Microsoft, 56 F.3d at 1459-60; see also United States v. Western Elec. Co., 993 F.2d 1572, 1577 (D.C. Cir. 1993) (noting that a Tunney Act proceeding does not permit "de novo determination of facts and issues" because "[t]he balancing of competing social and political interests affected by a proposed antitrust decree must be left, in the first instance, to the discretion of the Attorney General" (citations omitted)).
The United States received comments from two entities, the American Antitrust Institute ("AAI," comment attached as Exhibit 1) and Spanish Broadcasting System, Inc. ("SBS," comment attached as Exhibit 2).
AAI takes the position that the United States' CIS fails to address and evaluate "the consequences of this merger in conventional terms in an overall market consisting of Spanish-language media, examining such traditional criteria as advertising effects [and] the consumer interest in diversity of sources of political and cultural information." AAI cmt. at 1. AAI also states that the United States' CIS fails to explain why the proposed Final Judgment does not require the elimination of all rights Univision currently possesses in Entravision and the divestiture of all stock Univision holds in Entravision. AAI cmt. at 1 n.2. These points are similar to SBS's comments on these issues and are addressed below. Additionally, AAI argues that the Division should have considered indicia of harm to non-price competition, such as quality and innovation.
SBS, a Spanish-language radio company that competes in many markets with HBC and Entravision, states that the United States should have alleged harm in its Complaint based on purported effects of the transaction on a "Spanish-language broadcasting market." SBS cmt. at 1-2. SBS further claims that the transaction will increase Univision's incentives (1) to refuse to deal with or discriminate against Spanish-language radio competitors who seek to advertise through Univision and (2) to force advertisers who wish to advertise through both radio and television to purchase time from both Univision and HBC. Id. at 3. In addition, SBS argues that the United States' remedy fails to solve the competitive concerns in the Spanish-language radio markets raised in the Complaint because, according to SBS, Univision will be able to exercise undue influence over Entravision. Id. at 1, 4-6.
Because both comments raise the general issue of whether the effects of the merger should be analyzed in light of an "overall" Spanish-language media market, the United States will first respond to that issue. It will then respond to the specific points AAI and SBS raised concerning whether the remedy addresses the competitive harm raised in the Complaint.
Allegations Not Raised in the Complaint Are Irrelevant to Whether the Proposed Final Judgment Is in the Public Interest.
SBS's Proposed Market and Alleged Harm Are Extraneous to the Competitive Issues Raised in the Complaint.
The Complaint alleges that the relevant market consists of the provision of advertising time on Spanish-language radio stations to the significant number of advertisers that consider Spanish-language radio advertising to be a particularly effective advertising medium. See Complaint ¶¶ 12-15. SBS, however, takes the position that the Complaint should have raised additional allegations of harm based on purported effects in a combined Spanish-language radio and television market. SBS cmt. at 1-2.
The Complaint's market definition does not extend to the issues raised by SBS, nor should it. The market definition analysis in the Complaint properly begins by examining how advertisers individually negotiate transactions with radio broadcasters such as Entravision and HBC. The resulting price for advertising time reflects the circumstances of these individual negotiations and the preferences of each advertiser. The Complaint's market definition reflects these individualized negotiations by looking at the options available to individual advertisers. The Complaint alleges that a significant number of advertisers exist who do not have reasonable alternatives to advertising on Spanish-language radio; in other words, these advertisers cannot effectively switch to other media in the face of a small but significant increase in the price of advertising time on Spanish-language radio. This set of advertisers forms the relevant market alleged in the Complaint.
SBS does not appear to take issue with the theoretical framework underlying the Complaint's market definition. Rather, it alleges that there is another market to consider; namely, a purported market consisting of a set of advertisers that are dependent on Spanish-language television and radio. The Complaint, however, makes no such factual allegation. The proposed market differs significantly from the one alleged in the Complaint and would require markedly different supporting facts to be justified. Moreover, market definition is but one step toward the ultimate goal of determining competitive effects. The Complaint alleges that the transaction would likely cause anticompetitive effects with regard to Spanish-language radio (Complaint ¶¶ 24-27); it makes no such allegations regarding a combined television and radio market. So, SBS asks not only that the Court redraft the Complaint to include an additional market but also that the Court impose a competitive effects analysis based on that new market to find cognizable harm.
As discussed above, the United States is entitled to deference as to the case it brings, and, as Microsoft makes clear, it is not proper during a Tunney Act review "to reach beyond the complaint to evaluate claims that the government did not make and to inquire as to why they were not made." Microsoft, 56 F.3d at 1459. The Tunney Act does not authorize the Court to consider allegations not raised in the Complaint based on concerns raised by a member of the public. Accordingly, SBS's suggestion that the Complaint is defective for failing to allege harm in a combined Spanish-language television and radio market should be rejected as a matter of law.
