CCL’s Robert S. Peck argued that the Indiana Tort Claims Act violates the state constitution’s equal privileges and open courts provisions, as it has been applied to claimant Jordyn Polet who was injured when the stage collapsed during the Indiana State Fair in 2011.  Jordyn had attended the state fair with her mother, older sister, and a family friend, having situated themselves in a standing-room only area by the stage for a performance of the country music duo, Sugarland. Just before the concert started, a sudden windstorm toppled the overhead rigging and lighting system, killing seven people, including the Polet family’s friend, and severely injuring Jordyn’s mother and sister. Jordyn escaped with relatively minor injuries to her ankle, but was diagnosed with post-traumatic stress disorder, for which she still receives treatment, as a result of what she witnessed.  

Under the tort claims act, Indiana has limited its liability to $700,000 per claimant and an overall limitation of $5 million per incident.  Indiana attempted to settle all claims by splitting the overall limit of $5 million, offering $300,000 in each of the death cases and offering 65 percent of all medical and hospital bills up to that time for the remaining 56 claimants. Jordyn was offered less than $2,000 in settlement and refused the offer as inadequate.  She was the only claimant to refuse a settlement.  Subsequently, the Indiana legislature appropriated an additional $6 million to be distributed to all who had accepted settlements to cover the rest of the hospital and medical expenses originally claimed.  In this case, the State argued its liability ended when it distributed the full $5 million originally authorized under the tort claims act.

Before a Marion County Superior Court judge on a motion for partial summary judgment to strike the State’s claim of complete immunity, Peck argued that the tort claims act had waived government immunity and provided Jordyn with a accrued and valid cause of action that could not be eviscerated by an offer of settlement that she did not accept.  Moreover, Peck said, the overall cap on government liability violated the equal-privileges provision because it treated Jordyn differently than others who have tort claims against the State by reducing her damages only because she was injured at the same time as many others.  He further stated that acceptance of the State’s argument that it could implement the overall cap in any rational way would permit it to devise a first come, first serve approach that would leave out many claimants, not just Jordyn.  He argued that the state could not provide some tort claimants with full economic and noneconomic damages and then offer others injured with many others a percentage of a small subset of their actual damages.

The case is under advisement.  It was also recently the subject of a telecast on NBC’s Dateline.