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David Lowe
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Criminal Charges Unlikely in Amusement Ride Accident

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Last weekend I wrote about an amusement ride accident in which a 16 year old girl from Menasha, Wisconsin died when she fell more than 40 feet from a ride called Air Glory while attending a Christian music festival in Oshkosh, Wisconsin.

The Wisconsin Journal Sentinel website reports this afternoon that the local district attorney is saying that criminal charges against the amusement ride operator are unlikely, based on the preliminary results of an investigation being conducted by the Wisconsin Department of Commerce, which has jurisdiction over amusement ride accidents. Winnebago District Attorney Christian Gossett commented that: “Criminal negligence is an entirely different animal than simple negligence.”

Inspectors are focusing on the ride’s crane structure and the safety harness, according to an internal department e-mail forwarded to the Appleton Post Crescent pursuant to an open records law request.

Criminal charges are unlikely in this scenario because of the requirement that the accused have an awareness of the likelihood of danger to the victim. Under Wisconsin Statute section 939.25, “criminal negligence” means “ordinary negligence to a high degree, consisting of conduct that the actor should realize creates substantial and unreasonable risk of death of great bodily harm to another.” This requires something less than wilful and wanton conduct which, under Wisconsin law, is the virtual equivalent of intentional wrong. See, State v. Schaefer, 266 Wis.2d 719, 668 N.W.2d 760 (Wis.App.,2003).

The surviving family will likely have remedies under state tort law, where the standard is ordinary negligence. This lower standard requires proof that the defendant failed to exercise “reasonable care”, often defined as the degree of care that the average person would exercise under the same or similar circumstances. And if the amusement ride operator is considered a “common carrier”, which provides transportation for hire (a possible characterization of what the operator of this ride does), the standard is the “highest degree of care that can be reasonably exercised by persons of vigilance and foresight when acting under the same or similar circumstances, taking into consideration the type of transportation used and the practical operation of its business as a common carrier.”

Regardless of whether criminal charges or a civil case is brought, this tragic event should hopefully cause the authorities to look carefully at the safety of these amusement rides.

For more information on this subject, please refer to our section on Wrongful Death.