The CIS Properly Addresses the Market Effects Relevant to the Allegations in the Complaint.
AAI takes the position that the United States has not satisfied its requirements under the Tunney Act because the CIS fails to identify the competitive effects of the transaction in an "overall" Spanish-language media market and fails to justify the United States' decision not to challenge the transaction based on those purported effects. This position is not valid. Not only is the Court's review limited to the case actually brought by the United States, there is no requirement that the United States disclose its decision-making as to cases it chooses not to initiate. Rather, the Tunney Act provides that the United States must inform the public about the case it did initiate and explain how the proposed decree serves to resolve the competitive effects alleged in the Complaint.
15 U.S.C. § 16(b). The United States' CIS has satisfied all of these requirements. More specifically, the CIS explains the nature and purpose of the proceeding (at 1-3), describes the events that gave rise to the alleged violation of the antitrust law (at 3-9), explains the proposed Final Judgment (at 9-15), explains the remedies available to potential private litigants (at 15), explains the procedures available for modifying the proposed Final Judgment (at 15-16), and describes and evaluates alternatives to the proposed Final Judgment (at 16-17). There is simply no requirement that the Government identify purported effects it did not allege in the Complaint or explain why it did not make certain allegations in the Complaint. Accordingly, AAI's challenge to the sufficiency of the CIS fails.
The Government's Investigation Did Not Demonstrate the Likelihood of Substantial Harm in an "Overall" Spanish-Language Media Market.
Although the United States has no legal obligation to address matters not raised in the Complaint, we note that the United States conducted an extensive inquiry into the issue of whether the combination of Univision's Spanish-language television stations with HBC's Spanish-language radio stations in geographic regions where both are located was likely to cause significant anticompetitive effects. The inquiry included numerous interviews of a wide range of advertisers and review of over a million pages of documents provided by the defendants and other entities. In the end, the evidence did not support the claims proffered by the comments.
The evidence did not justify a combined media market for advertisers.
The United States considered non price competition.
AAI also argues that the United States should examine indicia of harm other than price, such as quality and innovation. AAI cmt. at 4-5. The United States, in fact, considered such indicia during this investigation. In this case, the market is comprised of the competitive alternatives for certain advertisers seeking to purchase commercial time on Spanish-language radio stations. Market participants compete on the basis of both price and service (or "quality" or "innovation"). See, e.g., Complaint ¶ 14 (relevant product market defined in terms of options available to certain advertisers facing "a small but significant increase in the price of advertising time on Spanish-language radio, or a reduction in the value of services provided") (emphasis added). As the Complaint and CIS state, Entravision and HBC heavily promote their stations against each other in an effort to gain high ratings; they program and format their stations in an effort to attract listeners away from each other; they aggressively seek to acquire stations; and they closely monitor each other's competitive positions. Complaint ¶ 19; CIS at 6. As explained in the CIS, the goal of the proposed Final Judgment is to protect such vigorous price and nonprice competition between Entravision and HBC by foreclosing the ability of a combined Univision/HBC to improperly influence Entravision's strategic decision making with regard to its radio business. See CIS at 9-11. Contrary to AAI's assumption, the United States considered the many ways in which advertisers benefit from competition  not just price competition  in crafting its remedy.
The consideration of political and cultural viewpoints are extraneous to antitrust enforcement.
AAI also asserts that the United States should take into account under its antitrust analysis "consumer interest in diversity of sources of political and cultural information" within a combined Spanish-language television and radio market. AAI cmt. at 1, 3-4. It is not the role of the United States to use the antitrust laws to regulate actual content or to establish quotas for the types of programming that media stations must broadcast. Accordingly, we do not seek to ensure in the context of a merger review that media companies provide a balance of political views or a proper mix of cultural issues as part of their programming. The United States does seek to ensure that content is determined in a competitive marketplace, however. The relevant product identified in the Complaint is the provision of advertising time on Spanish-language radio stations; the customer is an advertiser purchasing that time. In order to supply this product, media stations compete to gain audience ratings, as it is audience access that is being sold to the advertisers. That competition benefits advertisers as discussed above. It also benefits individual audience members (listeners of radio stations) because stations will compete for their attention by offering high quality content. In this way, the relief in the Final Judgment that protects advertising competition also serves to protect individual audience members by maintaining vigorous competition between the Spanish-language radio stations owned by Univision/HBC and those owned by Entravision.
The allegation that Univision may refuse to deal with certain advertisers or impose tying arrangements does not warrant condemning the transaction.
SBS alleges that the merger will provide Univision an enhanced incentive to refuse to deal with or discriminate against Spanish-language radio competitors who seek to advertise on Univision and will also provide Univision the ability to "tie" radio and television advertising time for advertisers who seek to use both mediums. (SBS Cmt. at 3). The United States did not find evidence upon which to base a cause of action pursuant to SBS's theory. If Univision engages in the alleged conduct in the future, and if the conduct satisfies the requirements of an antitrust violation, then the United States (or a private plaintiff with standing) could challenge the conduct at that time. The mere speculation that Univision will violate the antitrust laws, however, does not justify enjoining this transaction.
