NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
25-P-606 Appeals Court
COMMONWEALTH vs. LUIS A. CARVALHO.
No. 25-P-606.
Bristol. April 15, 2026. – June 8, 2026.
Present: Neyman, Hershfang, & Toone, JJ.
Motor Vehicle, Operation, Operating to endanger. Negligence, Motor vehicle. Probable Cause. Practice, Criminal, Dismissal.
Complaint received and sworn to in the Fall River Division of the District Court Department on September 12, 2024.
A motion to dismiss was heard by Edward W. Krippendorf, J.
David B. Mark, Assistant District Attorney, for the Commonwealth. Michael G. Solomon for the defendant.
TOONE, J. The defendant, Luis A. Carvalho, moved to
dismiss a criminal complaint charging him with negligent
operation of a motor vehicle, G. L. c. 90, § 24 (2) (a).
According to the narrative of the citing officer, filed in
support of the application for the complaint, the defendant 2
started his early morning shift at a trucking company in Fall
River by fueling a tri-axle dump truck. To gain access to the
truck's fuel tanks, he lifted the rear-load dump body fifteen
feet in the air. After fueling the truck, the defendant forgot
to lower the dump body, got into the truck, drove down Brayton
Avenue, and, at approximately 3 A.M., crashed into the Route 24
overpass. According to the officer's narrative, "The truck was
severely damaged along with damages to the overpass." At a
motion hearing in the District Court, defense counsel contended
that there was "no suggestion of any erratic or unsafe
operation" or that the defendant "was driving in a way that
would endanger the public." The judge allowed the motion, and
the Commonwealth appealed.1 Because the complaint application
established probable cause to believe that driving the dump
truck in that precarious condition might have endangered the
lives or safety of the public, we reverse.
Discussion. We review the dismissal of a criminal
complaint de novo. Commonwealth v. Humberto H., 466 Mass. 562,
566 (2013). A motion to dismiss is decided based on information
1 The defendant did not file a brief in this appeal but instead referred to the arguments he made in the District Court. The record reflects that the defendant personally decided to pursue this course of action, after consultation with counsel. Counsel for the defendant answered questions at oral argument. See Mass. R. A. P. 19 (e), as appearing in 481 Mass. 1642 (2019). 3
within the "four corners of the complaint application." Id. at
565, quoting Commonwealth v. Huggins, 84 Mass. App. Ct. 107, 111
(2013). "The application must set forth sufficient facts to
establish probable cause as to each element of the charged
crime" (citation omitted). Commonwealth v. Tyson, 104 Mass.
App. Ct. 739, 741 (2024). Probable cause "exists where the
facts and circumstances" are sufficient "to warrant a [person]
of reasonable caution in the belief that an offense has been
. . . committed." Id., quoting Commonwealth v. Coggeshall, 473
Mass. 665, 667 (2016).
To establish guilt under the negligent operation statute,
G. L. c. 90, § 24 (2) (a), "the Commonwealth must prove that the
defendant (1) operated a motor vehicle, (2) upon a public way,
(3) (recklessly or) negligently so that the lives or safety of
the public might be endangered." Commonwealth v. Duffy, 62
Mass. App. Ct. 921, 921 (2004). The parties do not dispute that
the application established probable cause to believe that the
defendant was operating a motor vehicle on a public way, so only
the third element is at issue here.
In assessing the third element, we examine whether there
was probable cause to believe that the defendant's operation was
negligent and, if so, whether such negligence endangered the
lives or safety of the public. Under G. L. c. 90, § 24 (2) (a),
negligence "is determined by the same standard that is employed 4
in tort law." Duffy, 62 Mass. App. Ct. at 922 n.2.2 Ordinary
negligence "is the failure of a responsible person, either by
omission or by action, to exercise that degree of care,
vigilance and forethought which . . . the person of ordinary
caution and prudence ought to exercise under the particular
circumstances." Commonwealth v. Howe, 103 Mass. App. Ct. 354,
358 (2023), quoting McGovern v. State Ethics Comm'n, 96 Mass.
