Stage collapse victim asks appeals court to throw out state’s liability cap

After a stage collapsed at the 2011 Indiana State Fair, killing seven people and injuring dozens of others, the state began to make some financial compensations.

That meant finding a way to divide $5 million — the maximum the state is obligated to pay — among 56 victims who were physically injured and the estates of seven who were killed by the collapse.

But attorneys for Jordyn Polet, the only victim who didn’t accept the state’s money, thought her offer of $1,690.65 was not only paltry — it was unfair. It might even be unconstitutional, they argued.

On Monday, one of Polet’s attorneys asked the Indiana Court of Appeals to throw out the law that limits the amount of damages the state can give out after a tragedy. If successful, Polet’s case could set a new precedent for how much money the state is obligated to pay victims of catastrophic events.

The reason for the lawsuit, argued Polet attorney Robert Peck, was that the amount the then-10-year-old Ohio girl was offered violated her constitutional rights.

If the state is paying out damages, Peck said, “all those similarly situated must be treated alike.” Polet made a $100,000 claim, Peck said, but was offered a fraction of that amount.

Her mother and sister, who also were injured, received about $184,000 and about $211,000, respectively, out of the original $5 million.

“The equal privileges provision of the Indiana Constitution guarantees that all claims are treated uniformly,” Peck said. “Our client’s claims weren’t treated uniformly.”

According to court documents, Polet “suffered physical and emotional injuries” as a result of the incident. The state said it agreed to pay 65 percent of out-of-pocket medical expenses for nonpermanent physical injuries, like Polet’s, but Peck said that consideration was premature and did not take into account subsequent medical costs.

The state on Monday defended the caps outlined by the Tort Claims Act, saying it had already made an offer to Polet and had paid out the maximum amount to the other victims.

That argument was a success in Marion Superior Court earlier this year, when a judge ruled in favor of the state.

Arguing for the state Monday, Solicitor General Thomas Fisher said government officials worked to create compensation amounts that were as fair as possible.

“Not everyone is going to get the full value of what their claim is worth,” Fisher argued before the three-judge appellate court panel. “We’re not setting out on this to be unfair and arbitrary.”

Under current Indiana law, the liability of government entities is limited to $700,000 per victim. But in an event involving multiple deaths or other injuries, the liability is capped at a combined total of $5 million.

“We have no problem with the individual cap,” Peck said. “What we are questioning is how that operates given that the aggregate cap then destroys the claims of those who have just been injured catastrophically with others.”

In a statement released after oral arguments, Attorney General Greg Zoeller defended the cap.

“My office worked extremely hard with the help of a nationally renowned expert to design a compensation process that fairly, equitably and compassionately distributed all the available dollars to victims of the State Fair tragedy,” Zoeller said, “and nearly all eligible claimants accepted the settlement offer, and the process was constitutional.”

Many of the victims of the State Fair stage collapse later received additional compensation. In 2012, the Indiana General Assembly voted to make available an additional $6 million in public funds.

But according to Zoeller’s office, those funds were offered only to victims who had already released the state from liability, a condition that excluded Polet.

Peck said he would not comment about whether Polet would have accepted money from that fund.

The three-judge appellate panel, consisting of Judges Nancy Vaidik, Melissa May and Ezra Friedlander, will consider the case and issue a decision at a later date.

Call Star reporter Jill Disis at (317) 444-6137. Follow her on Twitter: @jdisis.