An important precedent could determine the criminal liability of manufacturers in the United States.

 

THE IMPORTANCE OF PRECEDENTS IN THE UNITED STATES CRIMINAL SYSTEM
by Enrico Fabbri

 

This article begins by describing a terrible accident that occurred on 7 August 2016 in the state of Kansas (United States). A 10-year-old boy was coming down a 50 metre high water slide at quite high speed. He was aboard a raft with 2 other passengers. On the second upward section, he was thrown out, fell and was decapitated.

It should be noted that the attraction required a minimum height of 137cm, and that the operator had to read the passengers 2 pages of safety warnings before starting. The attraction was inaugurated in 2014, later than scheduled due to some difficulties in resolving design problems. No such attraction had ever been built before. The accident was certainly terrible, however the real reason I’m writing about it now is to explain the legal consequences that have emerged in the last few weeks. What I am writing could become important for many Italian and European manufacturers.

When a fatal accident occurs in the United States, both the manufacturer and the operator are usually investigated, with a lengthy and costly civil lawsuit that exposes the parties’ civil liability. The parties usually have insurance, and 99% of civil cases are typically settled before going to court. There has never been a criminal case brought against a manufacturer or operator in the United States.

In Europe, laws are different. If a fatal accident occurs, a civil suit is initiated to determine the payment of damages, and a criminal case is brought to determine a potential conviction against the parties. In simple terms, in Europe a fatal ride accident is essentially equivalent to a traffic accident, and therefore in the absence of any particular acts of negligence, the parties in question will not be sentenced to prison.

The news from the USA however is that last week the owner of the water park, the operator and the slide designer in question were officially indicted for second-degree murder. The designer was arrested on his return from a trip to China. We do not have enough documentation to offer a technical opinion, but we can imagine that there must have been significant elements of negligence as the basis for this decision.

The first consequence of this fact is linked to the United States legal system, which is not based on a written civil code, but rather on precedents. This means that in the case of other accidents that may occur in the future, those responsible, be they manufacturers, designers or operators, could be more easily criminally charged on the basis of this precedent. The second consequence is perhaps even more important, at least for the accused. Unlike in Europe, in the United States there is no minimum or maximum custodial sentence for second-degree murder (involuntary manslaughter in Europe). Therefore, depending on the jury’s decision, the accused could theoretically be sentenced to life imprisonment.

We have got an initial impression on this case from an important liability lawyer in the United States, Frank Ciano from Gerber Ciano Kelly Brady LLP (email: fciano@gerberciano.com): “The designers of a water slide are being charged criminally over the death of a patron, which occurred at a water park in Kansas. The possibility for criminal sanctions against those responsible for the design of a product has always been possible in Europe. However, I have never heard of this before in connection with a products liability case in the US. Unless there was some outrageous act, individuals performing duties on behalf of a corporation are normally protected by the corporate structure. This may be the start of a new trend.” Manufacturers who export to the United States are strongly recommended to contact an experienced lawyer, to fully assess the extent of this important precedent.

 

 

 

Written by Mr. Enrico Fabbri enrico@fabbrirides.com
Article originally published in Games Industry (Italy) magazine
Original date: April 2018

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