App. Ct. 221, 232 n.25 (2019). "Proof of [the defendant's
negligent] operation of a motor vehicle may 'rest entirely on
circumstantial evidence.'" Howe, supra, quoting Commonwealth v.
Petersen, 67 Mass. App. Ct. 49, 52 (2006).
We have recognized that the "mere happening" of a collision
"is not sufficient to prove negligence on the part of the
operator of the vehicle." Howe, 103 Mass. App. Ct. at 358,
quoting Aucella v. Commonwealth, 406 Mass. 415, 418 (1990).
Some collisions "are the result simply of bad luck, not error."
Howe, supra. We also acknowledge that, as the defendant pointed
out at the motion hearing, there is no allegation in the
complaint application that he was speeding, swerving, driving
off the roadway, or otherwise operating the truck in an erratic
manner.
2 Having "of little or no significance in the application of the operating to endanger statute," the word "recklessly" is considered surplusage. Duffy, 62 Mass. App. Ct. at 921 n.1, quoting Commonwealth v. Jones, 382 Mass. 387, 392 (1981). 5
Erratic driving, however, is not the sine qua non of
negligent operation. See Commonwealth v. Kaplan, 97 Mass. App.
Ct. 540, 543 (2020); Commonwealth v. Teixeira, 95 Mass. App. Ct.
367, 370 (2019). A finding of negligent operation can also be
based on the diminished capacity of the operator, the operator's
inability to control the vehicle or see and respond to hazards,
or the dangerous condition of the vehicle itself. In Teixeira,
for example, we held that, even without evidence of erratic
driving, the jury could conclude that the defendant drove
negligently by consuming alcohol and then driving substantially
below the speed limit while holding a cell phone one foot from
his face. See Teixeira, supra at 371. In Kaplan, we held that
an officer had reasonable suspicion that the defendant was
negligently operating her car where her passenger's torso was
extended out the side window, obstructing the defendant's
ability to see and use the side view mirror. See Kaplan, supra
at 540-541, 543.
Here, the Commonwealth contends that the allegation that
the defendant drove the dump truck down Brayton Avenue with its
dump body raised in the air was adequate to establish probable
cause that he operated negligently. We agree. The information
in the complaint application supports a finding that a person of
ordinary caution and prudence would have lowered the truck's
dump body after fueling it, and that driving the truck with the 6
dump body raised on a road that went under highway overpasses
was in itself negligent.
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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
25-P-606 Appeals Court
COMMONWEALTH vs. LUIS A. CARVALHO.
No. 25-P-606.
Bristol. April 15, 2026. – June 8, 2026.
Present: Neyman, Hershfang, & Toone, JJ.
Motor Vehicle, Operation, Operating to endanger. Negligence, Motor vehicle. Probable Cause. Practice, Criminal, Dismissal.
Complaint received and sworn to in the Fall River Division of the District Court Department on September 12, 2024.
A motion to dismiss was heard by Edward W. Krippendorf, J.
David B. Mark, Assistant District Attorney, for the Commonwealth. Michael G. Solomon for the defendant.
TOONE, J. The defendant, Luis A. Carvalho, moved to
dismiss a criminal complaint charging him with negligent
operation of a motor vehicle, G. L. c. 90, § 24 (2) (a).
According to the narrative of the citing officer, filed in
support of the application for the complaint, the defendant 2
started his early morning shift at a trucking company in Fall
River by fueling a tri-axle dump truck. To gain access to the
truck's fuel tanks, he lifted the rear-load dump body fifteen
feet in the air. After fueling the truck, the defendant forgot
to lower the dump body, got into the truck, drove down Brayton
Avenue, and, at approximately 3 A.M., crashed into the Route 24
overpass. According to the officer's narrative, "The truck was
severely damaged along with damages to the overpass." At a
motion hearing in the District Court, defense counsel contended
that there was "no suggestion of any erratic or unsafe
operation" or that the defendant "was driving in a way that
would endanger the public." The judge allowed the motion, and
the Commonwealth appealed.1 Because the complaint application
established probable cause to believe that driving the dump
truck in that precarious condition might have endangered the
lives or safety of the public, we reverse.
