(dissenting).
i
The cases before us raise the issue of criminal proximate cause in criminal negligence cases. In each case, the Court of Appeals reversed the defendant’s conviction because the trier of fact did not address whether the defendant’s conduct was *111"the” proximate cause.1 We agree with both defendants that finding that the defendant’s conduct was "a” substantial factor, which is the civil law causation standard, is insufficient in a criminal negligence case. We believe that criminal liability requires a more direct causal connection than merely finding that the defendant’s actions were "a” cause. Where there are multiple independent causes contributing to the victim’s injury or death, so that the defendant’s conduct alone would not have caused the death, we would not impose liability for criminal negligence unless the defendant’s conduct sufficiently dominated the other contributing factors, to be fairly deemed a criminal proximate cause, and the injury was reasonably foreseeable from the defendant’s negligence. More specifically, even though a victim’s contributory negligence is not an affirmative defense, it is a factor to be considered by the trier of fact in determining whether the prima facie element of proximate cause has been proven beyond a reasonable doubt.
Therefore, in People v Tims, we would affirm the judgment of the Court of Appeals, which vacated the conviction, and we would remand for a new trial because the jury instructions did not require the jury to make any proximate cause determination beyond the threshold issue of cause-in-fact. On remand, we would direct the trial court to instruct the jury that it should also find that the defendant’s negligence sufficiently dominated the victim’s negligence, in order to find that the defendant was a criminal proximate cause of the victim’s death.
In People v Kneip, even though the trial court erroneously relied on a civil law test for causation, *112we find that the trial judge’s opinion from the bench essentially found that the defendant’s gross negligence sufficiently dominated the victim’s negligence to be fairly treated as a criminal proximate cause of the victim’s death. The second driver’s negligence was a reasonably foreseeable intervening event that does not relieve the defendant of criminal liability. Therefore, we concur with the majority in reversing the judgment of the Court of Appeals, and reinstating the conviction.
ii
A. PEOPLE v TIMS
On July 9, 1989, at approximately 8:30 p.m., Greg Amman was killed when the defendant’s vehicle struck him. The facts were vigorously contested at trial. Shortly before the accident, the defendant and Bobby Osborne had engaged in a drag race on Jennings Road, between Pierson and Pasadena Roads, in Mt. Morris Township. Various lay witnesses estimated that the vehicles were traveling at speeds between seventy and ninety miles an hour, however, one witness testified that the codefendant’s vehicle stopped about a quarter of a mile before the scene of the accident. A police officer testified that the words "Finish” had been marked in white paint on Jennings Road approximately 1,578 feet before the point of impact. The officer further testified that the road dipped down and then back up, with the highest point in the road being the point of impact.
The victim ran onto Jennings Road to retrieve a whiffle ball, into the path of the defendant. The victim’s view of the defendant’s vehicle was blocked by another vehicle. Likewise, the defendant’s view of the victim was blocked by the same vehicle. The defendant attempted to avoid the *113victim, but failed. An accident reconstruction expert testified that skid marks indicated that the defendant was, at a minimum, traveling between thirty-nine and forty-three miles an hour "at the beginning of the skid.”2 The expert’s conclusion was based in part on his finding that the victim’s body slid twenty-seven feet from the point of impact to its final resting place. The expert testified that in accident reconstruction, the procedure is to work backward from the information that is collected at the scene. Therefore, he concluded that in order for a human body to slide twenty-seven feet on the then-current road conditions, the defendant’s vehicle would have been traveling at a minimum speed of twenty-two miles an hour.3 The *114posted speed limit was forty-five miles an hour. At the time of his death, the victim had a blood alcohol level of 0.09 percent.
The defendant was charged with second-degree murder. The prosecution’s theory was that the codefendants had intentionally engaged in a drag race, exhibiting a wanton disregard that a death or great bodily harm would occur, and that the drag race caused the death. The defense theory was that the race had ended before the impact with the victim, that the accident was unavoidable, and that the victim’s own negligence led to his death. After a four-day jury trial, the trial court instructed the jury regarding the causation element of each of the degrees of homicide as follows:
Each of these degrees of homicide require a finding . . . that the conduct of Mr. Tims was a substantial cause of the fatal accident.
