When Criminal and Tort Law Incentives Run into Tight Budgets and Regulatory Discretion
19 Pages Posted: 13 Dec 2011 Last revised: 28 Dec 2011
Date Written: 2006
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 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. In 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.
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.
Keywords: criminal law, tort law, administrative law, Greyson Yoe
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