Mallett, J.
The defendants in these consolidated cases were convicted of negligent homicide and involuntary manslaughter, respectively, both arising out of the use of automobiles. In separate decisions, the Court of Appeals reversed their convictions, holding that a defendant may be convicted of these offenses only if his culpable conduct is found to be "the” proximate cause of death. We would reverse the decision of the Court of Appeals in Kneip, and would reverse in Tims.
i
FACTS AND PROCEDURAL HISTORY
A
PEOPLE v TIMS
This case arises out of a fatal accident that took [87]*87place at approximately 8:30 p.m. on Sunday, July 9, 1989. It was a clear day. Shortly before the accident, the defendant and Bobby Osborne engaged in a drag race on Jennings Road in Genesee County. The defendant was driving a blue Pontiac Trans Am. Osborne was driving a Chevrolet Z-28 Camaro.
Even after the drag race ended and Mr. Osborne had stopped at the side of the road, the defendant continued to drive extremely fast. The most complete description of the accident comes from witness Daniel Frederick, who was traveling southbound — the same direction as the defendant — in the far right lane. Earlier, he had passed between the defendant’s car and Mr. Osborne’s car as they were preparing for their race. He essentially stated that the victim, who checked for traffic before entering the road, jogged across the southbound lanes a safe distance in front of his car, which was traveling the legal speed limit. When the victim reached the northbound lanes, he was struck by the defendant’s southbound car, which had been traveling at about twice the speed limit and had swerved into the northbound lanes in an attempt to avoid him:
A. I noted that the blue car was closing the gap between our cars, you know, rapidly, and I, ah, noted that he also, as I traveled down I noted that he cut over one lane. In other words, he went into the — still in the southbound lanes, but heading— he was in the west whereas he was in the east lane cornin’ up from behind.
Q. So he is in the center?
A. Yes, that’s correct. And I continued down to the baseball players — the two guys playing base[88]*88ball. I didn’t see the ball go. I assume they were hit — earlier I had seen them hit a ball, so I assumed that they were . . .
Q. Well, don’t — don’t assume. Just tell what you saw?
A. I saw a guy — there was probably, oh, a car- and-a-half, two cars ahead of me and I saw the guys that was playin’ ball in front of my car. He had an adequate amount of time. I didn’t even have to slow up.
Q. How many car lengths is this now?
A. I would estimate probably about two car lengths.
Q. How long are you calling a car length?
A. All right, let’s say car lengths would be — let’s say — well, actually it would be more than that. I would say probably 30 feet anyways.
Q. So he runs into your lane?
A. I think that would be a better explanation. A jog — kind of a slowish jog into the street. Like I said, he had plenty of time to get in front of my car. I noted that he looked at me and seen he had time and ran . . .
■ Q. Okay, you saw him look at you. You looked to the left?
A. Yeah, he looked in my direction and saw my car.
Q. Was that before he entered the street?
A. Yes, it was.
Q. Now he enters Jennings Road and he goes where?
A. Continues on across the street. Now he goes into the next lane, which would be the — still in the southbound lanes, and he went into the— which would be the westbound lane — excuse me, the western lane, and . . .
Q. You would have been in lane number 1.
A. I would have been in lane number 1. Okay. The baseball player cut in front of my car, going from 1 towards 2. All right . . .
[89]*89Q. What did you see happen when he was in lane 2?
A. I glanced in my rear view mirror and the blue car was rapidly closing the gap. He was in the same lane as. the young man runnin’ — or joggin’. At that time the blue car.veered to the left to avoid him. He went over into what would be the northbound lanes, probably one-and-one-half lanes, so he was probably — his car — he had probably— from the driver’s wheel I would say he had like maybe two feet before he would have hit the curb.
Q. But where was the person?
A. Okay, in the second lane he glanced over this way to the left, but he was still running. He ran— continued to run, saw the blue car, and did like— the best way I can describe it it would be a momentary pause or stop.
He would be in — by now he was in — probably what would be lane 3. In other words, he would have been in the northbound lanes.