The defendant had objected to the instruction, arguing that it was necessary for the jury to find that the defendant’s conduct was "the” substantial cause of the accident. The defendant was convicted of the lesser-included offense of negligent homicide,4 and was sentenced to sixteen to twenty-four months imprisonment.
The defendant appealed as of right to the Court of Appeals. The panel felt constrained to follow People v Layman, 299 Mich 141, 145; 299 NW 840 (1941), People v Townsend, 214 Mich 267, 275; 183 NW 177 (1921), and People v Barnes, 182 Mich 179, 199; 148 NW 400 (1914), stating that this *115Court’s holdings in those cases required that the defendant’s conduct be "the” proximate cause of the victim’s death.5 The panel reversed and remanded for a new trial, stating that the trial court erred in instructing the jury that the defendant’s conduct must be "a” rather than "the” substantial cause of the victim’s death. We granted the pros-' ecution’s application for leave to appeal.6
B. PEOPLE v KNEIP
On August 25, 1990, at approximately 1:50 a.m., Steven Barnes was killed when the defendant’s vehicle struck him. The victim, a barefoot pedestrian, clad only in a pair of shorts and carrying his tennis shoes — one in each hand — was crossing Haggerty Road near Cherry Hill Road in Canton Township. This area was not illuminated by artificial lighting. The victim had reached the left-turn lane when the defendant’s vehicle approached. The defendant, who was driving south on Haggerty Road, entered the left-turn lane in order to make a left turn, when his vehicle struck the victim.
The defendant was not speeding, and there is no indication that he was driving erratically. However, he was drunk.7
As a result of the impact, the victim was thrown from the left-turn lane into the middle of the northbound lane of Haggerty Road. His head was pointing east toward the curb, and his feet were pointing west toward the center lane of Haggerty Road. A witness to the accident examined the victim immediately after the impact and deter*116mined that he was still breathing. As the witness knelt over the victim, a second car approached. The witness tried to flag the car down, but it drove over the victim, causing severe internal injuries. The expert testimony indicated that both sets of injuries were severe and independently could have resulted in the victim’s death.
The defendant was tried in a bench trial. The trial court recognized that a conflict existed regarding the proximate cause element and applied the standard used in civil cases. The trial court stated:
"When a number of factors contribute to produce an injury, one actor’s negligence will not be considered a proximate cause of the harm unless it was a substantial factor in producing the injury.”®
The defendant’s conduct, then, was without question a substantial cause of the death of the deceased.
It also noted that the victim’s contributory negligence of walking in the left-turn lane of an extremely dark road, although not considered an affirmative defense, and the negligence of the second driver, both were "factors leading to the death of the deceased . . . .” The defendant was convicted of involuntary manslaughter.8 9 He was sentenced to five years probation, with the first year to be spent on a tether. The tether option subsequently was removed, leaving the remaining sentence intact.
The Court of Appeals reversed the defendant’s conviction, stating that it was obligated to follow *117Tims.10 We granted the prosecution’s application for leave to appeal.11
in
In both Tims and Kneip, the trier of fact merely determined that the defendant’s conduct was a substantial factor of the victim’s death. The prosecutor in Kneip argues that the terms "substantial” factor and "proximate” cause are interchangeable. We disagree. We believe that the "but for” and "substantial factor” cause-in-fact tests are merely the first step in determining causation. Finding that the defendant’s conduct was a substantial factor, or a but-for cause of the victim’s injury is not the end of the inquiry: "[T]he substantial factor test is one of exclusion only. What was not a substantial factor in causing harm was not a proximate cause thereof. What was a substantial factor may have been a proximate cause— or it may not.” Perkins & Boyce, Criminal Law (3d ed), p 780. As in tort, criminal law requires a second level of inquiry into proximate causation, which is often labeled some type of reasonably foreseeable or natural and probable result test. Proximate cause is the inquiry into whether the defendant should be held legally liable for the cause-in-fact result of his conduct. Specifically, is it just or fair to hold this defendant criminally liable for negligent conduct when other contributing factors played a significant role in bringing about the result? That is the issue facing us in the instant case.
