When Criminal and Tort Law Incentives Run into Tight Budgets and Regulatory Discretion

• Author: William G. Childs
• Position: Assistant Professor of Law, Western New England College School of Law
• Pages: 581-599

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Eight-year-old Greyson Yoe was electrocuted while waiting to get on the "Scooters" bumper car ride at the Lake County Fair in northeastern Ohio. The failure to ground the ride structure and damage to a light fixture on the ride caused his death. The day before the electrocution, two inspectors from the Ohio Department of Agriculture (ODA) inspected the ride and passed it as "safe to operate." That inspection was superficial and grossly inadequate, and the completed inspection form had serious misrepresentations. Indeed, the inspectors later admitted that they never reviewed the key electrical items that they checked off on the inspection form. The post-electrocution review not only showed that the electrical system had gross safety problems but also that the ride's management and operators knew of and ignored these problems.

This Article is not about the electrocution; it is not about the botched inspection; nor is it about the ignored problems. The lay press covered those well. Instead, this Article is about the response of the responsible authority, the ODA, to the civil and criminal actions brought or promised against it and its employees. The ODA appears to have chosen to protect itself and its employees by getting out of the business of protecting the public from similar electrical hazards. Such actions, under a prominent theory regarding the foundations of tort and criminal law, are predictable and unsurprising. Further, the ODA's acts should call into question certain assumptions about the incentives created by criminal and tort law.

Traditional tort and criminal law jurisprudence assume that the potential for, and reality of, civil or criminal liability changes behavior.¹ InPage 582 particular, many scholars contend that liability makes the injuries or harms caused by a violation of tort or criminal law standards less likely to occur in the future by way of what is sometimes called "specific deterrence" in the case of the individual defendant or "general deterrence" in the case of others.²

This Article explores one instance of what may be a broader problem for such deterrence theory: a defendant who controls the standards by which it is judged, in an age of tight budgets and financial pressures, where government is expected to operate "like a business." In that scenario, incentives can combine to make the situation post-litigation more dangerous rather than less dangerous.

This Article has four parts. First, I describe the particular factual scenario involving the electrocution of Greyson Yoe. I briefly explore the actions and omissions that led to his electrocution, and then turn to the criminal and civil litigation that followed. I also describe in detail the response of regulators to that litigation-a response that surprised many observers. In the second part, I discuss what response would ordinarily be expected from that sort of criminal and civil litigation. In the third part, I compare the expected response to what ensued and explore three interrelated reasons why the regulators may have reacted the way that they did, and why such a reaction, in retrospect, is unsurprising. In the final part, I discuss how those reasons might affect similar situations in the future and I offer some potential solutions. I also discuss why this problem-involving public actors-is particularly troubling as compared to some otherwise similar situations involving private actors.

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I The Electrocution of Greyson Yoe, the Litigation that Followed, and the Response

On August 13, 2003, eight-year-old Greyson Yoe, a healthy young boy, went with his father to the Lake County Fair in northeastern Ohio.³ He asked to ride the bumper cars, known as the "Scooters."⁴ While standing in line, watching other riders, he leaned on the ride's metal railing and suffered a severe electrical shock.⁵ His feet were on the ground and his body acted as a path for the electrical current to the ground. He cried out, "Help me," and collapsed.⁶ He was immediately given CPR⁷ but died after several weeks in intensive care.⁸

Yoe's death, which resulted directly from a combination of a failure to ground the ride's structure⁹ and an electrical fault caused by a damaged light fixture,¹⁰ should not have surprised any of a number of people:

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* The fair board did not obtain an electrical permit for connecting the ride to a utility pole; had such a permit been obtained, a licensed electrician would have inspected the hook-up and likely observed and corrected the lack of grounding and other electrical problems.¹¹

* The electrician who connected the ride (an eighty-year-old former lineman for an Ohio electrical company)¹² left the ride's grounding wire dangling at the pole, unattached.¹³ He made no effort to confirm that the ride was otherwise grounded, stating that he assumed it had a grounding rod elsewhere.¹⁴