Q. He would have crossed the center line?
A. Yes.
Q. After he did that little pause what did he do?
A. After he did the pause he looked and then he just took a step?
Q. And then what happened?
The right front fender of the defendant’s car hit the victim, Greg Amman, whom the parties stipulated had a blood alcohol content of 0.09 percent by weight, "and kind of rolled him along the side, and at the post — around the door post it threw him off and he sort of slid ending up almost in the center line.”
The evidence supporting the verdict establishes that the defendant was driving approximately ninety miles an hour when the right front fender of his car struck the decedent, and seventy to [90]*90eighty miles an hour a quarter to half a mile down the road. Mr. Frederick testified that the car struck the victim just as Mr. Tims had completed passing him. At that time, he was traveling at forty-five miles an hour himself, and the defendant was traveling at ninety miles an hour.
John Gough testified that as he was traveling northbound on the inside (west)'lane of Jennings Road about one-half to one-quarter mile south of the accident, "I seen a body flying through the air, a blue Trans Am goin’ — well, after I seen the body cornin’ in my lane, so I come to a stop, and the Trans Am went by me on the right and another car went by me on the left — a silver Camaro.” Mr. Gough, a thirty-two-year-old former drag racer, estimated that the blue Trans Am was traveling severity to eighty miles an hour at the time it passed him.
Two separate sets of recently made skid marks were observed at the scene of the accident: a set of marks sixty-one feet long, crossing the center line, and a set of skid marks twenty-nine feet long, following those. Officer Caterer testified that the gap between the two sets of skid marks could be caused by one of two factors: "the fading of the brakes or the fact that the tire was locked and sliding but just not merely making a mark on that concrete surface,” which he had previously explained does not show skid marks well.
An accident reconstruction expert who was asked about the minimum speed necessary to produce a skid mark sixty-one feet long1 answered that a car must be traveling at a minimum speed [91]*91of about thirty-nine to forty-three miles an hour.2 The figure of thirty-nine to forty-three miles an hour appears to be calculated with the assumption that the defendant’s car stopped at the end of sixty-one feet. As stated previously, however, the defendant did not stop either when he struck the victim or at the end of the first skid mark, and instead drove on at a speed of between seventy and eighty miles an hour.
The defendant did not challenge the sufficiency of the evidence on appeal. Instead, he claimed that the trial court erred in instructing the jury that the defendant’s conduct must be " 'a substantial’ cause of the fatal accident.” Defense counsel, who [92]*92argued in closing that the victim darted out in front of the defendant’s car and that the defendant could not have avoided the accident, had requested an instruction that the defendant’s conduct must be "the” cause of the accident. The Court of Appeals agreed that the instruction was erroneous, and reversed. 202 Mich App 335, 339-340; 508 NW2d 175 (1993). We granted the prosecutor’s application for leave to appeal. 445 Mich 862 (1994).
B
PEOPLE v KNEIP
At approximately 1:50 a.m. on August 25, 1990, Steven Barnes was killed when defendant Kneip’s vehicle struck him. Mr. Barnes, a barefoot pedestrian, clad only in a pair of shorts and carrying his tennis shoes — one in each hand — was slowly crossing Haggerty Road near Cherry Hill Road in Canton Township. This area was dark and was not illuminated by artificial lighting. Mr. Barnes had reached the left-turn lane when defendant’s vehicle approached. Defendant, who was driving south on Haggerty Road, proceeded into the left-turn lane in order to negotiate a left turn, when his vehicle struck Mr. Barnes. Defendant was not speeding, and there is no. indication that he was driving erratically. However, he was drunk. Thus, his ability to react properly was impaired. A blood alcohol test administered three hours after the accident revealed that defendant had a blood alcohol level of 0.18 percent.
A witness of the accident examined Mr. Barnes immediately after the impact and determined that he was still breathing. As a result of the impact, he was thrown from the left-turn lane into the middle of the northbound lane of Haggerty Road. [93]*93His head was pointing east toward the curb, and his feet were pointing west toward the center lane of Haggerty Road. As the witness knelt over Mr. Barnes, a second car approached. The witness tried to flag the car down, but it drove over Mr. Barnes, causing severe internal injuries and narrowly avoiding contact with the witness. Expert testimony indicated that both sets of injuries were severe and independently could have resulted in Mr. Barnes’ death.