We believe the Court of Appeals confused the *118issue by focusing on whether the defendant’s conduct must be "the sole” proximate cause. There can be situations in which more than one person’s conduct is properly charged as a proximate cause. For instance, where two or more individuals are acting in concert, such as in a conspiracy or an aiding and abetting situation, each actor’s conduct is fairly imputed to the other actors. Likewise, where two or more individuals’ autonomous actions coincide by chance, and each person’s conduct alone could have caused the result, then each person may be charged independently. In either of these situations, each person’s conduct can be fairly charged as a proximate cause.12
The grey area arises when a result happens as a consequence of a combination of independent events. Then we believe that the proximate cause inquiry is whether this defendant’s conduct, as a substantial factor in bringing about a reasonably foreseeable resulting injury, sufficiently dominated the other causal factors, to be fairly deemed a criminal proximate cause.
IV
The prosecutor in Tims argues that causation should be the same in civil and criminal law contexts. Likewise, the trial court in Kneip used a civil law standard for causation. The defendants and the defense amicus curiae13 counter that the criminal standard should remain higher. We agree because a mere finding that the defendant’s con*119duct was a substantial factor, as required by tort law, is insufficient in the criminal context.
The Tims prosecutor has failed to recognize that tort causation principles should not determine criminal causation. Because criminal penalties are generally far more burdensome to defendants than tort remedies, we believe that the causation standards that we use to impose criminal liability should remain more demanding. Moreover, as the defense amicus curiae points out, unlike tort law, which apportions liability among the responsible parties, criminal law is an all-or-nothing decision of guilty or not guilty.
The majority contends that an instruction that the defendant’s conduct was a substantial factor is sufficient. Ante at 95. In tort law, the required finding that the actor was a substantial factor is merely a test to find that the actor contributed in a measurable way to the resulting harm. Even minimál causes will be held accountable for corresponding portions of the resulting harm. In sharp contrast, we believe that minimal causes should not be subject to criminal penalties.
In People v Harding, 443 Mich 693, 738; 506 NW2d 482 (1993) (Cavanagh, C.J., concurring in part and dissenting in part), it was noted that "[a] more demanding standard is warranted because the potential deprivation of personal rights is obviously much more extreme in criminal, as opposed to tort, actions.” That opinion cited Commonwealth v Root, 403 Pa 571, 575, 580; 170 A2d 310 (1961), which had held that a more direct proximate cause connection is required in criminal homicide prosecutions.14
*120Our Court of Appeals adopted the Root reasoning in People v Scott, 29 Mich App 549, 554-555; 185 NW2d 576 (1971). The Scott panel quoted from Root at 574:
"While precedent is to be found for application of the tort law concept of 'proximate cause’ in fixing responsibility for criminal homicide, the want of any rational basis for its use in determining criminal liability can no longer be properly disregarded. When proximate cause was first borrowed from the field of tort law and applied to homicide prosecutions in Pennsylvania, the concept connoted a much more direct causal relation in producing the alleged culpable result than it does today. Proximate cause, as an essential element of a tort founded in negligence, has undergone in recent times, and is still undergoing, a marked extension. More specifically, this area of civil law has been progressively liberalized in favor of claims for damages for personal injuries to which careless conduct of others can in some way be associated. To persist in applying the tort liability concept of proximate cause to prosecutions for criminal homicide after the marked expansion of civil liability of defendants in tort actions for negligence would be to extend possible criminal liability to persons chargeable with unlawful or reckless conduct in circumstances not generally considered to present the likelihood of a resultant death.”
