What is in a Business Name: A Robbery if you are Black Diamond
Posted: September 24, 2009 Filed under: Climbing, Criminal Liability Leave a commentThis if funny, but at the same time scary. KSL TV is reporting in Robber apparently confused over loot at ‘Black Diamond’ company that a man attempted to rob Black Diamond Equipment Company of their precious jewels. Although many of us believe that Black Diamond skis, carabiners and other climbing and mountaineering equipment are precious and sometimes as expensive (J) I don’t think there is a big black market for those stolen jewels that a stupid thief could find.
If you see a Polynesian man in his 20s or 30s about 6 feet 3 inches tall with a medium build and a shaved head with a full-sleeve tattoo on his right arm wearing a large, distinctive square-faced watch on his left wrist driving a white 1990s Ford Escape-type SUV and selling climbing equipment it might be stolen.
Stupid crook!
Death from fall from inflatable climbing wall results in Criminal Charges
Posted: September 15, 2009 Filed under: Climbing Wall, Criminal Liability Leave a commentI’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
Two people charged with crime in fatal rafting accident.
Posted: August 4, 2009 Filed under: Criminal Liability, Whitewater Rafting Leave a comment
The North Central Illinois News Tribune is reporting that two people were charged with operating a boat under the influence of alcohol. They were on the Vermilion River when their raft went over a low head dam. A third passenger in boat drowned.
They part of a group of seven people in two rafts. The first raft made it down a boat shoot on the right hand side.
The charges are a Class A Misdemeanor offense with a penalty of a $2500 fine or up to one year in jail.
See Two charged in wake of fatal rafting accident and Ex-St. Charles woman charged in fatal rafting accident.
Give me a break! Teen charged $25K for a rescue he did not need
Posted: August 3, 2009 Filed under: Criminal Liability, Search and Rescue (SAR) 7 Comments
A Facebook page started to round up money, but we would be better off paying an attorney to fight it for him
Here is the story. A 17 year old Eagle Scout went hiking in the White Mountains of new hampshire last April. He sprained an ankle, tried a different route out, it failed and he spent 3 days backtracking. In the mean time a Search and Rescue (SAR) was called. Volunteers and state employees were called to search for the youth. He was found, hiking, OK and not needing a rescue. When found by SAR he was described as on his way home.
Three months later the state of new hampshire sent him a bill for his non-rescue for $25,000. They are saying that he was negligent.
Fish and Game Maj. Tim Acerno said the decision to fine Mason came from what was deemed as the teen’s negligence for continuing a hike with an injury — a sprained ankle — and veering off a trial to what Mason recalled was a shortcut. Only the shortcut was cut short by a stream swollen from melting snow and snow still on the ground in April. See Teen walloped with NH rescue fine
In new hampshire it is negligent to hike with a sprained ankle! Or is it negligent to try and take a shortcut when you sprain an ankle.
The state is forcing people to decide whether going outdoors is worth it. Is the value of my life without the outdoors worth risking everything I have gained indoors?
But as cynical as I sound, if you are a professional or volunteer, if you are part of a SAR unit and you work in the US this can have a disastrous effect on your business or volunteer work.
If the state can prove someone is negligent for hiking on a sprained ankle when he tried to take a shortcut, how easy will it be to use that case law and prove you were negligent as a guide for not getting your client back when you predicted. For not getting your client home 100% safe.
What about SAR missions. If the state can prove negligence in this case, it will be easy to prove negligence for failing to find or failing to adequately rescue.
This could have serious domino effect.
Here is the new hampshire statute
206:26-bb Search and Rescue Response Expenses; Recovery.