SBS's Assertions that the Proposed Final Judgment Will Not Remedy the Competitive Concerns Raised in the Complaint Are Unfounded.
Contrary to SBS's assertions, the proposed Final Judgment will preserve competition between Entravision and HBC by restricting Univision's ability to control or influence Entravision's radio business and by significantly reducing Univision's equity stake in Entravision. See CIS at 9-13 (describing specific means by which the proposed Final Judgment will preserve competition).
Addressing SBS's first contention, as stated in the CIS, Univision and Entravision have a long-standing television relationship in which Entravision broadcasts Univision programming on television stations owned by Entravision. This relationship is embodied in a pre-existing, long-term affiliation agreement that assigns rights and responsibilities to both parties and also provides for Univision to act as Entravision's national sales representative for television advertising. In addition to the fact that this vertical integration may yield certain efficiencies and consumer benefits, there is nothing in this affiliation agreement that allows Univision to control any Entravision radio decision, including decisions regarding the acquisition of radio stations. Moreover, the decree itself mandates that the two companies act as independent entities and there is no reason to believe that Univision will violate the terms of the decree (and thereby subject itself to contempt of court proceedings) by using its television relationship to influence any Entravision strategic decision. The Division found no evidence to suggest that the mere fact that a television affiliation agreement exists between them enables Univision to unduly influence Entravision's decisions with respect to its radio business, the only area in which the combined Univision/HBC will compete with Entravision. Finally, Entravision has every incentive to operate its radio stations in a fully competitive manner.
As to SBS's second contention, although Univision will maintain a few limited governance rights in Entravision that it held prior to the contemplation of this merger, the proposed Final Judgment eliminates Univision's ability to exercise these rights over Entravision radio decisions. The rights that are retained relate to the two entities' television relationship, which is not a basis of concern alleged in the Complaint. Univision will retain a modified right to veto a merger or transfer of ownership of Entravision. Although this right does impact ultimate ownership of Entravision, it cannot be used to veto or influence day-to-day decisions relating to radio competition or strategic decisions such as the buying or selling of individual radio stations.
With respect to SBS's third contention, while the United States traditionally requires defendants to divest business assets as expeditiously as possible to maintain their value and ongoing capabilities, the relief sought here is for divestiture of stock, the retention of which does not raise the same spoliation concerns as the retention of business assets raises. Moreover, based on our investigation, we concluded that a forced divestiture of equity within a short amount of time could cause material hardship to Entravision's vitality as a significant competitor (for example, a "fire-sale" of Univision's stock holdings in Entravision could depress Entravision's stock price to the point that it would not be able to issue equity to fund potential acquisitions). Such hardship should be avoided or minimized if at all possible so as to maintain Entravision as a strong competitor to the unified Univision/HBC. The time period reflects a balancing designed to minimize the potential harms to competition that might arise from a divestiture that proceeds either too slowly or too rapidly.
After careful consideration of these public comments, the United States has concluded that entry of the Proposed Final Judgment will provide an effective and appropriate remedy for the antitrust violation alleged in the Complaint and is, therefore, in the public interest. Pursuant to Section 16(d) of the Tunney Act, the United States is submitting these public comments and this Response to the Federal Register for publication. After these comments and this Response are published in the Federal Register, the United States will move this Court to enter the Proposed Final Judgment.
Dated this 31st day of October 2003.
1. On September 22, 2003, the Federal Communications Commission announced that it granted Univision's and HBC's applications for transfer of control that were required in order for the transaction to proceed. See Memorandum Opinion and Order, FCC 03-218 (located at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-218A1.pdf.). Univision and HBC closed their merger the same day.
2. It is the United States' responsibility to investigate a transaction and decide what allegations to raise in any challenge it may bring. See Heckler v. Chaney, 470 U.S. 821, 831-32 (1985) ("[A]n agency's decision not to prosecute or enforce, whether through civil or criminal process, is generally committed to an agency's absolute discretion.").
3. See, e.g. Complaint ¶¶ 11-14, United States v. Clear Channel Communications, No. 1:00CV02063 (D.D.C. filed Aug. 29, 2000); Complaint ¶¶ 34-41, United States v. Chancellor Media Company, Inc., No. CV-97-496 (E.D. N.Y. filed Nov. 6, 1997); Complaint ¶ 12, United States v. EZ Communications, Inc., No. 1:97CV00406 (D.D.C. filed Feb. 27, 1997).
