Plow driver will not face criminal charges but he and employer may be civilly liable.

We recently found out that the Pittsford snow plow driver who struck and killed a woman will not face criminal charges. However, this does not mean that he (and the Town of Pittsford) is "out of the woods." According to several news sources the driver was using his cell phone at the time of the accident, BUT was using his hands-free device. In New York State it is not a crime to talk on your cell so long as you are using a hands free device. The investigation was completed by the Monroe County Sheriff and the Monroe County District Attorney's Office.

People not familiar with the legal system may say "well if there was no crime then he didn't do anything wrong." But if you ask a lawyer, he or she will tell you that this is definitely not the case. The differences between the criminal justice system and the civil justice system are numerous and substantial. One major difference is the standard of proof to determine guilt/liability. In order to possibly take away a person's liberty (criminal justice system) the standard is beyond a reasonable doubt. In order to take away a person's property (civil justice system) the standard is a preponderance of the evidence. Both of these standards have very complex and specific definitions that go beyond the scope of this posting. Put VERY simply: there needs to be ALMOST no doubt of a person's guilt in order to convict him or her of a crime. In a civil context a jury needs to believe that there's a good probability (more than a 50/50 chance) that the person was legally responsible.

I must say that I am a little concerned that the Town of Pittsford did not have a policy regarding cell phone use for its employees. Several local municipalities already have policies banning cell phone use during work, and many more are now looking at their policies in the wake of this horrific tragedy. (See recent news article discussing these towns: http://www.13wham.com/news/local/story/Pittsford-Jen-Simson-Doug-Driscoll/wlp1VO5TGkydMdXmf_Mzcw.cspx)

After this tragic accident, where a mother of three is no longer with us, I hope that all of our local towns and counties look at their policies a little closer. Now I have no idea what happened on that day and the driver of that plow probably feels guilt beyond words. However, we also don't know what might have NOT happened if he wasn't on his phone.

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