The Scott panel concluded:
Although neither party is able to cite authority which requires that the defendant’s criminally negligent act be the only direct and proximate *121cause of the ensuing homicide, this Court feels that the reasoning proffered by the Pennsylvania court in Commonwealth v Root, supra, constitutes the better standard. In criminal prosecutions there must be a more direct causal connection between the criminal conduct of the defendant and the homicide charged than is required by the tort liability concept of proximate cause. [Id. at 558. Emphasis added.]
Here, the Tims panel struggled with whether to apply Scott or People v Dolen, 89 Mich App 277; 279 NW2d 539 (1977), which stated that "a” proximate cause was sufficient. Tims at 337. A careful reading of Dolen reveals that the Dolen panel approved of the Root reasoning that criminal liability requires a more direct causal connection than civil liability. Id. at 281-282.15 In Dolen, the panel found that in reaching a guilty verdict, the jury must have concluded that the other driver was not a proximate cause of the victim’s death.16 Because there was only one cause of the victim’s death, the Dolen panel did not decide what jury instructions would have been necessary had the jury found that both drivers were proximate causes of the victim’s death.
A more recent Pennsylvania court summarized post -Root applications of the principle that criminal proximate cause requires a higher standard than civil proximate causé. Commonwealth v Re*122menter, 410 Pa Super 9; 598 A2d 1300 (1991).17 The Rementer court instructively explained:
It is difficult to draw a bright line between causation in the criminal law and in the tort law. Certain principles can, however, be ascertained. In order to impose criminal liability, causation must be direct and substantial. Defendants should not be exposed to a loss of liberty based on the tort standard which only provides that the event giving rise to the injury is a substantial factor. Although typically the tort context refers only to substantial and not to direct and substantial as in the criminal context, the additional language in the criminal law does not provide much guidance. Therefore, criminal causation has come to involve a case-by-case social determination; i.e., is it just or fair under the facts of the case to expose the defendant to criminal sanctions. In other words, was the defendant’s conduct so directly and substantially linked to the actual result as to give rise to the imposition of criminal liability or was the actual result so remote and attenuated that it would be unfair to hold the defendant responsible for it? [Id. at 18-19.]
Other jurisdictions have likewise followed the Root rationale.18 We believe that we should remain in their ranks.
*123The longstanding rule is that while the victim’s contributory negligence is not an affirmative defense, it is a factor in determining whether the defendant caused the resulting harm.19 We have no intention of altering that doctrine. However, fairness dictates that the prima facie causation element, particularly in criminal negligence cases, requires more than the mere finding that the defendant’s conduct was a factor contributing to the resulting harm. We believe that in criminal negligence cases, when the defendant’s conduct alone could not have independently resulted in the harm, the trier of fact must determine, beyond a reasonable doubt, that the defendant’s conduct sufficiently dominated other contributing factors to be fairly deemed a criminal proximate cause.
Although the precise language may change from case to case, this idea is certainly not new. In Barnes, the Court considered whether the victim’s death was "a direct and natural result” of the defendant’s conduct. Id. at 196. In Townsend, the trial court instructed the jury that the victim’s *124death must have been " 'a direct and natural result’ ” of the defendant’s conduct. Id. at 277. In Layman, the trial court instructed the jury that " 'Proximate cause means the direct cause ....’” Id. at 146. All these cases required more than a mere finding that the defendant’s conduct was a significant factor in causing the death; they required that the defendant’s conduct was a direct cause of the death.
In the instant case, the defendants each were found to be a substantial factor in the resulting deaths. However, under the longstanding precedent in this state, the triers of fact were further required to determine whether the defendant’s conduct was a direct cause.
A Pennsylvania case addressed this concept. Commonwealth v Molinaro, 429 Pa Super 29; 631 A2d 1040 (1993). There, the trial court instructed the jury:
"In a criminal case, you are not to concern yourselves with the actions of the victim. Contributory negligence of the victim is not a defense to a criminal charge of homicide by motor vehicle if you find that the defendant’s actions were a substantial factor in causing death.” [Id. at 35.]
