Indiana Liability Cap in Stage Collapse Questioned

The $5 million limit on the state’s liability for the deadly Indiana State Fair stage collapse is unfair in the eyes of at least one state legislator, but a top state senator says he’s skeptical of raising the cap.

State Rep. Ed DeLaney, D-Indianapolis, told the Indianapolis Star that he plans to introduce legislation that would allow the state fair victims to collect more.

‘As an elected official of this state, I am literally saddened by what happened and by the inadequate current limit on payments,’ said DeLaney, an attorney who has worked on product liability cases.

Delaney argued that the state has greater responsibility since it invited people to the Aug. 13 concert and didn’t inspect the safety of the outdoor stage that strong winds blew onto the crowd. ‘Our role is so deep that we need to take care of our people,’ he said.

Seven people died in the collapse. More than 40 others were injured, several seriously. Attorney General Greg Zoeller’s office by Sept. 2 had received tort claims from 14 people who intend to sue the state for damages.

But state Senate Appropriations Committee Chairman Luke Kenley told the Star he doesn’t favor raising the cap. ‘I think this is a call to arms by trial lawyers a little bit,’ he said. ‘Once you start arguing whether a cap should be raised one time, you should be saying, ‘Do we want the cap raised in all cases?”

Asked whether Gov. Mitch Daniels would consider supporting a one-time waiver or an increase in the state’s liability cap, spokeswoman Jane Jankowski said: ‘It is premature to respond to the question.’

According to the National Conference of State Legislatures, 33 states have caps on state liability, and Indiana’s $5 million per occurrence limit is the highest among them. The state also caps the amount an individual can collect from the state at $700,000.

Several states cap total awards at less than $1 million. According to Mark Sniderman, an Indianapolis civil rights attorney who studies state liability limits, Kentucky is among the lowest with an individual limit of $200,000 and a per-occurrence limit of $350,000. Florida’s per occurrence limit is even lower, at $300,000, but that can be exceeded with legislative approval.

Oregon has a higher per-person cap than Indiana at $1.7 million, but a lower total damages limit: $3.4 million. Georgia likewise has a higher individual cap at $1 million, but a lower per-occurrence limit of $3 million.

Several states, including Ohio, Michigan and California, have no caps on damages against the state, Sniderman said, though some do have other rules that apply or special processes for claiming damages.

‘Whenever you have caps, it’s a deviation from a just world. People no longer have to pay for the damages they’ve caused when a cap is in place,’ Sniderman told the Associated Press.

If the families of the seven people killed in the state fair accident each received the $700,000 maximum allowed under Indiana law, that would leave only $100,000 to be split among the other people who were injured, the Star noted.

Indianapolis attorney Tony Patterson said his two clients — Jill Polet and her daughter, Jaymie — have already run up more than $100,000 each in hospital bills and are being treated in rehabilitation facilities near their home in Cincinnati.

‘Caps, in theory, sound good,’ Patterson said. ‘No one likes frivolous lawsuits. But unfortunately, caps don’t do anything but hurt people that have been legitimately and seriously injured.’

But there is precedent for waiving the caps, the Star reported.

In 1997, Gov. Frank O’Bannon and the family of 4-year-old Emily Hunt reached an agreement in which the state paid most of Emily’s medical bills after a train accident at Old Indiana Family Fun-n-Water Park near Thorntown left her paralyzed from the chest down. The deal consisted of $1.5 million from the state’s tort claims fund — more than three times the maximum at that time — and ongoing coverage under other state programs.

After a 2007 bridge collapse that killed 13 and injured more than 100 others, the Minnesota Legislature waived its existing liability cap of $1 million per occurrence. The state ended up paying out a total of $38 million to victims.

None of the lawyers took any fee, the Star said.