4. SBS's submission does not provide a basis to establish a combined Spanish-language television and radio market. The letters that SBS attaches to its comment as Exhibit A for the most part discuss how certain advertisers depend on Spanish-language media (a point with which the United States does not disagree). Only two of the letters, however, discuss the interchangeability of Spanish-language television and radio (May 27, 2003 letter from Castor A. Fernandez; May 27, 2003 letter from Caballero TV & Cable sales); the rest are silent on the issue.
5. As noted above, AAI asserts that the CIS fails to explain why Univision was not forced to relinquish all its shareholder "veto" rights in Entravision and to divest all its Entravision equity. AAI cmt. at 1 n.2. These points are addressed in this response to SBS's comments.
6. Cf. Archer-Daniels-Midland, 272 F. Supp. 2d at 8 (crediting the Government's statement in Tunney Act proceeding that factual investigation showed that two companies operated as independent competitors notwithstanding one company's partial equity ownership in the other).


HISTORY: Source: L. 71: R&RE, p. 418, § 1. C.R.S. 1963: § 40-3-103.L. 75: (1)(a) amended, p. 622, § 1, effective March 19.L. 77: (1)(a) amended and (1)(b) repealed, pp. 960, 971, § § 6, 67, effective July 1.L. 86: (4) added, p. 776, § 1, effective July 1.L. 95: IP(1) amended and (2.5) added, p. 1222, § 5, effective July 1.L. 96: Entire section amended, p. 1844, § 12, effective July 1.L. 2002: (4) amended, p. 1512, § 184, effective October 1.
Cross references: For the legislative declaration contained in the 2002 act amending subsection (4), see section 1 of chapter 318, Session Laws of Colorado 2002.
Law reviews. For article, “Homicides Under the Colorado Criminal Code”, see 49 Den. L. J. 137 (1972). For article, “Mens Rea and the Colorado Criminal Code”, see 52 U. Colo. L. Rev. 167 (1981). For note, “Extreme-Indifference Murder: The Impact of People v. Marcy”, see 54 U. Colo. L. Rev. 83 (1982).
Annotator’s note. Since § 18-3-103 is similar to former § 40-2-3, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
This section is not unconstitutionally overbroad. People v. Gladney, 194 Colo. 68, 570 P.2d 231 (1977), cert. denied, 434 U.S. 1038, 98 S. Ct. 776, 54 L. Ed. 2d 787 (1978).
Subsection (2) is not violative of the due process clause of the Colorado Constitution. People v. Campisi, 649 P.2d 1053 (Colo. 1982).
This section does not violate due process rights by rendering irrelevant evidence concerning an impaired mental condition due to voluntary intoxication. People v. Loscutoff, 661 P.2d 274 (Colo. 1983).
Distinction between second degree murder and manslaughter constitutional. The difference between the mental states required for second degree murder (knowingly) and manslaughter (recklessly) mirrors the distinction between practically certain of result on the one hand, and probability or contingency of result on the other, and this difference is sufficient to avoid an equal protection violation. People v. Padilla, 638 P.2d 15 (Colo. 1981).
Section constitutionally distinguishable from manslaughter statute, § 18-3-104 (1)(a), because the two statutes require different mens rea elements for conviction. People v. DelGuidice, 199 Colo. 41, 606 P.2d 840 (1979); People v. Padilla, 638 P.2d 15 (Colo. 1981). See People v. White, 199 Colo. 82, 606 P.2d 847 (1980).
Statutory prohibition of extreme indifference murder in § 18-3-102 (1)(d) (as it existed prior to the 1983 amendment) violated equal protection of the laws because it could not reasonably be distinguished from the lesser offense of second degree murder as defined in this section. People v. Marcy, 628 P.2d 69 (Colo. 1981); Crespin v. People, 721 P.2d 688 (Colo. 1986).
Distinction intended to be meaningful. The general assembly intended that there be a meaningful distinction between first and second degree murder. People v. Mullins, 188 Colo. 23, 532 P.2d 733 (1975).
The distinctions between § 18-3-102 and this section are not inconsequential and satisfy due process requirements and the informational requirements of § 16 of art. II, Colo. Const. People v. Mendoza, 195 Colo. 19, 575 P.2d 403 (1978).
Lesser included offense of first degree murder. The difference in substance between first degree murder and second degree murder is that first degree murder requires the additional element of premeditation. Since proof of first degree murder necessarily establishes every element of second degree murder, the latter is necessarily a lesser included offense of the former. People v. Gladney, 194 Colo. 68, 570 P.2d 231 (1977), cert. denied, 434 U.S. 1038, 98 S. Ct. 776, 54 L. Ed. 2d 787 (1978).
A conviction for attempted second degree murder cannot merge with a conviction for attempted first degree murder with extreme indifference when the offenses had different victims. People v. Torres, 224 P.3d 268 (Colo. App. 2009).
Felony menacing is not a lesser included offense of attempted second degree murder. People v. Torres, 224 P.3d 268 (Colo. App. 2009).