Defendant was tried in a bench trial before Detroit Recorder’s Court Judge Michael F. Sapala. The judge recognized that a conflict exists regarding the proximate cause element.3
4He ruled as follows:
"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.
The court rendered an oral opinion, finding that defendant’s negligence was "a” proximate cause of Mr. Barnes’ death. He also noted that Mr. Barnes’ 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 [94]*94leading to the death of the deceased . . . Defendant was sentenced to five years probation, with the first year to be spent on a tether. The tether option was subsequently removed, leaving the remaining sentence intact.
The Court of Appeals reversed defendant’s conviction. Although the panel believed that "a” proximate cause is the appropriate standard, it was obligated by Administrative Order Nos. 1990-6 and 1993-4 to follow Tims. We granted the prosecution’s application for leave to appeal. 446 Mich 866 (1994).
ii
LEGAL BACKGROUND
Because the causation element for negligent homicide and involuntary manslaughter is defined by the common law, we must examine the case law of Michigan and foreign jurisdictions regarding the proximate cause elements of these crimes. Involuntary manslaughter, of which defendant Kneip was convicted, is proscribed by MCL 750.321; MSA 28.553, which does not specifically define the offense. "Involuntary manslaughter is the unintentional killing of another without malice” in combination with a specified culpable act or mental state, People v Beach, 429 Mich 450, 477; 418 NW2d 861 (1988) (emphasis added), which includes a causation component. We construe the causation element in accordance with its common-law meaning.
Negligent homicide, of which defendant Tims was convicted, is also proscribed by statute. See MCL 750.324; MSA 28.556. Although the statute includes a causation element, it provides no guidance regarding the scope of that element. Thus, [95]*95the scope and necessary connection between the act and injury has been left to common law.
The common-law causation element is comprised of two components, cause-in-fact or proximate/ legal cause. In order to convict a defendant of a criminal negligence offense, the prosecutor must prove beyond a reasonable doubt that the defendant’s conduct was a factual cause of the fatal accident. Current Michigan practice is to instruct the jury that a defendant’s conduct must be "a substantial cause,” which appears to combine two verbal formulas employed in other jurisdictions: that a defendant’s negligence must be a "but for” cause, or that it must be a "substantial factor.”5
Although a cause-in-fact relationship is often sufficient, cases arise in which the death is so remote from the defendant’s conduct that it would be unjust to permit conviction. In such a case, the question for the jury is whether the defendant’s conduct was the proximate or legal cause of the decedent’s death. See, e.g., People v Barnes, 182 Mich 179, 198; 148 NW 400 (1914).
in '
THE DEFENDANTS’ CLAIM OF ERROR
Each defendant raises the same arguments: he may be convicted only if his conduct was "the” cause of death, and his conviction was erroneous because the trier of fact determined only that his culpable conduct was "a” cause. The rule urged by the defendants, if accepted, would mean that the negligence of either the victim or a third party, if it was also a proximate cause of death, would be a complete defense._
[96]*96The defendants’ arguments were accepted by the majority of the Court of Appeals in Tims. Although agreeing with the view that the defendant’s conduct need only be "a” substantial cause of the accident, the majority reluctantly concluded that this Court’s decisions in People v Barnes, supra, People v Townsend, 214 Mich 267, 275; 183 NW 177 (1921), and People v Layman, 299 Mich 141, 145; 299 NW 840 (1941), held that a defendant’s culpable conduct must be "the” cause of death, as opposed to "a” cause:
Although we recognize that this Court has created a conflict on this issue, we are precluded from resolving it. No conflict exists on the issue within the Michigan Supreme Court. According to our Supreme Court, in order for a defendant to be convicted of vehicular homicide, his conduct must be "the proximate cause” of the death. [202 Mich App 339-340 (Marilyn Kelly, J.).]