Discussion. We review the dismissal of a criminal
complaint de novo. Commonwealth v. Humberto H., 466 Mass. 562,
566 (2013). A motion to dismiss is decided based on information
1 The defendant did not file a brief in this appeal but instead referred to the arguments he made in the District Court. The record reflects that the defendant personally decided to pursue this course of action, after consultation with counsel. Counsel for the defendant answered questions at oral argument. See Mass. R. A. P. 19 (e), as appearing in 481 Mass. 1642 (2019). 3
within the "four corners of the complaint application." Id. at
565, quoting Commonwealth v. Huggins, 84 Mass. App. Ct. 107, 111
(2013). "The application must set forth sufficient facts to
establish probable cause as to each element of the charged
crime" (citation omitted). Commonwealth v. Tyson, 104 Mass.
App. Ct. 739, 741 (2024). Probable cause "exists where the
facts and circumstances" are sufficient "to warrant a [person]
of reasonable caution in the belief that an offense has been
. . . committed." Id., quoting Commonwealth v. Coggeshall, 473
Mass. 665, 667 (2016).
To establish guilt under the negligent operation statute,
G. L. c. 90, § 24 (2) (a), "the Commonwealth must prove that the
defendant (1) operated a motor vehicle, (2) upon a public way,
(3) (recklessly or) negligently so that the lives or safety of
the public might be endangered." Commonwealth v. Duffy, 62
Mass. App. Ct. 921, 921 (2004). The parties do not dispute that
the application established probable cause to believe that the
defendant was operating a motor vehicle on a public way, so only
the third element is at issue here.
In assessing the third element, we examine whether there
was probable cause to believe that the defendant's operation was
negligent and, if so, whether such negligence endangered the
lives or safety of the public. Under G. L. c. 90, § 24 (2) (a),
negligence "is determined by the same standard that is employed 4
in tort law." Duffy, 62 Mass. App. Ct. at 922 n.2.2 Ordinary
negligence "is the failure of a responsible person, either by
omission or by action, to exercise that degree of care,
vigilance and forethought which . . . the person of ordinary
caution and prudence ought to exercise under the particular
circumstances." Commonwealth v. Howe, 103 Mass. App. Ct. 354,
358 (2023), quoting McGovern v. State Ethics Comm'n, 96 Mass.
App. Ct. 221, 232 n.25 (2019). "Proof of [the defendant's
negligent] operation of a motor vehicle may 'rest entirely on
circumstantial evidence.'" Howe, supra, quoting Commonwealth v.
Petersen, 67 Mass. App. Ct. 49, 52 (2006).
We have recognized that the "mere happening" of a collision
"is not sufficient to prove negligence on the part of the
operator of the vehicle." Howe, 103 Mass. App. Ct. at 358,
quoting Aucella v. Commonwealth, 406 Mass. 415, 418 (1990).
Some collisions "are the result simply of bad luck, not error."
Howe, supra. We also acknowledge that, as the defendant pointed
out at the motion hearing, there is no allegation in the
complaint application that he was speeding, swerving, driving
off the roadway, or otherwise operating the truck in an erratic
manner.
2 Having "of little or no significance in the application of the operating to endanger statute," the word "recklessly" is considered surplusage. Duffy, 62 Mass. App. Ct. at 921 n.1, quoting Commonwealth v. Jones, 382 Mass. 387, 392 (1981). 5
Erratic driving, however, is not the sine qua non of
negligent operation. See Commonwealth v. Kaplan, 97 Mass. App.
Ct. 540, 543 (2020); Commonwealth v. Teixeira, 95 Mass. App. Ct.
367, 370 (2019). A finding of negligent operation can also be
based on the diminished capacity of the operator, the operator's
inability to control the vehicle or see and respond to hazards,
or the dangerous condition of the vehicle itself. In Teixeira,
for example, we held that, even without evidence of erratic
driving, the jury could conclude that the defendant drove
negligently by consuming alcohol and then driving substantially
below the speed limit while holding a cell phone one foot from
his face. See Teixeira, supra at 371. In Kaplan, we held that
an officer had reasonable suspicion that the defendant was
negligently operating her car where her passenger's torso was
extended out the side window, obstructing the defendant's
ability to see and use the side view mirror. See Kaplan, supra
at 540-541, 543.