I. Notwithstanding RSA 153-A:24, any person determined by the department to have acted negligently in requiring a search and rescue response by the department shall be liable to the department for the reasonable cost of the department’s expenses for such search and rescue response. The executive director shall bill the responsible person for such costs. Payment shall be made to the department within 30 days after the receipt of the bill, or by some other date determined by the executive director. If any person shall fail or refuse to pay the costs by the required date, the department may pursue payment by legal action, or by settlement or compromise, and the responsible person shall be liable for interest from the date that the bill is due and for legal fees and costs incurred by the department in obtaining and enforcing judgment under this paragraph. All amounts recovered, less the costs of collection and any percentage due pursuant to RSA 7:15-a, IV(b), shall be paid into the fish and game search and rescue fund established in RSA 206:42.
II. f any person fails to make payment under paragraph I, the executive director of the fish and game department may:
(a) Order any license, permit, or tag issued by the fish and game department to be suspended or revoked, after due hearing.
(b) Notify the commissioner of the department of health and human services of such nonpayment. The nonpayment shall constitute cause for revocation of any license or certification issued by the commissioner pursuant to RSA 126-A:20 and RSA 151:7.
(c) Notify the director of motor vehicles of such nonpayment and request suspension of the person’s driver’s license pursuant to RSA 263:56.
Emphasizes Added
No jury, no court no judicial authority makes the determination as to whether or not there was real negligence. Under most state laws, no “department” can determine if someone is negligent. That is left solely within the power of the trier of fact, a jury usually.
Duh Joe, what’s the budge look like this week? Really a little short, well let’s bill somebody. Let’s see I helped a little old lady across the street, she looked lost to me, I think she’s good for $50 K!
I hear politician’s everyday say at what point do US citizens take responsibility for their own actions. Well here is the perfect case and the state says you can’t be responsible. A well trained individual got in trouble and got himself out of trouble. Now the state wants money from him?
Another article quotes the state as saying
Scott Mason had been praised for utilizing his Eagle Scout skills — sleeping in the crevice of a boulder and jump-starting fires with hand sanitizer gel. But authorities say he wasn’t prepared for the conditions he encountered and shouldn’t have set out on such an ambitious hike.
“Yes, he’d been out there in July when you could step across the brooks. And people have been out there in winter in hard-packed snow. But with these spring conditions, it was soft snow, it was deep snow,” said Fish and Game Maj. Tim Acerno.
Mason was negligent in continuing up the mountain with an injury and veering off the marked path, Acerno said. Negligence, he said, is based on judging what a reasonable person would do in the same situation.
Emphasizes Added
See: Teen fined $25,000 for cost of NH mountain rescue.
So now hiking is OK, but only when it is summertime. It was snowing in the Colorado mountains last week, should we have closed the mountains? The makers of snowshoes, avalanche beacons, back country ski gear and cold weather gear are going to be disappointed when they find out you can’t use their gear outdoors anymore.
A reasonable person would have lay down and died, or spent hours watching a cell phone battery die. This kid got himself out of the jam and was walking home!
The young man has until August 9th to pay the bill or to go to supposedly court to contest the fine. I don’t see anywhere in the statute where he has an option of going to court. But he should and we should help. For more information on helping Scott Mason please read to the end.
Negligent Hiking?
I am stumped on how the state can create a law about negligent hiking. 25 years practicing law, 20 years specializing in outdoor recreation and I’ve never heard of or even thought of the idea of negligent hiking, negligent self rescue. More importantly what constitutes negligence when going for a hike? Negligence is composed of four steps all of which must be met. There must be a:
- duty,
- a breach of that duty,
- an injury, and
- damages proximately caused by the breach of the duty.
What is the basic duty that was breached? Does a hiker owe the state a duty not to get hurt or lost? (Consequently doesn’t the state owe the hiker a risk free trail and signs so the hiker does not get hurt or lost? like in any downtown city in the US?). Where is the duty owed and to whom? Citizens only owe the state a duty if the state by law has said there is a duty. The best example is to pay taxes. Not to walk the way the state wants you to walk or to behave in the woods the way the state wants you to behave.
If we don’t get involved to fight this law several major things are going to happen.
