Death from fall from inflatable climbing wall results in Criminal Charges

I’m not sure what prompts prosecutors to charge people for what appear to be accident deaths of patrons. In this case a 24 year old woman was attending a festival, climbed on an inflatable climbing wall and fell off. She hit her head when she fell on the platform.

The company was charged with reckless and wanton negligence. The charges came after 2 years and a change in district attorneys. The family is suing the climbing wall operator with a trial started September 2, 2009.

I have lots of issues with all of this.

Reckless and wanton negligence is generally not a criminal act. Negligence is a breach of a duty to someone. A crime requires scienter, a criminal intent to do the crime to act in a criminal way. Negligence is not criminal by its definition. Granted there are crimes that do not require proof of a criminal intent, parking tickets being the best example.

Second, the issues reported, have their own criminal penalties if they occurred. The prosecutor states the company “failed to follow safety regulations. … had not been inspected as required, was poorly placed and lacked proper permits and that the operator was not properly trained or certified.” A violation of safety regulations either federal, OSHA, or state has specific penalties and in most cases administrative law procedures. You are cited and pay a fine. Failing to be inspected and not having the proper permits is similar, you are fined.

But I doubt there are safety regulations that would affect this situation. OSHA only covers employees and the state or county would have to enact regulations to cover inflatable climbing walls and I’ve not see any. Consequently this statement seems…incorrect?

However here again the prosecutor takes off in a different direction with proper placement and lack of training or certification. Proper placement from a criminal perspective occurs when you are dealing with a dangerous instrumentality. Dynamite, wild animals or guns are the examples given in legal textbooks. You are dealing with something that everyone knows will kill and has been identified as such by the community and therefore you have a requirement to handle with care or you can face criminal liability. A toy is not a dangerous instrumentality. It is not designed or known to kill if used incorrectly every time it is used.

Manslaughter is generally “homicide without malice aforethought.” Less than murder because the willful element is not present. Manslaughter lacks the intent to kill while manslaughter is an act that will result in death no matter what. A better way to look at the difference is murder you intend to kill someone, manslaughter you act in a way that someone was bound to die. Those are not the strict legal definitions but a general way of looking at the differences.

Here again the difference between a toy that someone dies using and a gun or dynamite is an easy way to see the difference. Using the Infinite Monkey’s theory (given an infinite amount of time an infinite amount of monkeys with an infinite amount of keyboards can type the works of Shakespeare), anything can kill. A gun on the other hand can kill every time.

However that is why we have this entire separate legal system in the US. As I’ve commented on several times in the past, we have a civil system that controls society as well as a criminal system. If you act improperly the civil system is put into place; you are sued. If you act improperly with criminal intent, the criminal system is used. In other countries the government controls more of society. It does not require the high level of intent before the government steps in and civil suits are rare and difficult.

“…properly trained or certified” is another statement solely used to inflame the possible jury pool. The training would be determined by the manufacture of the inflatable wall and the certification does not exist. If you need to be certified, stand on one foot, pat your head and jump around in a circle three times saying Jim Moss is the greatest and you are certified. If you send me $20.00 I’ll send you proof of the certification. For $25 I’ll let you tell me what you have been certified to do and for $30 I’ll let you recertify people in the program.

Don’t get me wrong, I’m not saying the actions of the company are blameless. Nor am I trying in any way to discount the pain and grief this family feels. However the blurring of the lines between civil and criminal is an issue that is growing in the US.

This brings up a lot of unanswered questions. What is the relationship between the prosecutor and the family’s attorney? Criminal charges three weeks before a civil trial starts, is extremely suspect. Why when one prosecutor did not charge has the second prosecutor decided to charge the family? Finally is the prosecutor running for re-election of suffering a public relations issue? I can’t believe there is anything but a PR campaign here.

The article is: Danvers firm faces criminal charge