UPDATE 3/24/11–Well, less than a week out and the first lawsuit has been filed. And it appears to be on behalf of someone who was clearly injured, but lucky compared to many of the injured. But, it is their right to seek a prompt remedy for their injuries–including medical bills. And it may not be so prompt in the end. “Justice delayed” is certainly one flaw of our civil and criminal justice systems.
I have also done some additional legal research on the caps issue (see below). And there is a pretty good argument for circumventing the $600,000 aggregate cap by alleging multiple acts of negligence. The $600,000 cap applies to any single occurrence, no matter how many are injured; however, single “occurrence” which is defined as ““an unfolding sequence of events which proximately flow from a single act of negligence.” See S.C. Code § 15-78-30(g); see also Chastain v. AnMed Health Found., 388 S.C. 170, 173, 694 S.E.2d 541, 543 (2010). It seems that the failure of LLR to inspect and the admission of the conductor that he was going too fast are two separate and distinct acts of negligence. The counter argument: “Well yes, but the events unfold into a single (and indivisible) harm.” A court will decide.
This issue will be at the front and center of this case. But, with the possibility of a multiplier for the $600,000 gives hope that those who suffered harm will receive full and complete relief. Personal responsibility should not be capped and neither should government’s responsibility.
We are just about 3 days out from the accident in Cleveland Park (Spartanburg, SC) that took a young boy’s life and hospitalized his father and other children. Breaking on Tuesday (3/22) is the news that the conductor of the kiddie train told police he was going to fast. Also today, WYFF has posted the 911 calls. Yesterday it was news that the state inspector with LLR did not properly conduct his inspection, but falsified his report to reflect otherwise. I suspect if there is information about prior problems with the track or train, it will break shortly. No doubt, there are more questions (legal as well as policy oriented) than answers and likely will be for sometime.
It would be helpful to have an independent investigation by a rail safety expert. The expert could examine the scene of the accident before it is disturbed. Where there any defects in the tracks? What was the speed of the train? How fast is too fast? The maintenance history will be particularly relevant. And how seriously injured were its passengers? When will the finger pointing go between those who share responsibility? But, the more time that passes the more clues that disappear.
Unfortunately, getting an independent investigation is not likely to happen unless one of the families hires a lawyer, who in turn funds such an investigation. Of course, the cards have been stacked against the families because the state has put caps on their recoveries, from which the case is funded. The state has unlimited funds to defend such an actions. Is it fair for our government to stack the deck against it citizens when it causes their injury and death?
However, in a case such as this where so many were so severely injured, the aggregate cap contained in S.C. Code section S.C. Code Section 15-78-120 appears nothing less than immoral. This case should be strong enough evidence to question the wisdom and fairness of arbitrary caps on damages. In South Carolina, like other states, there are attempts to limit the ability of juries to award damages against corporations for injuries they cause to innocent others. Caps shift costs–so, who will pay the medical bills if there is not enough money to go around? Hint: When lawsuits obtain a monetary award much goes to reimbursing Medicare, health insurers and local medical providers. Tort reform shifts these costs away from business and toward consumers and citizens (us) under the banner of being “pro-business.”
And even if you want to argue the practical implications of tort reform, it is hard to ignore that it is nothing less than an assault on the constitutional right to a trial by jury. There is a reason that preserving a citizen’s right to a jury of his peers was included in our Bill of Rights–because it levels the playing field of democracy. And, don’t get me wrong–juries aren’t perfect, but when they get it wrong, they get it wrong honest. That is more than you can say about the other branches of our government. So, perhaps the biggest question of all, is whether this tragedy will open the eyes of voters that caps on damages is a cap on justice.