SARs are going to get messier. Instead of calling when things are bad, people, in fear of a $25K or higher bill will wait till it is too late. A fine is not going to stop people from going hiking or doing stupid things. If that was the case, our jails would be empty and our taxes would be higher. (No speeding tickets a city has no income.) new hampshire is going to fine everyone they believe will give them some money.
The capstone for this is the family of the rescued young man sent $1000.00 to the search and rescue group for helping to find Scott.
If you would like to contribute to the Rescue Scott Mason Fund send a check to:
Scott Mason Contribution Fund
Mutual Bank
336 Plymouth Street
Halifax, MA 02338
What else can you do?
- Avoid New Hampshire. Sure states need money now, but they should not put the lion’s share on the back of those of us who enjoy the outdoors. More so the state should not place people in a position where they measure the value of their life in the outdoors against their life without the outdoors. If we stay away from New Hampshire because of these risks, the state may catch on.
-
Contact the governor of new hampshire and let him know what you think and that charging a young man for not being rescued is ridiculous
Office of the Governor
State House
25 Capitol Street
Concord, NH 03301(603)271-2121
(603)271-7680 (fax)
Click here to access the governor’s email account.
Tell the governor to cancel the rescue fee and to change the law or you will boycott the state.
- Send money, but encourage the family to use the money to fight the case. I believe it will be impossible for a jury to decide that Scott Mason was negligent.
- Contact the new hampshire fish and wildlife division and let them know what you think. The website to contact them is http://www.google.com/url?q=http://www.wildlife.state.nh.us/Inside_FandG/contact_fish_and_game.htm&ei=XyF2SsDuKonatgO1ueHGCA&sa=X&oi=smap&resnum=1&ct=result&cd=6&usg=AFQjCNGpxWsnyGqilZ3FFnUWqKRxKFv3tg. However I’ve never got it to open, it keeps crashing. J Maybe they are getting a lot of traffic over this?
For more discussions about charging for Search & Rescue see Search & Rescue and charging for it and Vermont getting serious about charging for Search and Rescue. For a great post on the right to do we want to do in the wilderness see Jon Heshka and the Right of the Individual to Die Doing What We Love.
To see a facebook Page about the issue see: Rescue Scott Mason AGAIN.
Permit Outlaw? We just call them pirates, sentenced to jail
Posted: June 16, 2009 Filed under: Criminal Liability | Tags: California, National park, National Park Service, NPS, Parks, Travel and Tourism, Washington DC Leave a commentThe morning report for the National Park Service on April 10, 2009 reported a man was given jail time and probation for threatening an NPS ranger. The man was originally in trouble for camping in National Parks without the necessary paperwork.
See “Permit Outlaw” Sentenced For Threatening Ranger. I’ve never heard of the term Permit Outlaw, we just always called people who don’t have permits pirates. However this is an example of how a minor problem escalates when you lose your temper.
Well in New Zealand…….you go to JAIL!
Posted: January 7, 2009 Filed under: Criminal Liability, Ski Area 1 Comment
Another example of the differences between the US Legal system and those of other countries is the response if someone who is injured or killed while recreating. Unless there is very clear criminal liability, and I have never seen that in the US, US recreation providers do not have to worry about jail time. In a few cases I have seen minor fines for infractions that rarely had anything to do with the injury or fatality.
However that is not the case, in Europe or the rest of the world, were the government takes a bigger role in the operation of business and any injury. In this case this article speaks to a young woman who died river boarding while on a vacation. See Travel company charged after Worcestershire woman’s holiday death.
The company that organized the activity is facing criminal charges for the death of one of their guests. The company is facing three criminal charges with a maximum fine for each charge of $250,000 NZ. The charges were brought after an investigation by the government. Another rare issue in the US, unless someone complains or the activity is done under a Federal or State Land Managers permit.
Of note is a statement made by the father of the deceased, after visiting the place where his daughter died. He “described the experience of visiting the place where she died as “harrowing.””
