Dane Co. DA: UW Lifesaving Staff not liable in Yu Chen's death

A news release from the Dane County District Attorney's office released at 10:01 p.m Friday states personnel aboard a UW Lifesaving Rescue power boat were not criminally liable for the death of Yu Chen in a windsurfing incident from May 2017. 

Here is the statement from the district attorney's office:

   6-1-18 NO CRIMINAL LIABILITY FOR UW LIFESAVING STAFF INVOLVED IN CRITICAL INCIDENT OF 5-31-2017

After briefings by investigators, a review of summary reports, diagrams, and other evidence, the Dane County District Attorney’s Office concluded Friday, June 1, 2018, that there is no criminal liability for the UW Lifesaving staff involved in the incident on Lake Mendota, in the City of Madison, on May 31, 2017, that resulted in the death of YC.

On May 31, 2017, Dane County Deputy Sheriffs responded to the UW Lifesaving building at 144 E. Gilman Street, in the City of Madison, at approximately 5:50pm, for the report of a person struck and killed by a boat while windsurfing.

The boat involved in the incident was Boat #62 of the UW Lifesaving program. The operator of Boat #62 at the time of the collision was SHK, who had been a LTE with the program since 2013 and had approximately 30 hours’ operation time on the boat involved in the collision since being hired. The other staff members onboard at the time of the collision were CHK who had 44 years’ experience and WGS, who had 43 years’ experience.

At the time of this incident, another employee, SIG, was the tower operator who had 22 years’ experience with the program. This staffing level was normal. The tower operator duties rotated every hour and the remaining three people on duty operated the boat or performed other tasks at the UW Lifesaving Station.

At the request of the Dane County Sheriff’s Office, all staff who operated Boat #62 during the incident submitted to evidentiary blood draws. Toxicology testing for the boat operators did not reveal the presence of any alcohol or controlled substances. YC rented his windsurfing equipment from the Hoofer’s Sailing Club at the Memorial Union. YC had been a windsurfing instructor with the Hoofer’s Sailing Club since 2012 and was an advanced level windsurfer who had been giving windsurfing instructions earlier in the day to a friend.

This friend also confirmed that neither he nor YC consumed alcohol prior to windsurfing. On May 31, 2017, relevant weather conditions on Lake Mendota included northwest winds at speeds of 15 to 25 mph, two to three foot waves, and a water temperature of 59 degrees. YC’s friend reported that YC had an electronic device on his wrist that recorded GPS readings and provided information regarding his speed of travel during his windsurfing sessions.

There is no reliable estimate of YC’s speed. Prior to the collision, Boat #62 responded to a 911 call near Governor’s Island. Once the call was handled, Boat #62 left the area of Governor’s Island heading south towards the Union. SHK then directed the boat to the southeast towards the UW Lifesaving Station without reaching the Union. SHK indicated he believed the boat was heading toward the station for three to four minutes prior to the collision. SHK indicated the need to keep his head up and shifting around to be aware of his surroundings while operating the boat because of the design of the boat. SHK indicated he looked to the left and saw a windsurfer directly in front of the boat, approximately three feet off the bow. SHK said he believed he slammed the gears into reverse which killed the engines.

SHK indicated he believed the windsurfer was under the boat as there was nowhere else he could have gone. SHK indicated he was in shock and could not believe what happened. SHK indicated WGS took the helm, and turned the boat around. CHK then entered the water to pull YC to the boat. Boat #62’s crew called the tower and requested SIG to call 911 as they brought YC to the station.

YC was pronounced dead at the station.

After autopsy by a forensic pathologist, the Dane County Medical Examiner determined that the cause of death was chop wounds of YC’s head, neck, torso, and extremities. The Medical Examiner determined that the manner of death was accident. There was fairly high wind speed, and high waves due to the wind.

Some evidence suggests that there was a glare on the water which may have impacted YC’s ability to see Boat #62. Wind noise would have also made it hard if not impossible for YC to hear the engines of Boat #62.

It is not clear how three crewmembers on Boat #62 did not notice YC and his sail, but if YC was overtaking Boat #62 at an angle slightly behind the boat and from the side, the crew (seated in chairs on the deck facing the rear of the boat) may have had their vision obstructed by the sides of the boat. SHK may not have noticed YC if YC approached Boat #62 from behind. SIG indicated he noticed YC seconds before the collision.

The role of the District Attorney’s Office in a case of this type is limited to a review of the facts to determine whether further investigation is merited and, after all available evidence is obtained, whether criminal charges could be merited for any individual involved. In this case, the Dane County Sheriff’s Department conducted a very thorough, objective investigation.

The determination by this office that no criminal liability is possible is clearly warranted based on the consistent and extensive evidence that has been assembled since the critical incident.

This is a truly tragic event that has caused the loss of one life and impacted the lives of many others. It does not rise to the level of criminal negligence which requires the State to prove beyond a reasonable doubt that a defendant’s conduct created a risk of death or great bodily harm; that the risk was substantial and unreasonable; and that the defendant should have been aware that his conduct created this risk.

Criminal negligence differs from ordinary negligence that would apply in any civil lawsuit because of the need to prove the risk of death or great bodily harm, and the need to prove that a defendant’s conduct created a substantial and unreasonable risk of that harm occurring to another person.

In this case, I do not believe that the UW Lifesaving staff engaged in conduct that would result in a jury finding them criminally negligent.

For more go to WKOW: http://www.wkow.com/story/38331299/2018/06/01/dane-co-da-uw-live-saving-staff-not-liable-in-yu-chens-death

Photo: WKOW

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