The appellate court reversed, stating:
At no point was the jury instructed that the victim’s conduct should be considered in connection with the causation issue.
This instruction contains an inaccurate statement of the applicable law. Under the case law, the jury must be instructed to consider the victim’s actions in connection with the causation determination, where the evidence indicates that those actions may have contributed to the accident. [Id. at 35-36. Citation omitted.]
*125The court quoted with approval "Pennsylvania Suggested Standard Jury Instruction 15.2501C(3).” That instruction provided:
"(1) You cannot find that the defendant killed [the victim] unless you are satisfied beyond a reasonable doubt that the defendant’s conduct was a direct cause of his death.
"(2) In order to be a direct cause of a death, a person’s conduct must be a direct and substantial factor in bringing about the death. There can be more than one direct cause of a death. A defendant who is a direct cause of a death may be criminally liable even though there are other direct causes.
"(3) A defendant is not a direct cause of a death if the actions of the victim . . . plays [sic] such an independent important and overriding role in bringing about the death, compared with the role of the defendant, that the defendant’s conduct does not amount to a direct and substantial factor in bringing about the death.” [Id. at 36-37.]
In cases such as the two before us, we believe that the jury will find this inquiry easier to understand by phrasing the instruction in terms of sufficient dominance and fairness. We believe that the jury can best determine whether it is fair, on the facts before it, to impose criminal liability on a negligent defendant by instructing the jury that it must find that the defendant’s negligence sufficiently dominated the other contributing factors.
v
In Tims, the actions of independently acting individuals combined to result in the victim’s death: the victim’s negligence and the defendant’s negligence. Therefore, the cause-in-fact test is whether the defendant’s conduct was a substantial *126factor in bringing about the victim’s death. The trial judge instructed the jury about negligent, homicide:
Another lesser included offense is the crime of negligent homicide.
To establish that Mr. Tims is guilty of that crime the prosecution must prove beyond a reasonable doubt, first, that Mr. Tims was driving a motor vehicle on or about July 9, 1989, in Genesee County.
Second, that he was driving in a careless or negligent manner.
Third, that the defendant’s negligence was a substantial cause of an accident resulting in fatal injuries to Mr. Amman![20] [Emphasis added,]
The defendant adequately preserved his objection to the instructions during the conference discussing jury instructions by arguing that the instructions should require that the jury find that the defendant was "the” substantial cause of the death. The trial judge failed to adequately instruct the jury about proximate cause. We find that this was error requiring reversal because it was not harmless beyond a reasonable doubt. The inadequate instruction pertained to an essential element, and, if properly instructed, the jury may have reached a different verdict because we cannot conclude that it necessarily found that the defendant’s negligence sufficiently dominated the victim’s negligence to be fairly treated as a criminal *127proximate cause of the death.21 We remand for a new trial. On remand, we direct the trial court to further instruct the jury that it must also find that the defendant’s negligence sufficiently dominated the victim’s negligence, to be fairly treated as a criminal proximate cause of the victim’s death, if that death was also reasonably foreseeable from the defendant’s negligence.
In Kneip, the actions of three independent persons combined to result in the victim’s death: the victim’s negligence, the defendant’s gross negligence, and the second driver’s subsequent negligence. Again, we would apply the substantial-factor test to the original collision between the defendant’s car and the victim. This collision set in motion a "but-for” chain of events, whereby the victim was struck again by the second driver. This intervening collision was exactly the type of injury that is reasonably foreseeable from the first collision. Consequently, the negligence of the second driver would not qualify as a superseding cause that would cut off the first driver’s liability.
At the bench trial, the trial court applied the tort law standard22 and concluded "the defendant’s conduct was a substantial cause of the death.” However, the trial court further stated:
In this case, there was nothing wrong with the defendant’s car; the headlights were functional. In other words, all reasonably prudent drivers must be able to drive, and in fact drive in a manner so as to avoid hitting pedestrians in the roadway; even if a pedestrian’s presence is unexpected; except, of course, where you truly have a case of an individual darting in front of a car as it ap*128proaches; where you have a pure accident. That’s not the case here.
