by Rich Devlin
On the morning of November 25, 2009, a popular bartender was found lying unconscious in the snow in a trailer park in Winter Park, Colorado. The 42 year old, Kevin Gilbert, was pronounced dead shortly thereafter in a local hospital. The preliminary autopsy report listed the cause of death as hypothermia. The report also noted facial injuries.
The police properly and thoroughly investigated Gilbert’s death. The investigation showed that Gilbert, and his 24 year old friend, Beau Grega, had done a lot of drinking that night and both were quite intoxicated. After leaving a local bar, they walked to Graga’s home (which was an old bus) but were unable to start a fire to keep warm so they headed to another friend’s trailer. Witnesses in nearby trailers report hearing loud and incoherent voices around 2AM. A trailer resident told police he believed Grega physically tried to help Gilbert into a trailer and then heard a loud noise like someone falling into the deck railing.
When the sun rose, Gilbert was dead and Grega was “slow to remember details.”
After the investigation, Grega was arrested and charged with criminally negligent homicide—an unintentional killing caused by the defendant’s gross deviation from the standard of reasonable care.
Criminally negligent homicide is when someone kills their children by leaving them seat-belted and locked in a car in the blazing sun. It’s also when someone shoots and leaves the victim without medical care. In such cases, the defendants may not have intended the victims to die, but they did die because the defendants’ acts so deviated from an acceptable standard of care.
In this case, Grega didn’t cause Gilbert’s death, Gilbert’s own acts did. Gilbert voluntarily drank beyond his ability to come in out of the snow. That Grega somehow managed to find shelter doesn’t mean that he is responsible for his friend’s failure to survive.
Grega will live forever with the horror that he might have been able to prevent his friend’s death. Putting him in jail for years would compound the tragedy. More broadly, are we all now subject to arrest for failing to save our friends and neighbors from their own poor choices?
Rich Devlin is a practicing attorney and Winter Park resident.