On this basis, the Court found that the jury instructions were error requiring reversal.
We agree with the Court of Appeals understanding that the proper test is "a” cause. There is no support in this Court’s decisions for the contrary view, and no policy justification for its adoption.
The phrase "the proximate cause” is a legal colloquialism reflecting the reality that, particularly in homicide cases, there is almost invariably only one culpable act that could be considered a direct cause — a knife being stabbed, a gun being fired, or a car driven recklessly. The phrase does not imply that a defendant is responsible for harm only when his act is the sole antecedent.
The suggestion that the presence of an additional "cause” of death could be a complete defense to negligent homicide is inconsistent with accepted notions of responsibility. Acceptance of [97]*97such a proposition would require, for example, that if an infant died because it was locked in a hot car on a sunny day, and the child was left there by two parents rather than one, neither could be found criminally responsible. Similarly, if a guest died in a hotel fire that began because another guest was setting off firecrackers in a room, the latter guest’s extremely culpable conduct would be excused or mitigated if it turned out that, unknown to him at the time, another person doing the same thing also set a fire accidentally at the other end of the hotel. Such examples illustrate the basis for the sound proposition embodied in the doctrine of "a” substantial cause, that joint equal causes do not excuse culpable behavior.
PEOPLE v TIMS: THE ACTS OF THE VICTIM
The other "causal factor” in Tims was the alleged negligence of the victim. The defendants’ proposed rule, if accepted, would make the negligence of the victim a complete defense in prosecutions of negligent homicide and vehicular manslaughter. Our Court, however, has long held that although a victim’s contributory negligence is a factor to consider in determining whether the defendant’s negligence caused the victim’s death, it is not a defense. In People v Barnes, 182 Mich 195 (adopting State v Campbell, 82 Conn 671; 74 A 927 (1910), we noted:
"The rule of law concerning contributory negligence by the injured person, as a defense in civil actions for damages for personal injuries, had no application to this case. The State was required to prove the alleged unlawful act of the accused and its consequences, but not that the deceased exer[98]*98cised due care to avoid the consequences of that unlawful act.”
We reaffirmed that rule in People v Campbell, 237 Mich 424; 212 NW 97 (1927), in which we reversed the defendant’s conviction because the trial court excluded evidence of the victim’s conduct that was relevant in determining whether the defendant was negligent. In the process, we noted that, although the victim’s negligence is admissible for that purpose, it is not a defense:
The defendant . . . testified that he was keeping a lookout, but that he assumed that no person would be walking out in that part of the highway where he was driving. The deceased were not crossing the highway. . . . Considering the darkness, the misty atmosphere, the slippery condition of the pavement, their position in the highway, the fact that there was a safer place to walk, and their knowledge of the fact that automobiles would be constantly overtaking them from the rear, were the deceased, at the time of the accident, using ordinary care for their own safety? If they were not, that fact would not be a defense, but it would be an important factor in the case which the defendant would be entitled to have the jury consider. [Id. at 431. Emphasis added.]
This longstanding Michigan rule is no aberration. It appears to be the universal rule.6
[99]*99In Tims, the trial court properly instructed the jury that it "must consider the conduct of Mr. Amman in determining whether the driving of Mr. Tims was a substantial cause of the accident.” Because the alleged negligence of the victim, if established, would not have required acquittal, it was proper to instruct the jury that the defendant’s conduct need only be "a” proximate cause of death.
PEOPLE v KNEIP: THE ACTS OF A THIRD PARTY
Kneip involves not only possible negligence by the victim, but also by a third party. It is equally well established that the negligent act of a third party is not a defense, but is only one factor to be considered in ascertaining whether the defendant’s negligence caused the victim’s death.