The offense of second degree murder does not establish every element of felony menacing. Attempted second degree murder requires a defendant to knowingly engage in conduct that is a substantial step toward causing the death of a person. There is no requirement that the victim be in fear of imminent serious bodily injury. Thus, an attempted second degree murder conviction does not necessarily establish all the elements of menacing. People v. Torres, 224 P.3d 268 (Colo. App. 2009).
Second degree murder as defined in this section is “conceptually distinguishable” from intentional manslaughter. People v. Gladney, 194 Colo. 68, 570 P.2d 231 (1977), cert. denied, 434 U.S. 1038, 98 S. Ct. 776, 54 L. Ed. 2d 787 (1978).
Applied in Salas v. District Court, 190 Colo. 447, 548 P.2d 605 (1976); Reliford v. People, 195 Colo. 549, 579 P.2d 1145 (1978); People v. Sepeda, 196 Colo. 13, 581 P.2d 723 (1978); People v. Fink, 41 Colo. App. 47, 579 P.2d 659 (1978); People v. Parsons, 199 Colo. 421, 610 P.2d 93 (1980); People v. Botham, 629 P.2d 589 (Colo. 1981); People v. Chavez, 629 P.2d 1040 (Colo. 1981); People v. Lee, 630 P.2d 583 (Colo. 1981); Coston v. People, 633 P.2d 470 (Colo. 1981); People v. Harris, 633 P.2d 1095 (Colo. App. 1981); People v. District Court, 652 P.2d 582 (Colo. 1982); People ex rel. Gallagher v. District Court, 656 P.2d 1287 (Colo. 1983); People v. Clark, 662 P.2d 1100 (Colo. App. 1982); People v. Bartowsheski, 661 P.2d 235 (Colo. 1983); People v. Fisher, 759 P.2d 33 (Colo. 1988).
Term “knowingly” describes the requisite culpability for second degree murder. People v. Marcy, 628 P.2d 69 (Colo. 1981).
No requirement that knowing conduct be directed against person actually killed. There is no requirement that the knowing conduct essential to second degree murder be directed against the person actually killed. On the contrary, the offense is a general intent crime, and as long as the offender knowingly acts in the proscribed manner and causes the death of another, he is guilty of the crime, even though the person killed is not the person against whom the criminal conduct was directed. People v. Marcy, 628 P.2d 69 (Colo. 1981).
Elements of murder in second degree concerning defendant’s state of mind are: (1) That the death was more than merely a probable result of the defendant’s actions; and (2) that the defendant was aware of the circumstances which made death practically certain. The first is an objective standard; the second, a subjective standard. People v. Mingo, 196 Colo. 315, 584 P.2d 632 (1978); People v. District Court, 198 Colo. 70, 595 P.2d 1045 (1979).
The express statutory definition of second degree murder does not include malice as an element. People v. Gladney, 194 Colo. 68, 570 P.2d 231 (1977), cert. denied, 434 U.S. 1038, 98 S. Ct. 776, 54 L. Ed. 2d 787 (1978).
For discussion of element of implied malice required by former statute, see Walker v. People, 175 Colo. 173, 489 P.2d 584 (1971); People v. Morant, 179 Colo. 287, 499 P.2d 1173 (1972); People v. Gallegos, 180 Colo. 238, 504 P.2d 343 (1972); People v. Tapia, 183 Colo. 141, 515 P.2d 453 (1973); People v. Garcia, 186 Colo. 167, 526 P.2d 292 (1974).
Application of specific intent as element. Specific intent as an element of second degree murder applies whenever the events giving rise to a second degree murder charge occurred after the 1973 amendments. People v. Stitt, 40 Colo. App. 355, 575 P.2d 446 (1978).
Second degree murder is general intent crime which entails being aware that one’s actions are practically certain to result in another’s death. People v. Mingo, 196 Colo. 315, 584 P.2d 632 (1978).
Second degree murder consists of an unlawful killing without premeditation and deliberation. Washington v. People, 158 Colo. 115, 405 P.2d 735 (1965), cert. denied, 383 U.S. 953, 86 S. Ct. 1217, 16 L. Ed. 2d 215 (1966).
Conviction requires proof that death natural consequence of unlawful act. A conviction for criminal homicide requires proof beyond a reasonable doubt that the death was a natural and probable consequence of the defendant’s unlawful act. People v. Fite, 627 P.2d 761 (Colo. 1981).
Unlawful infliction of wound which develops into fatal infection renders offender criminally responsible for the consequential death. People v. Fite, 627 P.2d 761 (Colo. 1981).
For “premeditated intent” and “intentionally, but without premeditation” as different elements, prior to the 1975 amendment of § 18-3-102, see People v. Pearson, 190 Colo. 313, 546 P.2d 1259 (1976).