If you do not understand the difference between civil liability and criminal liability, and there are solid examples of this in the comments, they are very different. See Vail found not liable for negligent hiring or actions of a ski instructor, Same facts difference between civil and criminal cases, same reason for using the courts, Another Litigation versus Criminal example or Litigation v. Jail Time. For an example of not understanding the difference see the comments after Youth and Adult Molesters.
Two Headlines caught my eye – Environmental & Wildlife Protected.
Posted: December 20, 2008 Filed under: Criminal Liability Leave a comment
KRDO TV of Colorado Springs is reporting that a hunting guide from Utah was caught illegally guiding clients in Colorado. He was sentenced to one year in prison and three years of probation. See Utah Guide Gets Prison Time for Poaching in Colorado
The EPA has also released a most wanted list of polluters. The page lists 23 people who have been charged with environmental crimes that the EPA wants caught. See EPA Fugitives.
Pretty neat.
Losing control of a campfire at US Forest Service Campsite Expensive
Posted: December 9, 2008 Filed under: Criminal Liability Leave a comment
A 64 year old man from Washington D.C has been indicted for allowing a campfire to get out of control and start the largest fire in the last 80 years of Minnesota’s history. The defendant was camping in the Ham Lake Campground in Superior National Forest just outside of the Boundary Waters Canoe Area. The fire burned 75000 acres costing $11 million to battle and destroyed 150 buildings.
The defendant is charged with one count of setting timber afire, one count of leaving a fire unattended and unextinguished and one count of giving false information to a USFS officer. The charge of setting timber afire is a felony with a possible 5 year jail term. The remaining counts are misdemeanors.
See Camper indicted 18 months after most expensive, destructive Minnesota fire in 80 years
Vail found not liable for negligent hiring or actions of a ski instructor
Posted: November 15, 2008 Filed under: Criminal Liability, Ski Area Leave a commentVail won a trial this past summer brought by the family of a client for negligent hiring. The basis of the claim was an employee of Vail, a ski instructor, took a 17 year old client back to his apartment and allegedly raped her. The ski instructor was found not guilty of rape in a criminal trial but was found guilty of contributing to the delinquency of a minor.
The instructor has an extensive DUI and misdemeanor record. However nothing indicated in his background a propensity for anything other than drinking and recreational drug use. The instructor had an impeccable work record as ski instructor.
For understanding the difference between a criminal act and a civil act see Same facts difference between civil and criminal cases, same reason for using the courts or Another Litigation versus Criminal example
This case, based on the reports helps explain the differences between a criminal act, which is solely the responsibility of the individual and a civil liability which can hold anyone liable for their acts if they are negligent.
At the same time, if you were basing your lawsuit on who caused the injury, wouldn’t you sue the ski instructor? You could transfer that anger to the employer, Vail, or you could sue the company because they have more money. Either way, holding Vail liable for the actions of any employee off work seems a little stress. Granted the ski instructor met the 17 year old client while on the job, but…..
Same facts difference between civil and criminal cases, same reason for using the courts.
Posted: September 18, 2008 Filed under: Criminal Liability, Ski Area Leave a comment
Vail won a jury verdict in a civil suit for the alleged rape of a Vail customer by a Vail employee. See Vail Resorts wins ski instructor lawsuit. The Vail employee had been found not guilty in a criminal trial earlier, but had been convicted of Contributing to the Delinquency of a minor. See Former ski instructor gets 90 days in jail.
It is not necessary to get into the facts of the case to discuss the legal issues here. The ski instructor was charged with a criminal act. Vail was charged with a civil negligence claim.
The burden of proof, what the prosecutor has to prove, in a criminal trial is the ski instructor did the act Beyond a Reasonable Doubt. The plaintiff in their civil suit against Vail must prove their case by a Preponderance of the Evidence. These are two of the hardest concepts to understand in the law.