Here, the Commonwealth contends that the allegation that
the defendant drove the dump truck down Brayton Avenue with its
dump body raised in the air was adequate to establish probable
cause that he operated negligently. We agree. The information
in the complaint application supports a finding that a person of
ordinary caution and prudence would have lowered the truck's
dump body after fueling it, and that driving the truck with the 6
dump body raised on a road that went under highway overpasses
was in itself negligent.
The Supreme Judicial Court has held in a related context
that driving a vehicle in a defective condition can amount to
negligent operation. In Commonwealth v. Angelo Todesca Corp.,
446 Mass. 128, 139 (2006), the court affirmed a corporation's
conviction of motor vehicle homicide, G. L. c. 90, § 24G (b),
because a reasonable jury could have found that its employee
acted negligently in operating the corporation's dump truck even
though he knew it did not have a functioning back-up alarm. The
court applied the same standard for negligence employed in tort
law and applicable to negligent operation offenses under G. L.
c. 90, § 24 (2) (a). See Angelo Todesca Corp., supra at 139-
140; Commonwealth v. Burke, 6 Mass. App. Ct. 697, 700 (1978).
It concluded that the driver's operation of the truck while
knowing it lacked a back-up alarm was a sufficient basis for a
finding of negligence, even though he otherwise "did everything
that a reasonably prudent person would have done in the
circumstances: he told the victim that he was about to back up,
rolled down his window, checked his mirrors, turned off his
radios, and operated the truck very slowly." Angelo Todesca
Corp., supra at 138. See id. at 146 (Cordy, J., dissenting)
("It is, of course, true that some defects in a vehicle could, 7
in and of themselves, make the vehicle so unsafe that operating
it would be negligent without regard to other factors").
There is also probable cause to believe that the
defendant's alleged negligence might have endangered the lives
or safety of the public. Fortunately, it does not appear from
the complaint application that anyone was injured as a result of
the collision, perhaps because of the early hour when it
occurred. Nevertheless, the negligent operation statute "only
requires proof that the lives or safety of the public might be
endangered, not that they are endangered." Duffy, 62 Mass. App.
Ct. at 923. See McGovern, 96 Mass. App. Ct. at 232 n.25, citing
Commonwealth v. Constantino, 443 Mass. 521, 526-527 (2005) ("It
is the conduct of operating a vehicle in a negligent manner so
as to endanger the public that is proscribed, not the act of
harming another"). The application alleges that, as a result of
the collision, the dump truck and overpass were damaged and
"Brayton Ave[.] West bound was shut down due to scattered truck
parts and debris." Construing the complaint application in the
light most favorable to the Commonwealth, see Commonwealth v.
Santos, 94 Mass. App. Ct. 558, 560 (2018), citing Commonwealth
v. Leonard, 90 Mass. App. Ct. 187, 190 (2016), we conclude that
there was probable cause to believe that the defendant's 8
negligent operation of the truck might have endangered the lives
or safety of the public.3
Conclusion. We reverse the judge's order dismissing the
charge of negligent operation of a motor vehicle and remand for
further proceedings consistent with this opinion.
So ordered.
3 Our decision does not contemplate criminal liability for every person in Massachusetts who drives a vehicle in a defective condition. Some vehicle defects will not, as a matter of law, support a finding that the defendant's operation of that vehicle might have endangered the lives or safety of the public in the relevant circumstances. See, e.g., Commonwealth v. Zagwyn, 482 Mass. 1020 (2019). In Zagwyn, the Supreme Judicial Court reversed a conviction under G. L. c. 90, § 24 (2) (a), where the evidence showed that the defendant operated a vehicle with a broken headlight and rear license plate light while under the influence of alcohol. Zagwyn, supra at 1021-1022. In the absence of other evidence of negligent operation, such as speeding or swerving, the court concluded that the "scant evidence" of the vehicle's defects, "even when coupled with proof of intoxication," failed as a matter of law to support the judgment of conviction. Id. at 1022.