There is no crime of second degree felony murder in the state of Colorado. Sawyer v. People, 173 Colo. 351, 478 P.2d 672 (1970).
Subsection (3) sets forth the elements of provocation, which is a mitigating factor and not a separate crime or a lesser included offense of murder in the second degree. If proven, provocation is a statutory mitigating factor that will reduce a defendant’s sentence for second degree murder, but it is not an element of a separate offense. Further, to secure a conviction of second degree murder, the prosecution must prove a lack of provocation beyond a reasonable doubt. People v. Garcia, 1 P.3d 214 (Colo. App. 1999), aff’d, 28 P.3d 340 (Colo. 2001).
The general assembly intended to eliminate the offense of heat of passion manslaughter and create a single crime of second degree murder with two different felony levels by making provocation, or acting in the heat of passion, a factor in mitigation of second degree murder. People v. Martinez, 32 P.3d 582 (Colo. App. 2001).
Second degree murder is a per se crime of violence, even if committed in the heat of passion. People v. Martinez, 32 P.3d 582 (Colo. App. 2001).
Subsection (2) does not create any presumption of culpability, conclusive or otherwise, and the prosecution retains the burden of establishing the defendant’s guilt as to all elements of the crime beyond a reasonable doubt. People v. Morgan, 637 P.2d 338 (Colo. 1981).
Prosecution’s burden of proving “knowingly”. Subsection (2) does not lessen the prosecution’s constitutional burden to prove the requisite culpability of “knowingly” for a second-degree murder. People v. Gallegos, 628 P.2d 999 (Colo. 1981).
Where the trial court admits evidence as to the defendant’s diminished mental capacity and such evidence is considered as to the charge of murder in the second degree, subsection (2) does not unconstitutionally restrict the defense in contesting the culpability element of the charge nor does it lessen the prosecution’s burden of proving guilt beyond a reasonable doubt. People v. Gallegos, 628 P.2d 999 (Colo. 1981).
Proof of killing alone is not murder. Proof of the mere abstract fact that the accused killed the deceased will not sustain a verdict of guilty of first or second degree murder based on instructions thereto. Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962).
Presumption of intent to kill may be presumed or implied as inference of fact from act itself with regard to second degree murder. People v. Morant, 179 Colo. 287, 499 P.2d 1173 (1972).
The use of a deadly weapon is sufficient to support finding of second degree murder. Hervey v. People, 178 Colo. 38, 495 P.2d 204 (1972).
Use of a deadly weapon is not in itself sufficient to show deliberation. People v. Hamrick, 624 P.2d 1333 (Colo. App. 1979), aff’d, 624 P.2d 1320 (Colo. 1981).
Evidence sustaining first degree verdict sustains verdict in second degree. When evidence viewed in its most favorable light was sufficient to sustain a verdict of first degree murder, that evidence must perforce sustain a finding of second degree murder. People v. Lankford, 185 Colo. 445, 524 P.2d 1382 (1974).
Jury’s province to determine degree evidence justifies. Assuming the sufficiency of the evidence to support first degree murder, it is strictly within the province of the jury to evaluate the evidence and say by its verdict whether the evidence justifies a verdict of first or second degree murder. People v. Lankford, 185 Colo. 445, 524 P.2d 1382 (1974).
First and second degree murder properly submitted to jury. Where there was sufficient evidence to support the contention of the prosecution that the offense of murder in the first degree had been committed, but a jury could find from the evidence that because defendant had been the victim of a robbery at the hands of decedent he was seeking revenge, it was within the province of the jury to determine whether the evidence established beyond a reasonable doubt that there was no justification or considerable provocation in the circumstances of the homicide; hence, an instruction and form of verdict on second degree murder was proper. Vigil v. People, 143 Colo. 328, 353 P.2d 82 (1960).
Court properly excluded defendant’s expert heat of passion testimony because the heat of passion mitigator does not apply when a person seeks out the highly provoking act in question, as defendant did here. Therefore, trial court properly excluded the testimony since it would not have been helpful to the jury. People v. Valdez, 183 P.3d 720 (Colo. App. 2008).
After properly refusing to allow defendant’s expert heat of passion testimony, trial court erred by instructing the jury on the heat of passion mitigator. People v. Valdez, 183 P.3d 720 (Colo. App. 2008).
The perpetrator may testify to his state of mind at the time of the homicide, but the jury is not bound by this statement and may consider the attendant circumstances in resolving the matter. Washington v. People, 158 Colo. 115, 405 P.2d 735 (1965), cert. denied, 383 U.S. 953, 86 S. Ct. 1217, 16 L. Ed. 2d 215 (1966).
Evidence sufficient to establish deliberation. Where a witness testified that the defendant left the room for a moment and returned carrying a wooden stick, that when the victim saw the stick he asked the defendant, “Where did you get that?” and to this question the defendant replied, “In the bedroom”, and began hitting the victim, this evidence was sufficient to establish that the defendant acted after deliberation. People v. Hamrick, 624 P.2d 1333 (Colo. App. 1979), aff’d, 624 P.2d 1320 (Colo. 1981).
