Sizzler death indictment part of trend
By Shaun Sutner TELEGRAM & GAZETTE STAFF/
It’s hard to prove. For a criminal act, you need criminal intent. You pretty much have to show that he knew an accident could have happened at any time, and he disregarded this risk.
David L. Yas,
PUBLISHER AND EDITOR IN CHIEF OF MASACHUSETTS LAWYERS WEEKLY
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Brian R. McCullough, the carnival ride supervisor who is the first person to be criminally charged in Massachusetts for causing an amusement accident, was a good employee who worked in a variety of jobs in 10 years with Fiesta Shows, New England’s largest traveling carnival company, his old employer said.
Mr. McCullough, 39, of Hernando, Fla., was indicted Friday by a Worcester grand jury in the death of 38-year-old Andrew R. Fohlin on a Sizzler ride at a Shrewsbury church festival last fall.
He is facing a count of manslaughter for allegedly failing to adequately maintain the whirling ride for which he had responsibility and signed off on daily visual inspections.
Mr. McCullough had worked for Jaro Amusements of Carlisle, the Sizzler’s owner, for seven months leading up to the Sept. 19, 2004, accident, in which Mr. Fohlin, a resident of a state-run home for the mentally retarded, died and two other residents of the home were injured.
Before that, the lifelong carnival worker was with Seabrook-based Fiesta Shows, which also had employed his parents for many years, according to John Flynn, Fiesta’s vice president.
“I’m still in shock. I’m flabbergasted. I feel sorry for the young man’s parents,” Mr. Flynn said. “I assume he’d inspect a ride and do everything he should have done.”
Mr. Flynn said he didn’t work directly with Mr. McCullough, but that McCullough “always seemed to be a good employee.”
“He was a ride operator. He probably held four or five positions with us,” he said.
The indictment is part of a recent tendency toward criminalizing amusement industry fatalities, some observers say.
In May, a Tennessee amusement park manager was convicted of bypassing the safety system of a Hawk ride and causing a 51-year-old woman to fall 60 feet to her death in March 2004.
Last November, an Ohio state inspector received 15 days in jail for dereliction of duty in connection with the electrocution death of an 8-year-old boy who was waiting to ride a bumper car at a county fair. A fair electrician was found guilty of involuntary manslaughter and reckless homicide for having improperly wired the ride, and the owner pleaded guilty to involuntary manslaughter and was sentenced to six months in jail.
In 2000, an amusement company owner became what was believed to be the first carnival operator held criminally liable in this country for a rider’s death. He pleaded guilty to manslaughter charges stemming from a 1988 accident on a Himalaya ride in which a 15-year-old girl was flung from her seat into a wall and was killed.
“This is just another example of a dangerous growing trend in which prosecutors are trying to criminalize actions which previously would likely have been dealt with through lawsuits between individuals,” said Chad Emerson, a professor at the Jones School of Law at Faulkner University in Alabama who specializes in amusement law. “It’s because the amusement industry is a high-profile business and it gathers attention.
“Prosecutors are prone to bring charges in instances that are higher-profile,” he said. “You don’t see prosecutors bringing charges if an elevator inspector misses something in his checklist.”
Legal experts also said they were not surprised that Worcester District Attorney John J. Conte apparently chose to seek an indictment only of the Jaro manager closest to the mechanical operation of the ride, rather than targeting the corporation or Jaro’s president, John J. “Jack” Keough.
Proving that the corporation itself was negligent, or that Mr. Keough — who supervised daily visual inspections of some rides, though not the Sizzler — was at fault, would be much more difficult, said David L. Yas, publisher and editor in chief of Masachusetts Lawyers Weekly.
Even the case against Mr. McCullough may be difficult to make, he said.
“It’s hard to prove,” Mr. Yas said. “For a criminal act, you need criminal intent. You pretty much have to show that he knew an accident could have happened at any time, and he disregarded this risk.”
Commentators said the case could well end up with a plea bargain to a lesser charge before it ends up in court, which would spare Mr. McCullough and Jaro the public glare of a trial and prosecutors risk of an acquittal.
“There’s going to be hell to pay in this case, but it will more likely be in the civil rather than the criminal arena,” Mr. Yas said.
Mr. Conte’s lead prosecutor in the case, Assistant District Attorney Richard L. Greco, is known in Worcester legal circles as a tough, seasoned lawyer who succeeded in obtaining an indictment in a complex case.
Mr. Keough did not return calls placed to his business. It was unclear yesterday whether Mr. McCullough has hired a lawyer. Telephone calls to Boston law firm Todd & Weld, which has been representing Jaro, were not returned.
Amusement industry lawyer David J. Daly of Wellesley, who has represented Jaro’s insurer and is a board member of the New England Association of Amusement Parks and Attractions, declined to comment.
Mr. Fohlin’s large family was barraged by media calls yesterday after news of the indictment spread, with the victim’s older sister, Sylvia R. Fohlin, and one of the family’s lawyers, Bradley M. Henry, fielding inquiries.
The indictment likely clears the way for the lawyers to file a civil lawsuit against the company.
“While it brings no one happiness to see an individual indicted for any crime, there can be no question that carnival owners and managers are now on notice that disregard for safety will not be tolerated,” Mr. Henry said. “There can never be enough done in terms of safety, but we are grateful the district attorney and the grand jury have taken the issue so seriously as to issue an indictment.”
Contact Shaun Sutner via e-mail at .