This Court’s decision in Townsend, although not controlling in this case, affirms the rule that the [100]*100contributory negligence of a third party is not a defense. The defendant, who had driven while intoxicated, struck a tree. His passenger died in the hospital. The defendant objected to the jury instructions in his trial for involuntary manslaughter, which stated that the medical treatment received by the decedent was a defense only if it was grossly negligent. In affirming the defendant’s conviction, this Court recounted that a defendant’s act may be the cause of death even if ordinarily (as opposed to grossly) negligent treatment contributed to the death:
Defendant cannot exonerate himself from criminal liability by showing that under a different or more skilful treatment the doctor might have saved the life of the deceased and thereby have avoided the natural consequences flowing from the wounds. Defendant was not entitled to go to the jury upon the theory claimed unless the medical treatment was so grossly erroneous or unskilful as to have been the cause of the death, for it is no defense to show that other or different medical treatment might or would have prevented the natural consequences flowing from the wounds. [214 Mich 279.]
The Court quoted from a treatise in which the rule of law was "well stated”:
"He who inflicted the injury is liable even though the medical or surgical treatment which was the direct cause of the death was erroneous or unskilful, or although the death was due to the negligence or failure by the deceased to procure treatment or take proper care of the wound. The same is true with respect to the negligence of nurses or other attendants. This rule is sometimes stated with the qualification that the wound must have been mortal or dangerous; but it is usually [101]*101held that the defendant is liable, although the wound was not mortal.” [Id. at 278-279.]
In Kneip, the other "causal factor” was the unidentified car that ran over the victim after he was struck by the defendant. The expert testimony, however, was that the victim would have died whether or not he had been struck by the second car. '
iv
THE POSITION OF THE DISSENTING OPINION
We are apparently unanimous in rejecting the defendants’ only claim of error. The signers of the dissenting opinion would nevertheless reverse the defendant’s conviction in Tims by establishing and applying retrospectively a rule that has not been asked for by the parties or addressed by any court at any stage of this litigation: that a "defendant’s conduct sufficiently dominated the other contributing factors ... to be fairly deemed a criminal proximate cause . . . .” Post at 111.
We note that, like the defendants’ proposed rule, the dissenters’ proposed requirement also fails the test of common sense. Insofar as it requires that a "defendant’s conduct dominate[] other contributing factors,” the justices would apparently forbid any conviction where a death was jointly caused by independent but identical acts, such as parents who leave their child in a hot car to suffocate. From both a common-sense and a legal perspective, we cannot discern any reason that a defendant whose negligent conduct causes the death of a person should be excused by virtue of the fact that another person was also negligent.
To the extent that the proposed requirement is intended to prevent drivers from being convicted [102]*102for homicide for accidents that they could not have avoided, the law has prevented this unjust result for at least a century. The exacting rules of criminal causation dictate that a driver is not in fact or law the cause of a deceased’s death unless the proofs are such that a jury could find beyond a reasonable doubt that the defendant could have avoided the accident. Absent such proofs, the defendant is entitled to dismissal of the charge, a directed verdict, or an order reversing the conviction.
The rule that a defendant may not be convicted for a crime that he could not have avoided has long been settled. For example, Queen v Dalloway, 2 Cox 273 (CC, 1847) (summarized in Perkins & Boyce, Criminal Law [3d ed], p 787), involved the death of a child who suddenly ran out in front of a horse-drawn vehicle and was killed. The jury was charged that if, by the utmost care on his part, the driver could not have prevented the accident, he must be acquitted.
This Court adopted the same rule in 1914. See People v Barnes, supra. That case involved the death of a young woman, Mary Robb, who was fatally injured when she was struck by the defendant’s car. The defendant testified that as he drove within a few feet of two girls, "the Robb girl got in front of the machine.” Id. at 183. The trial judge instructed the jury that if the defendant was driving in excess of ten miles an hour,
then he may be found guilty of manslaughter, even though he made the best endeavor possible under such speed to avert the accident, and even though Mary Robb, in bewilderment, or heedlessness, or carelessness, ran in front of the automobile .... [Id. at 189.]
We reversed the defendant’s conviction because [103]*103"the charge of the court eliminated all necessary connection between the speed of the car and the death of Mary Robb.” Id. at 197. "From aught that appears in this record, the injury might have occurred just the same if the respondent had been running 9 miles an hour as it would were he running 11 miles an hour.” Id. at 192.