Jury had sufficient evidence to determine that defendant was aware his conduct was practically certain to result in victim’s death. People v. Fry, 74 P.3d 360 (Colo. App. 2002), aff’d on other grounds, 92 P.3d 970 (Colo. 2004).
Sufficient evidence to support a jury finding that defendant knew his conduct was practically certain to cause death. Evidence of the size differential between the defendant and victim, the way the defendant struck the victim, and the defendant’s effort to conceal the crime afterwards was sufficient to support a jury finding that defendant knew his actions would cause death. Mata-Medina v. People, 71 P.3d 973 (Colo. 2003).
Evidence sufficient for conviction of second degree murder. People v. Naranjo, 181 Colo. 273, 509 P.2d 1235 (1973); People v. Garcia, 186 Colo. 167, 526 P.2d 292 (1974); Crespin v. People, 721 P.2d 688 (Colo. 1986); People v. Sepulveda, 65 P.3d 1002 (Colo. 2003).
Gross negligence constitutes defense. Gross negligence, not being reasonably foreseeable, constitutes a defense to criminal homicide under those circumstances where, but for the gross negligence, death would not have resulted. People v. Fite, 627 P.2d 761 (Colo. 1981).
Intoxication does not negative the necessary capacity to be guilty of second degree murder. Watkins v. People, 158 Colo. 485, 408 P.2d 425 (1965).
Even if lack of deliberation and premeditation because of intoxication is shown, second degree murder can be proved. Washington v. People, 158 Colo. 115, 405 P.2d 735 (1965), cert. denied, 383 U.S. 953, 86 S. Ct. 1217, 16 L. Ed. 2d 215 (1966).
An instruction limiting voluntary intoxication as an affirmative defense to second degree murder does not constitute a violation of due process by reducing the people’s burden of proving every element of the crime beyond a reasonable doubt. People v. DelGuidice, 199 Colo. 41, 606 P.2d 840 (1979). See People v. White, 199 Colo. 82, 606 P.2d 847 (1980); People v. Lee, 199 Colo. 301, 607 P.2d 998 (1980).
Subsection (2) prohibits admission of evidence of voluntary intoxication to contest the general intent required for second degree murder. People v. Gallegos, 628 P.2d 999 (Colo. 1981); People v. Vasquez, 148 P.3d 326 (Colo. App. 2006).
For voluntary intoxication as an affirmative defense prior to the 1977 amendment of this section, see People v. Cornelison, 192 Colo. 337, 559 P.2d 1102 (1977).
Killing in self-defense justified. A general fight ensued under circumstances which could lead only to the conclusion on the part of defendant that he was being set upon by at least three assailants. Defendant made his way out of the booth and was obviously trying to get out of the tavern. There was scuffling outside and defendant fired a second shot which fatally wounded deceased. Under the law and the circumstances, defendant had the right to defend himself against the threatened assault of those whose lawlessness and utter disregard of his right resulted in the justifiable killing of one of their number. The conviction of second degree murder is reversed and defendant discharged. Maes v. People, 166 Colo. 15, 441 P.2d 1 (1968).
Intentional death not result of mutual combat. A defendant cannot avoid the consequences of a deliberate, intentional act of murder on grounds of mutual combat or hot state of blood when the person killed was not a party to the mutual combat nor a bystander accidentally and unintentionally slain. Armijo v. People, 134 Colo. 344, 304 P.2d 633 (1956).
Attack by policeman was murder. A policeman who, without justification, strikes a citizen with his billy, in a manner calculated to produce death, but without deliberation or premeditation, is guilty of murder in the second degree if death ensues. Campbell v. People, 55 Colo. 302, 133 P. 1043 (1913).
The refusal of a marriage proposal and the request or demand to leave one’s home cannot under any circumstances rise to the level of provocation that would justify a reasonable person to use violence. Thus, there was not sufficient evidence to support the heat of passion mitigator. People v. Ramirez, 56 P.3d 89 (Colo. App. 2002).
Error to charge conviction of second degree murder required if killing was without deliberation. It is error to charge the jury that, if they believe the killing was without any deliberation or premeditation whatever, they should convict of murder of the second degree; and such charge must be considered erroneous, even when the conviction is murder of the first degree. Babcock v. People, 13 Colo. 515, 22 P. 817 (1889).
Error to instruct upon higher degree of homicide when evidence will not support such instructions. Leonard v. People, 149 Colo. 360, 369 P.2d 54 (1962).
Error in instruction on higher degree of crime not prejudicial to one convicted of lesser crime. Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952); Armijo v. People, 134 Colo. 344, 304 P.2d 633 (1956).