In the US we base our system on the idea that personal freedom, not doing jail time, is the most important issue. Subsequently we have a very high burden to prove that someone should go to jail, Beyond a Reasonable Doubt. Any doubt at all and the alleged defendant are free, not guilty. This is very different from Europe. See Litigation v. Jail Time.
The burden to prove a civil suit is much lower, a Preponderance of the Evidence. A much lower level of proof needed to prove that someone has done a civil wrong.
There is a relationship between a criminal trial and a civil lawsuit based on the same facts. But the actual claims in both cases are very different.
In the criminal case the prosecutor must prove the alleged defendant did the act: had sexual relations with a person under the age of 18. In the civil case the argument was that Vail negligently hired the ski instructor. By not doing a background check Vail had allowed, negligently to hire someone they should not have hired.
Even though the cases stem from the same set of facts, the civil and criminal litigation are very different, very different issues to prove and very different results.
But the reasoning, the reason for both cases seems to be anger, revenge, and punishment.
See: Vail Resorts wins ski instructor lawsuit
Ski Resort Employee convicted of theft for staging a worker’s compensation accident.
Posted: August 12, 2008 Filed under: Criminal Liability, Ski Area 1 CommentAn employee of a ski resort has been convicted of grand theft. The employee tried to stage an accident to collect from the resorts worker’s compensation insurance. The employee talking with another employee realized a 4′ to 5′ deep hole had been dug to test drainage on the resort. After work, Nicholas Jason Beaver jumped repeatedly on the snow bridge covering the hole until he fell through and into the hole. Beaver was angry because he had been told he was not going to be hired back the next ski season. Two friends witnessed the incident.
While falling into the hole Mr. Beaver actually hurt his knee which required extensive medical care and arthroscopic surgery.
The fraud was uncovered after Beaver and his attorney turned down a $110,000 offer to settle the claim. A friend who knew of the fraud felt Beaver was cheating the resort and turned him in.
See Staged accident at ski resort leads to theft conviction and Resort employee convicted of grand theft for faking fall.
Sentencing is scheduled for August 22, 2008. The resort claims the medical care and legal fees are in excess of $65,000 and are asking for that in restitution from Beaver.
Litigation v. Jail Time
Posted: July 9, 2008 Filed under: Criminal Liability | Tags: Aviation, Concorde, Continental, Continental Airlines, France, United Airlines Leave a commentMany times I hear the argument that we need to adopt the European legal system. The belief is that the Europeans don’t sue, make it very hard to sue and that is a better system for defendants. That is correct; however the European system also has a little twist we don’t have in the US: Jail Time.
In Europe the requirements to start a lawsuit are very high and the types of things you can sue over are limited. However the requirements to be arrested and charged with a crime are low, are much broader and the level of proof to convict someone are much lower. Example of this is playing out in the US and France this week.
On July 25, 2000 a Concorde jet crashed in France killing all on board. On July 3, 2008 Continental Airlines and two Continental employees were charged in a French court with manslaughter. The crash was attributed to a piece of a Continental jet falling off as the jet was taking off. That piece of metal was run over by the Concorde jet causing a tire to blow out and the parts going into the engine causing the crash.
Here in the US, Continental might be sued for this type of thing. Maybe money would be exchanged, maybe. No crime would be charged because there was no scienter or “criminal mind.” No one was attempting or thinking about a crime, there was no criminal intent.
That is not required in Europe or France, where by the way you are guilty until proven innocent to some extent.
In most European countries there is a very different way of approaching problems. There the government is in charge of making the public safe. In realty, in our “Laissez-faire” business environment most businesses are kept in line by the threat of litigation. In Europe businesses are kept in line by the government who puts you in jail if you are not doing a good job, if you fall out of line.
For information on the charges against continental airlines see: Airline to be tried for Concorde crash and French court to try US airline over Concorde crash.
Laissez-faire by the way is a French term.
Recreation Law 