Boston's Big Dig, the most expensive highway project in US history, has had its share of woes – from highly publicized leaks to a fatal ceiling collapse that has spawned a civil suit. Now, Massachusetts' attorney general is mulling whether to press criminal charges against the state authority that oversaw the project and some of the contractors.
That possibility has the nation's contracting industry watching closely – and with good reason. Criminal charges against contractors for the failure of a structure they designed or built would be unprecedented. A conviction could embolden other attorneys general to file criminal charges when construction accidents prove fatal.
"A conviction of a Big Dig contractor like Bechtel would be a landmark precedent in the criminal law precisely because such convictions are thought to be impossible to obtain," says Jim Harrington, a partner at Robins, Kaplan, Miller, & Ciresi, a Boston law firm whose practice includes corporate criminal and negligence cases. "Charges and a conviction of the design and install contractors here would send a chill wind through the construction industry."
It's not clear that Attorney General Martha Coakley will file criminal charges.
A year ago, Milena Del Valle was killed when 26 tons of concrete ceiling panels came loose and crushed the car in which she was a passenger. (Her husband, the driver, escaped with minor injuries.) A National Transportation Safety Board (NTSB) investigation concluded that the panels were secured by an inappropriate anchor adhesive. Ms. Del Valle's family filed a civil suit against several Big Dig contractors and the Massachusetts Transportation Authority (MTA), which oversaw the Big Dig. That suit is pending. Civil suits in cases where structural failures result in injury or death are common, legal experts say.
Criminal charges are not. Although prosecutors have considered them in other fatal structural failures, they've never pursued them, these experts say.
In 1981, for example, walkways in a Hyatt Regency Hotel in Kansas City, Mo., collapsed due to faulty design, killing 114. Although $3 billion worth of claims were filed in civil court and two of the engineers involved lost their licenses, no criminal charges were filed.
A major reason that criminal charges are so rare is that the legal bar is set much higher in criminal than in civil court. In civil court, prosecutors can win their case if they can prove that the preponderance of evidence points to negligence on the part of the contractors. In a criminal case, where involuntary manslaughter would be the most likely charge, prosecutors would have to prove beyond a reasonable doubt that the contractors or the MTA knew or should have known that their practices would probably cause death or substantial injury and that they proceeded with wanton or reckless disregard, experts say.
"Although there is probably significant political pressure on [Attorney General Coakley] to press charges, there is no law in Massachusetts or in other states that makes negligence a crime," Mr. Harrington says.
The most comparable case that did result in charges of criminal negligence was an infamous Boston fire at the Coconut Grove nightclub in 1942, says Arthur Leavens, a professor at the Western New England College School of Law in Springfield, Mass. Occupancy limits had been ignored. When the fire broke out, the doors were locked, resulting in 492 fatalities and an eight-year sentence for the nightclub owner.
But locking people into a nightclub shows more obvious disregard for human safety than the actions that led up to the tunnel collapse, Harrington says.
Even if contractors are convicted in the Big Dig case, it is unlikely that any contractors will see jail time, legal experts say. Fines are far more likely.
Despite all the attention focused on the case, it is impossible to predict what the newly elected attorney general will decide, Mr. Leavens says. Coakley has twice delayed announcing whether charges will be pressed. She has a reputation for being cautious and prudent, Leavens adds.
Contractors and engineers are paying close attention.
"Obviously, we're watching for the [attorney general's] announcement carefully," says Mary Gately of the General Contractors of Massachusetts.
"Any threat of litigation can worry engineers who are constantly working on projects all over the country and abroad," says Arthur Schwartz deputy executive director of the National Society of Professional Engineers. But barring evidence of criminal intent, he is skeptical that charges will be pressed, given the lack of precedent in Massachusetts and across the US.
US Sens. Edward Kennedy and John Kerry and US Rep. Michael Capuano, all Massachusetts Democrats, are pushing for a national tunnel-inspection program similar to the one that exists for bridges, a move recommended by the NTSB.