[W]ould it be claimed here that, because respondent was by one mile per hour exceeding the legal speed limit, he would be responsible for the death of Mary Robb, if in her excitement and confusion she jumped in front of the car at a time when it was physically impossible for the respondent to stop it before inflicting the injury? Would the mere fact that a car was being operated slightly in excess of the legal speed limit make a respondent guilty of manslaughter if a person wilfully threw himself in front of the car and received injury? To ask these questions is to answer them in the negative. [Id. at 195-196.]
By claiming that it has established this principle for the first time, the dissent would invite attacks on convictions obtained under settled rules that presented the identical concept to factfinders, albeit in different words than those now decreed.
Despite protestations to the contrary, the dissent incorrectly advances the notion that a victim’s negligence can be a defense to negligent homicide under certain circumstances, rather than simply a factor for the jury to consider. Thus it appears that the dissent holds that unless defendant’s act is found to "sufficiently dominate” other causes, a defendant would apparently be entitled to acquittal even if a jury finds that
(1) the defendant was negligent,
(2) the -victim would not have died but for the defendant’s negligence, and
[104]*104(3) the death was a foreseeable risk of the defendant’s conduct.
The established rule' is that the negligence of the victim, if any, should be considered in making determinations 2 and 3. The negligence of the victim is grounds for acquittal only when it shows' that the defendant was not negligent or did not cause the decedent’s death.7 Where the jury finds that those requirements are satisfied, the conduct of the victim is not a defense.8
THE OSTENSIBLE JUSTIFICATION
The dissent attempts to justify the claimed need for a new rule with the claim that "the criminal standard [for causation] should remain higher [than the civil standard].” Post at 118. This argument is a non sequitur; the dissent fails to explain why the longstanding criminal standard for causation should be heightened simply because the civil standard has been lowered (by the replacement of the contributory negligence defense with comparative negligence). The relevant rules of criminal causation have been the same for more than a century, and the dissenting opinion has failed to point to any circumstances, actual or hypothetical, in which they would allow an unjust conviction. In sum, the dissenting opinion fails to provide a single reason to change these rules and thereby reverse the conviction in Tims._
[105]*105The dissenting opinion relies heavily on Commonwealth v Root, 403 Pa 571; 170 A2d 310 (1961), for the proposition that criminal causation rules must be amended because they are tied to tort notions of proximate cause that have been liberalized substantially. See post at 119-122. This premise is simply incorrect. As a matter of historical fact, the rules of causation in criminal cases are not tied to the rules of causation in civil cases. For that reason, among others,9 the rules of criminal causation have not changed a whit in the face of expanding civil liability. The relevant rules have been the same for at least a century. First, the defendant’s conduct must be a cause of the harm sine qua non. See, e.g., People v Barnes, supra. Second, the harm must be a foreseeable risk of the defendant’s conduct. See, e.g., People v Rockwell, 39 Mich 503 (1878) (the defendant hit the victim and left him lying in a field where a horse later trampled him to death; the conviction was reversed because the death was unforeseeable). In particular, the rule that the dissenting opinion would change — that foreseeable negligence by the victim is not a defense — seems to have been settled before 1930. See anno: Negligent homicide as affected by negligence or other misconduct of the decedent, 67 ALR 922 (collecting cases holding that a victim’s negligence is no defense to negligent homicide).
To the extent that Commonwealth v Root, supra, holds that a victim’s contributory negligence can be a defense, and this is the commentators’ read[106]*106ing of that case,10 it is no longer the law even in Pennsylvania. See, e.g., Commonwealth v Long, 425 Pa Super 170; 624 A2d 200 (1993) (holding that the victim’s intoxication was not a defense to homicide as long as the victim’s death is the natural and foreseeable consequence of the defendant’s actions). Even if other jurisdictions have "followed the Root rationale,” post at 121-122, the dissenting opinion does not point to any jurisdiction holding that a victim’s negligence can be a defense. As examples, the dissenting opinion cites decisions from New York and Maryland. Both states, however, follow the rule that the negligence of the victim is not a bar to criminal liability.11 See People v Cruciani, 36 NY2d 304, 306; 367 NYS2d 758; 327 NE2d 803 (1975); People v Joseph, 11 Misc 2d 219, 237; 172 NYS2d 463 (1958); Wilson v State, 74 Md App 204, 213; 536 A2d 1192 (1988).
