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Damage cap limits state's potential losses from concert tragedy

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Total damages the Indiana State Fair could pay victims of last Saturday's concert tragedy would be capped at $5 million—an amount personal-injury lawyers say is far too low for the injuries and deaths involved.

Because of a state law that limits individual damage claims against the state to $700,000 and overall claims to $5 million per event, several other entities besides the state fair might become targets of negligence lawsuits, legal experts say. They could include the designer and builder of the stage or even the promoter of the concert, according to lawyers.

“I think there will probably be a large number of defendants listed, just because there’s a limited pot of money,” said Indianapolis defense lawyer Tom Schultz.

Saturday night’s accident happened when a wind gust estimated at 60 to 70 mph toppled the roof of the stage and the metal scaffolding holding lights and other equipment. The stage collapsed onto a crowd of concertgoers awaiting a show by the country act Sugarland at the fair's grandstand. Five people died and more than four dozen were injured, some critically.

Several people are still hospitalized, including at least two victims with brain injuries.  

Litigation arising from the deadly accident is likely as several local attorneys already have been contacted by family members considering their legal options.

Dan Chamberlain, a partner at the Indianapolis personal-injury firm of Doehrman Chamberlain, said his firm could file suit on behalf of one victim within the next week.

“You’ve got 50 people injured, five who have been killed, and you’ve got $5 million in coverage,” Chamberlain said. “It’s nowhere close to fairly and adequately compensating the families.”

It remains unclear whether anyone had inspected the concert stage that toppled over, or if anyone was supposed to do so.

Fair officials said they have hired New York engineering firm Thornton Tomasetti Inc. to investigate the accident. The firm was involved in a similar investigation of the 2007 collapse of the Interstate 35 bridge over the Mississippi River in Minneapolis.

Indianapolis lawyer Mark Ladendorf, who expects to represent at least two families of the victims, said most firms will launch their own investigations.

“We’re going to have to get answers for our clients,” he said. “We succinctly can’t rely on what the government is going to tell us and what someone hired by the government will tell us.”

Under the Indiana Tort Claims Act, lawyers must notify the state entity they intend to sue within 270 days of the accident.  

State fair spokesman Andy Klotz said the fair is self insured against such lawsuits under the Indiana State Tort Claims Act.

He acknowledged to WISH-TV Channel 8 on Wednesday that the fair didn’t follow its own severe weather procedures by failing to inform concertgoers that the National Weather Service had issued a severe thunderstorm warning for the area.

Indianapolis meteorologist Paul Poteet told WXIN Fox 59 that fair officials disregarded his warning to delay or cancel the show.

Questions about whether the fair did enough to anticipate a storm have loomed over the event. Some fairs hire their own meteorologists for just such a scenario.

The local law firm of Wilson Kehoe & Winingham LLC has retained a meteorologist and a structural engineering consultant in anticipation of representing family members, firm partner Bruce Kehoe said.

“When you have that type of catastrophe and that kind of loss, it would be unusual for folks not to want to get answers that are difficult to obtain,” he said.

Schultz, the defense lawyer who is a former president of the Defense Trial Counsel of Indiana, expects numerous claims will be filed.

“The question is, is there fault somewhere?” he asked. “Right now, we don’t know.”

This story was originally published on IBJ.com Aug. 18, 2011.

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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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