I find that although the area is clearly dark, and at the time of the impact there was no meaningful street or store lighting; the defendant should have easily been able to avoid the deceased; especially when he was not speeding, or indeed when he was probably under the speed limit.
Even though the trial court erroneously used a tort law analysis, we would find that the error was harmless beyond a reasonable doubt because the trial court has essentially determined that the victim’s death was reasonably foreseeable, and that the defendant’s gross negligence sufficiently dominated the victim’s negligence to be fairly treated as a criminal proximate cause of the victim’s death.
Unlike Tims, here we can actually assess the facts as determined by the trial court. The court found that open intoxicants and empty beer cans were in the defendant’s car, that the defendant’s blood alcohol content was 0.10 percent, and it emphasized that "[t]he defendant made no effort to aid the deceased.” In contrast with Tims, the court also found "that the defendant did not brake his vehicle until or after impact.” Additionally, unlike Tims, "there were no skid marks.” We conclude that the defendant’s grossly negligent conduct sufficiently dominated the victim’s negligence of walking across the road without looking. We are most persuaded by the findings of the trial court: that the defendant was drunk; that he failed to brake, even though he should have seen the victim (unlike Tims); and that he failed to make any attempt to assist in moving the victim out of the path of oncoming traffic after the accident. Therefore, we concur with the majority in reversing the *129judgment of the Court of Appeals and reinstating the conviction.
Brickley, C.J., and Levin, J., concurred with Cavanagh, J.202 Mich App 335; 508 NW2d 175 (1993); unpublished opinion per curiam of the Court of Appeals, issued March 10, 1994 (Docket No. 144608). .
The prosecution’s expert testified that there were skid marks as long as sixty-one feet. He further testified that with the concurrent road conditions, a vehicle traveling forty miles an hour would need up to eighty-eight feet to stop. The lead opinion summarily rejects this scientific evidence as incredible, apparently claiming to have a better appreciation of the scene than the expert witness who arrived shortly after the accident occurred. Further, the lead opinion’s reliance on the testimony of John Gough should be qualified by the conflicting testimony that the Camaro had pulled off the road a quarter of a mile before the accident. Ante at 90. Because of its conflict with other "direct” testimony, Mr. Gough’s testimony should be given cautionary reliance. Moreover, it is clear that the jury rejected the argument that the defendant was traveling "approximately ninety miles an hour at the point” of impact because it acquitted the defendant of second-degree murder and of gross negligence manslaughter. Because of the wide disparity in the evidence between twenty-two miles an hour and ninety miles an hour, the lead opinion’s pronouncement that the verdict establishes that the true speed was ninety miles an hour is difficult to understand. If the jury truly believed that the defendant was traveling at a speed of ninety miles an hour, it would have rationally returned a verdict of malicious or grossly negligent conduct. Its finding of merely ordinary negligence conduct is fundamentally at odds with the lead opinion’s characterization of this case.
The expert testified in part:
We know that the pedestrian essentially had no velocity on the access of Jennings Road. He, was running across the road. Something gave his body velocity causing him to slide 27 feet, and we know at what rate a body decelerates on a hard surface like that, so we can determine a minimum speed for the body sliding the 27 feet to rest. In essence, you work backwards. The *114pedestrian was hit and slid 27 feet. So we can determine a speed required to cause that pedestrian to slide on that surface 27 feet.
MCL 750.324; MSA 28.556.
202 Mich App 339-340.
445 Mich 862 (1994).
A blood alcohol test administered approximately three hours after the accident revealed that the defendant had a blood alcohol level of 0.18 percent.
The trial court was quoting Brisboy v Fibreboard Corp, 429 Mich 541, 547; 418 NW2d 650 (1988).
MCL 750.321; MSA 28.553.