Root has been criticized on other grounds as well. Regarding Root and Commonwealth v Redline, 391 Pa 486; 137 A2d 472 (1958), Professor LaFave explains that "to the extent that these cases rely wholly or in part upon the requirement of legal cause as a means of limiting these doctrines, they tend to distort the meaning of legal cause.” LaFave & Scott, Criminal Law (2d ed), § 3.12(h), p 298. _
[107]*107B
HARMLESS ERROR ANALYSIS
Despite the fact that a majority of this Court has rejected the only claim of error in Tims, it appears that a new trial will be ordered. The Court in Tims is equally dividéd because of harmless error analysis by the dissenting justices that is factually incorrect and contrary to the standard but recently endorsed by five members of this Court.12 Even though we do not agree with the dissent’s proposed rule for proximate causation, we note that the instructions, arguments, and verdict show that the jury in Tims made the finding necessary to satisfy that test. Consequently, the conviction should be reinstated even under the dissent’s test.
The dissent would hold that its standard of criminal causation is satisfied when the trier of fact finds that the defendant should have been able to avoid the accident. It would affirm the conviction in Kneip because the trial judge satisfied its requirement by virtue of making the following finding:
"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 approaches; where you have a pure accident. That’s not the case here.
[108]*108"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.” [Post at 127-128. Emphasis added.]
This same finding was also made by the trier of-fact in Tims. The question whether the defendant should have been able to avoid the victim was the primary focus of the trial. Counsel repeatedly argued that his client should not be convicted because he could not have avoided the accident.13 The jury was instructed that it must not convict the defendant if the accident was unavoidable:
Slight negligence is characterized by acts which are not naturally or inherently dangerous to life, which only an extremely careful person would have foreseen as likely to produce injury to another. The fact that an accident occurred is not in itself any evidence of negligence. Whatever is unavoidable by the exercise of due and reasonable care is not a crime. Slight negligence is not a crime. It is that degree or kind of negligence [109]*109which is below or less than ordinary negligence. In this case if you find that a defendant was negligent, but his negligence was only slight negligence, then you must return a verdict of not guilty. [Emphasis added.]
Anticipating this instruction, Mr. Tims’ attorney incorporated it into his argument.14 In addition, the jury was specifically instructed that it should consider the victim’s negligence, if any, in determining whether the defendant was the cause of the accident.15
The jurors’ decision to convict in the face of these instructions and arguments compels the conclusion that they rejected the defendant’s argument and found that the defendant could have avoided the victim with the exercise of reasonable care.16 Because of this finding, which is sufficient to satisfy the dissent’s "new” requirement, any technical imperfection in the instructions was not error:
Jury instructions are reviewed as a whole rather [110]*110than examined piecemeal to establish error. People v Watkins, 178 Mich App 439, 450; 444 NW2d 201 (1989), rev’d on other grounds 438 Mich 627; 475 NW2d 727 (1991). Even if somewhat imperfect, there is no error if the instructions fairly presented the issues to be tried and sufficiently protected the defendant’s rights. Id. [People v Vaughn, 447 Mich 217, 232; 524 NW2d 217 (1994) (opinion of Brickley, J.).]
The dissenters’ decision to reach opposite results in these cases that are apparently identical for purposes of the relevant inquiry is inconsistent with the most basic notions of justice.
v
For the foregoing reasons, we would reverse the decisions of the Court of Appeals in Kneip, and would reinstate the defendant’s conviction. In Tims, we would reverse the decision of the Court of Appeals and reinstate the defendant’s conviction.
Boyle and Riley, JJ., concurred with Mallett, J.
Weaver, J., concurred only in People v Kneip.