Charles A. Carnell, a 33-year-old Lake Delton, Wisconsin man who operates “Terminal Velocity” a SCAD freefall attraction at Extreme World in Wisconsin Dells, has been charged with one count of first-degree reckless injury in violation of W.S.A. 940.23(a)(1) and 939.50(d) in connection with a July 30 incident in which a 12-year-old Florida girl, Teagan Marti, of Parkland, Fla., was critically injured on the attraction.
First-degree reckless injury in Wisconsin is a Class D felony and means that Carnell could face up to 25 years in prison and $100,000 in fines if convicted. A SCAD is a suspended catch air device in which a customer or “diver” ascends about 150 feet in the air either by stairs or a special elevator system. The diver is fitted into the CFF “Controlled Free Fall” system that guarantees a secure free fall position for a comfortable landing. The operator (a “dive master”) assists the diver into a proper position and releases the cable that suspends the diver. The diver then drops in an unattached controlled freefall for about 100 feet before being caught in a suspended net attached to airtubes and break suspensions for a soft landing so that the diver feels no impact at all. A secondary safety system is in place in the form of an inflated air bag onto which the net is lowered. The air is then released from the bag allowing the diver to return back to the ground.
According to news reports, on July 30, 2010, Ms. Marti got the opportunity to try the attraction and hopped on the elevator platform with 2 men along with Carnell. The platform began the ascent but slowed down, presumably to let the air bag fill up. The elevator stopped again about 100 feet in the air and Carnell assumed he was ready for the dives. From his vantage point, he could see the net and the air bag below and was to wait for a signal to be given by the ground operator who ensures the net is raised properly and that the air bag is inflated. Carnell then “blanked out” and placed Teagan in the dive position and released her cable. Unfortunately, the ground operator never provided the signal and the net and air bag both remained on the ground. With a thud, Teagan landed on the ground below. She was alive and subsequently taken to a hospital with serious medical conditions include swelling of the brain, several fractures of the cervical and lumbar segments of her spine, multiple fractures of her pelvis and lacerations to her liver, spleen, intestines and duodenum.
There is an ongoing debate on whether or not Carnell should be charged with a crime and whether the charge would meet success with a jury. This case seems to have many similarities to the Air Glory incident that happened in Oshkosh, WI in 2007 when a 16 year-old girl fell to her death from a bungee attraction at a Lifest festival after a worker had failed to properly lock a safety device. No charges were filed in that death. The District Attorney said that given all the circumstances in that case, while it did appear obvious that negligence was a factor, it didn’t rise to the level of criminal negligence. The attorney who represented the girl’s family in a lawsuit against Air Glory operator and its owner, Gary Ross, said civil actions generally result in more safety improvements than criminal cases and that was true in their case.
Section (1)(a) of W.S.A. 940.23 states: “Whoever recklessly causes great bodily harm to another human being under circumstances which show utter disregard for human life is guilty of a Class D felony.” According to what appears to be one of the leading cases on the charge, State v. Miller (App. 2009) 772 N.W.2d 188, 320 Wis.2d 724, “utter disregard for human life,” for purposes of the offense of first-degree reckless injury, requires more than a high degree of negligence or recklessness. To evince “utter disregard for human life”, for purposes of offense of first-degree reckless injury, the mind must not only disregard the safety of another but be devoid of regard for the life of another; a depraved mind lacks a moral sense, an appreciation of life, is unreasonable and lacks judgment. In evaluating whether there is sufficient proof of utter disregard for human life, for purposes of offense of first-degree reckless injury, the court considers many factors, including the type of act, its nature, why the perpetrator acted as he did, the extent of the victim’s injuries and the degree of force that was required to cause those injuries, the type of victim, the victim’s age, vulnerability, fragility, and relationship to the perpetrator, and finally, whether the totality of the circumstances showed any regard for the victim’s life.
The “utter disregard for human life” element of the offense of first-degree reckless injury can be proven by evidence relating to the defendant’s subjective state of mind, by the defendant’s statements before, during and after the crime, or by evidence of heightened risk, such as special vulnerabilities of the victim, or evidence of a particularly obvious, potentially lethal danger. State v. Jensen (2000) 613 N.W.2d 170, 236 Wis.2d 521. While we know that the operator expressed remorse as soon as he heard the result of the fall, as he started hitting himself in the head, “after-the-fact regard for human life”, while it may be considered by the factfinder as a part of the total factual picture, does not negate “utter disregard for human life” otherwise established by the circumstances before and during the crime, and does not preclude a finding of utter disregard in a prosecution for first-degree reckless injury. We have yet to hear from either of the men on the elevator with Carnell and Marti, and the judge has recently ruled that the video of the event is not to be released.
I’ll continue to follow this important case and keep you updated as it continues.