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A Tragic Mistake Is Not Necessarily A Crime

National Transporation Safety Board investigators at the scene of the Florida International University bridge collapse
Investigators at the scene of the Florida International University bridge collapse, March 16, 2018.
Photo by Chris O’Neil, courtesy the National Transporation Safety Board.

Even when accidents lead to horrible consequences, the people who commit them are not necessarily criminals. Someone should alert the staff of the Miami Herald.

The headline of a recent article read “Why Florida law may shield companies behind deadly FIU bridge from criminal charges,” which effectively set the tone of the coverage. The story concerned the catastrophic failure of the Florida International University bridge in March. Six people died in the collapse, and the National Transportation Safety Board has yet to release its conclusions about why the bridge failed. In addition, the Miami-Dade police homicide bureau is investigating the incident.

There is still a lot we don’t know about the series of events leading up to the bridge collapse. At this point, we do know that an unidentified person took a series of pictures two days prior to the collapse, four of which the National Transportation Safety Board released last week. We also are told that no one at the Florida Department of Transportation saw the images before the disaster. The Herald has sued for the release of records related to a FDOT meeting the morning of the collapse, which may or may not clarify what happened; the department says it does not have the right to share the requested records as long as the NTSB investigation continues.

The project’s chief engineer reportedly told the FDOT in a voice message that, while repairs were needed, there was no issue “from a safety perspective.” Independent engineering experts have since weighed in and expressed the opinion that ignoring the cracks was a serious mistake. But to answer the Herald’s rhetorical question (“Could it also have been a crime?”): possibly, but not likely.

Miami-Dade State Attorney Katherine Fernandez Rundle drew criticism for saying that criminal charges were “improbable” the day after the bridge collapsed. She later clarified that the evidence would dictate whether criminal charges were warranted, but that cases involving construction accidents seldom play out that way.

The Herald article posited that building a criminal case, such as manslaughter, is especially difficult “because of how favorably Florida law treats contractors after construction accidents.” Prosecutors rarely bring cases connected to construction accidents in South Florida, and when they do bring such cases, they often fail to secure convictions. It goes unspoken, but understood, that this is outrageous in the paper’s view. But I suspect the Herald’s staff might feel differently with some simple reframing.

Would the Miami Herald be so eager to see criminal charges brought a libel case, for instance? Should someone have gone to jail over Gawker’s decision to exploit images of Terry Bollea (better known by his stage name, Hulk Hogan)? The ensuing civil lawsuit effectively ended the online publisher, and as I wrote at the time, rightfully so. But I doubt that anyone who works at a newspaper would be eager for prosecutors to push for harsher penalties. While there is no federal criminal defamation law, several states still have criminal defamation statues on the books. Such a situation, while unlikely, is not impossible.

As the Herald itself observed, criminal convictions in construction accidents are rare nationwide, not only in South Florida. Accidents, even accidents that lead to tragic outcomes, are not necessarily crimes. Investigators often look for “error chains:” a series of events that led to a major accident, rather than a single decision or mistake.

As the Herald coverage noted, FIU and its contractors may ultimately need to pay damages to victims and their families if they are found liable in any of the pending civil lawsuits connected to the bridge collapse. I’d go further and say civil liability is almost certainly going to be the outcome if any such cases go to trial, rather than ending in settlements. But building a criminal case out of a construction accident would require prosecutors to meet a high burden of proof. They must show that defendants acted with “reckless disregard for human life” or had “a grossly careless disregard for the safety and welfare of the public.” Making a mistake, even a serious one, is not enough.

The point of the national and local investigations is not only, or even principally, about assigning blame. Bridge collapses are relatively rare, but when one occurs – such as the motorway bridge that failed in Genoa, Italy earlier this week – the results are often deadly. The Herald and other onlookers should be less concerned with whether prosecutors decide to bring criminal charges and more concerned with the lessons we can learn to prevent the same mistakes from bringing down structures in the future.

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