Although the Court of Appeals panel in Kneip believed that "a” substantial cause is the appropriate standard, it was compelled to follow Tims pursuant to Administrative Order No. 1990-6, extended by Administrative Order Nos. 1991-11, 1992-8, and 1993-4.
446 Mich 866 (1994).
The majority misinterprets our conclusion when it opines that independent acts of negligence will be excused. Ante at 101. If the defendant’s conduct, in and of itself (i.e., but-for), caused the harm, then the defendant is properly held criminally liable if the harm was the natural and probable result of his conduct because the victim’s conduct was not a contributing cause. Further, we expressly conclude that accomplice liability is not at issue in the present case.
Criminal Defense Attorneys of Michigan.
Contrary to the majority’s assertions, the Pennsylvania Supreme Court still considered Root good law when it cited the case in Commonwealth v Mayhue, 536 Pa 271, 309; 639 A2d 421 (1994). The majority cites Commonwealth v Long, 425 Pa Super 170; 624 A2d 200 *120(1993). Ante at 106. Long stated: "Our supreme court has long held that establishing causation under a tort theory is insufficient to impose criminal liability upon a person.” Id. at 176, citing Root at 575. In Long, the court held that there was insufficient evidence that the victim was intoxicated and therefore no instruction was required. Id. at 177.
Moreover, we believe that Dolen misread the Scott decision as holding that the defendant’s conduct must be the only direct and proximate cause of the victim’s death. Id. at 280-281. The Scott panel did not hold this, in fact, it specifically rejected this argument when it held that the Root reasoning was the better standard. Scott merely held that criminal liability requires a more direct causal connection, not that the defendant’s conduct be the only causal connection.
In Dolen, the trial court instructed the jury that if the other driver was a proximate cause of the accident, then the defendant was not guilty. The panel held that the erroneous instructions were in the defendant’s favor. Id. at 280.
See Commonwealth v Shoup, 423 Pa Super 12, 18; 620 A2d 15 (1993):
The tort concept of proximate cause plays no role in a prosecution for criminal homicide.
For example, New York’s highest court stated:
We subscribe to the requirement that the defendants’ actions must be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability, and recognize, of course, that this standard is greater than that required to serve as a basis for tort liability. [People v Kibbe, 35 NY2d 407, 413; 362 NYS2d 848; 321 NE2d 773 (1974). Kibbe later sought a writ of habeas corpus, which was granted in a federal court. See Henderson v Kibbe, 431 US 145; 97 S Ct 1730; 52 L Ed 2d *123203 (1977), which reversed the writ, and, in effect, affirmed the New York court.]
See People v Warner-Lambert Co, 51 NY2d 295, 306; 434 NYS2d 159; 414 NE2d 660 (1980) (rejecting "sweeping theory” of civil proximate cause in criminal cases). See also Campbell v State, 293 Md 438, 450-451; 444 A2d 1034 (1982), in which the court stated:
[T]he tort liability concept of proximate cause has no proper place in prosecutions for criminal homicide. There is a difference between the underlying rationale of tort and criminal law. Tort law is primarily concerned with who shall bear the burden of loss, while criminal law is concerned with the imposition of punishment.
People v Clark, 295 Mich 704, 708-709; 295 NW 370 (1940); People v Campbell, 237 Mich 424, 430; 212 NW 97 (1927); Barnes at 195. See also Coates v State, 90 Md App 105, 118; 600 A2d 856 (1992) (evidence of intoxication is relevant to causation).
The trial court also instructed the jury:
Negligence, if any, on the part of the deceased is not a defense to second degree murder, or to involuntary manslaughter, or to negligent homicide. However, you must consider the conduct of Mr. Amman in determining whether the driving of Mr. Tims was a substantial cause of the accident.
See People v Vaughn, 447 Mich 217, 238; 524 NW2d 217 (1994) (Bkickley, J.), p 257 (Cavanagh, C.J., concurring in part and dissenting in part), p 267 (Levin, J., dissenting).
The Brisboy substantial factor test.