The accused cannot complain of an error in instructing the jury as to the higher degree of the crime charged where the jury is properly instructed as to the lower degree and returns a verdict of guilty of the lower degree, especially with respect to charges upon the different grades and degrees of culpable homicide. Walker v. People, 126 Colo. 135, 248 P.2d 287 (1952); Armijo v. People, 134 Colo. 344, 304 P.2d 633 (1956); Crespin v. People, 721 P.2d 688 (Colo. 1986).
Error to instruct that the prosecution was required to prove the elements of provocation beyond a reasonable doubt. Since provocation is a mitigating factor, not a separate offense, the prosecution must prove a lack of provocation in order to secure a conviction of second degree murder. People v. Garcia, 1 P.3d 214 (Colo. App. 1999), aff’d, 28 P.3d 340 (Colo. 2001).
A provocation instruction is warranted whenever a defendant shows some supporting evidence–regardless of how incredible, unreasonable, improbable, or slight it may be–to establish each factor described in subsection (3)(b). Cassels v. People, 92 P.3d 951 (Colo. 2004).
Instruction on involuntary manslaughter should have been granted. Where one of the defense theories was that the grade of the crime, if there was a crime, was at most involuntary manslaughter because the shooting of the victim was unintentional according to some of the defense evidence presented to the jury, the defendant’s request for an instruction on involuntary manslaughter should have been granted in prosecution for second degree murder. People v. Travis, 183 Colo. 255, 516 P.2d 121 (1973).
Refusal of trial court to instruct on the lesser included offense not in error when there is no evidence to support the instruction. Jones v. People, 711 P.2d 1270 (Colo. 1986).
Failure to give instruction on lesser included offense of criminally negligent homicide was harmless, even if assumed to be erroneous, where jury convicted defendant of second degree murder and rejected charge of reckless manslaughter because criminally negligent homicide is a lesser included offense of reckless manslaughter. Jury’s selection of the highest available grade of offense was a rejection of the next lower included offense and of all lesser offenses included in the latter. People v. Medina, 51 P.3d 1006 (Colo. App. 2001), aff’d, 71 P.3d 973 (Colo. 2003).
Trial court retains jurisdiction to correct erroneous sentence. Where the court has jurisdiction of the person and subject matter and has entered an erroneous judgment, it retains jurisdiction to correct, modify, and alter it in accordance with the statute. This rule is applicable to the judgment of a district court erroneously sentencing one guilty of second degree murder to life imprisonment, where defendant applied for rendition of a valid judgment after serving several years of the erroneous sentence. People ex rel. Best v. District Court, 115 Colo. 240, 171 P.2d 774 (1946).
One can be guilty of first degree assault but not attempted second degree murder. A jury’s verdict of guilty of first degree assault under § 18-3-202 (1)(e) is not irreconcilable and inconsistent with its verdict of not guilty on the charge of attempted second degree murder under this section. These crimes require different elements of proof, and the jury can find from the very same evidence that an element of one crime is present while an element of another charged crime is absent. People v. Ward, 673 P.2d 47 (Colo. App. 1983).
One is guilty of attempted second degree murder when it is established that the person acted with an awareness that death is certain to result, and proceeds to engage in conduct constituting a substantial step toward causing the death of a person. Because these are not the same elements of first degree assault, attempted second degree murder is not a lesser-included offense to first degree assault. People v. Laurson, 15 P.3d 791 (Colo. App. 2000).
Conviction for first degree assault is not inconsistent with conviction for attempted second degree murder. A defendant can engage in conduct with the intent to cause serious bodily injury while knowing but not caring that the conduct is practically certain to result in death. In such circumstances, the defendant may be found guilty of attempted second degree murder, even though lacking the specific intent to cause death. People v. Gonzales, 926 P.2d 153 (Colo. App. 1996).
Felony child abuse not inconsistent with acquittal of second degree murder. A guilty verdict for felony child abuse is not inconsistent with an acquittal of extreme indifference murder nor second degree murder. People v. Noble, 635 P.2d 203 (Colo. 1981).
Overturned first degree murder conviction resulting in conviction and resentence for second degree murder. Prosecution has discretion to decide whether case with conviction overturned, because of trial court’s submission of extreme indifference murder, should be retried on other theories of first degree murder that were originally charged or whether defendant should be convicted and resentenced for second degree murder. Crespin v. People, 721 P.2d 688 (Colo. 1986).
Where conviction was overturned because of jury instruction regarding “after deliberation” element of first degree murder, prosecution has discretion to decide whether case should be retried or whether defendant should be convicted and resentenced for second degree murder. People v. Sepulveda, 65 P.3d 1002 (Colo. 2003).
Second degree murder is a per se crime of violence, even if committed in the heat of passion. Heat of passion is a sentence mitigating factor rather than a separate offense. People v. Darbe, 62 P.3d 1006 (Colo. App. 2002).