Manslaughter Charges in Flint, Michigan Water Controversy: What Ramifications for Businesses?

On June 14, 2017, the Michigan Attorney General (“AG”) filed manslaughter charges against five current or former government officials.  The charges stem from the death of a Flint resident from Legionnaire’s Disease.

Criminal charges against government officials generally make headlines, as do charges against businesses or their managers.

Against one official, the charges assert that “the negligent omission by this defendant to perform a legal duty” resulted in the death of the resident.    The charges further state that the negligent omission was “the failure to alert the public about a Legionnaire’s Disease outbreak…when he had notice that another outbreak was foreseeable.”

Corrosion in the Water System and Legionnaire’s Disease

The AG alleges: (1) corrosion in the Flint water system increased the risk of Legionnaire’s Disease; (2) these officials negligently failed to perform their duty to warn about the risks that the water posed; and (3) this negligence caused the death of at least one Flint resident.

Manslaughter: Definition Varies by State

The definition of “manslaughter” is a matter of state law, and can vary across states.  In Michigan, it appears that simple negligence, when it is an omission to “perform a legal duty,” can be manslaughter if that negligence is a cause of death.  This suggests that the simple negligence of a company or a manager in failing to comply with a permit or regulation could be manslaughter, if that negligence causes a death.

In contrast, states such as Texas require proof that the defendant consciously disregarded a substantial and unjustifiable risk, or proof that the defendant took a risk of such a nature and degree that the failure to perceive it constituted a gross deviation from the standard of care that an ordinary person would exercise.  It appears that it would be much harder to convict a company or manger for a work place fatality in Texas.

State Law Expertise Is Vital

Criminal laws vary from state to state, and the methods that creative prosecutors may use to enforce against businesses will also vary.  Companies faced with potential criminal enforcement need excellent lawyers versed in the local state’s criminal law.

Expect Increased State and Local Enforcement

In Michigan, many view the current AG as a potential candidate for governor.  (Some say “AG” also means “aspiring governor.”)  While obtaining manslaughter convictions may be a legal and factual challenge, bringing the charges allowed the AG to appear on local, state, and national news to announce this enforcement action.

In an era when many state or local officials perceive a decreased interest in the federal government enforcing the law against businesses (See my prior alert), more state attorneys’ general and district attorneys will look for creative ways to bring enforcement actions against businesses, especially when accidents lead to work place fatalities.  Criminal charges against business entities or individual managers make headlines.

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