This is permissible prosecutorial discretion, but it again illustrates the power of tort concepts in the traffic context.
While the courts are, unsurprisingly, generally attentive to the tort/crime line, even the sophisticated New York Court of Appeals has slouched toward tort when deciding traffic crime cases.
This interpretation of the MPC marked a significant change in New York's criminal law: it deviated from the statutory definition of criminal negligence, which focuses on risk perception, in order to emphasize conduct, the traditional measure of negligence in tort. This shift has appeared in negligent-homicide cases before the New York Court of Appeals, each of which has looked at the driver's conduct, rather than his state of mind, to determine negligence.
(12) As James Edelman argues, waiver of tort, having lost its conceptual anchor, likely should have died along with the implied contract theory.
Where "waiving the tort" was possible, it was nothing more than a choice between possible remedies derived from a time when it was not permitted to combine them or to pursue them in the alternative....
Unfortunately, their Lordships did not clarify whether waiver of tort (in its parasitic version) is merely a procedural election between the remedies of compensation or disgorgement after proving the elements of a tort, or whether waiver of tort simply allows a restitutionary claim in unjust enrichment to be pleaded in the alternative.
The nature of tort liability's risk-spreading relationship can be illustrated by considering the situation of a manufacturer of a potentially defective product.
Tort liability can provide an alternative to price reductions for risky products and consequently can serve a potentially constructive function both from the standpoint of the consumers and the seller of the product.
The safety-incentive role of tort liability becomes even greater if consumers are not aware of the product risk.