* The ride owner knew about the damaged light fixture¹⁵ but made no effort to repair it and failed to inform ride inspectors of the loose wire in the fixture.¹⁶

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* Ride operators and their supervisors ignored or belittled the complaints of patrons who reported feeling shocks both earlier during the 2003 fair and the year prior.¹⁷

* Ride operators and their supervisors also apparently disregarded the ride's electrical system's regular failures throughout the 2003 fair. Instead, among other things, fuses were bypassed with aluminum foil, and ride operators would simply reset circuit breakers and continue operation.¹⁸

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In sum, the ride was in a shambles, with problems far beyond the specific electrical issues that led to the electrocution.¹⁹

Most interesting, the ride had been inspected the day prior to the accident.²⁰ The inspectors, who were ODA employees, specifically indicated on the inspection form (reproduced in part below) that the electrical system, including grounding, was "satisfactory"; in fact, the ride structure was not grounded, and the inspectors had made no effort to evaluate its grounding, nor, it appears, any aspect of the electrical equipment:²¹

As suggested above, there is plenty of blame to go around in connection with the death of Greyson Yoe, and much has already been allocated. The electrician and the ride owner were prosecuted criminally.²² The electrician was found guilty of reckless homicide and involuntary manslaughter in a jury trial²³ and the ride owner pled guilty to attemptedPage 587 involuntary manslaughter.²⁴ The inspectors, too, were prosecuted, and ultimately pled no contest to a lesser charge of dereliction of duty, having been charged with various forms of homicide.²⁵

Civilly, Greyson's parents sued the county fair's board and the owner of the ride (which together settled for a total of nearly $2 million), and have publicly said that they will pursue suits against the state and the inspectors.²⁶ As of this writing, those civil suits have not been filed.

That leaves, of course, the ODA itself. In a move that surprised many and attracted the attention of editorial writers, after the prosecutions were completed, the ODA removed the grounding section from the inspection form entirely.²⁷ At the same time, the ODA added a notice to ride owners reminding them that the ride owner is responsible for abiding by all relevant codes, standards, and rules, including those relating to electrical grounding.²⁸

With ODA's decision to remove the grounding section from the form, Ohio ride inspectors will continue to inspect the rides, but will have no obligation to determine whether the rides are grounded.²⁹ That obligationPage 588 is left in the hands of the ride owners,³⁰ most of whom are presumably conscientious, but some of whom may be like the ride owner here, who readily admitted that he ignored a damaged light fixture, which resulted in a live wire contacting the ride's metal frame.³¹

II What Response Should We Have Expected?

Traditional notions of tort and criminal law suggest that the criminal prosecutions and civil suits in this case should have had a different result- tighter rather than looser regulations, or at least better enforcement of the regulations that existed. An intuitive response to punishment for particular conduct-or, in the civil tort context, to the requirements to reimburse another party for damages caused-is to help ensure that such conduct does not occur in the future, either by others ("general deterrence") or by this particular wrongdoer or tortfeasor ("specific deterrence").³² In the context of the Yoe case, we would expect the ODA to take action to ensure that its inspectors did in fact check rides' grounding and that its inspectors had the appropriate training and equipment to do so.

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General deterrence underlies a dominant view of the purposes of tort law, based on and growing out of the extensive "law-and-economics" scholarship.³³ While certainly not the exclusive rationale, an important assumption of many participants in and observers of tort law is the fundamentally economic idea that potential liability affects conduct, specifically because individuals will avoid economically inefficient conduct.³⁴ In short, we avoid conduct that will cost us money. Although such incentives are typically classified as "general deterrence," surely the specific deterrence constitutes a subset of the general-especially for repeat players. A car manufacturer who is found liable in tort for compensatory damages for a specific design decision will (at least in theory) have its future decisions affected.

Beyond compensatory damages, punitive damages are frequently considered to have a specific deterrence component.³⁵ Thus, punitive damages are appropriate because, in large part, they will deter not just others from acting...