The Indiana Court of Appeals heard argument on why the state’s claim of immunity from suit denies Jordyn Polet her right to seek compensation for injuries sustained when the stage collapsed at the 2011 Indiana State Fair. Polet, 11 years old at the time of the incident, attended the state fair with her family and a family friend, to see the country duo Sugarland on stage, when a sudden wind caused the overhead rigging and lighting system to collapse on the crowd gathered in the pit. Seven people were killed, including the Polets’ friend, and another 58 were injured in the tragedy. The State settled with nearly all who were injured in the event, offering a percentage of their claimed medical expenses as of several months after the event. The limited offer attempted to stay within a per-occurrence limit of $5 million in the state tort claims act. The act also limits individual claims to $700,000 each.

Jordyn Polet turned down an offer of $1690, choosing to continue with her filed lawsuit as the meager offer did not come close to covering her total damages. Subsequently, the Indiana Legislature appropriated an additional $6 million to be distributed among those who had settled their lawsuits, thereby excluding Polet. The State then claimed immunity from suit against Polet because it had expended the full $5 million authorized by the tort claims act. Polet attacked the constitutionality of the state’s claim of immunity as violative of the Open Courts and Equal Privileges guarantees of the Indiana Constitution. A state trial court ruled against her, and she appealed.

Represented by CCL President Robert S. Peck, Polet argued that the tort claims act was an unequivocal waiver of immunity and that she had a valid, accrued cause of action that Indiana could not divest by how it settled others’ claims. The Open Courts provision permitted her to take her claim to court under the act, and the Equal Privileges provision meant that she had to be eligible to seek damages up to $700,000, just as she would have if she alone had been injured.  The aggregate cap, Peck told the court, treated her less fairly and less equally, than other tort claimants sued by the state merely because of the number of other people who had been injured. Arguing for the state, Indiana Solicitor General Thomas Fisher claimed that Polet was treated the same as the other claimants injured at the fair because she too had been offered a settlement. Peck argued that an offered settlement is not what the tort claims act guarantees and that a proper comparison considered Polet’s rights against others who might make claims against the state from a different incident. The court took the matter under advisement.