Virginia Tech massacre is offering $100,000 to each of the 32 families of victims killed in the 2007 shooting rampage of Seung-Hui Cho. The offer is a relatively low given the strong case of negligence by the University and the higher averages for wrongful death awards.
The university appears to premise the offer only on the acceptance of a significant number of families. Thus, if many decline, the offer could be taken off the table. There is ample reason to decline. The negligence of the University can be found on various levels from failing to properly deal with a clearly unstable student to failing to warn the campus of the first two shootings to a negligence in the response to the on-going massacre.
Virginia would not be able to block any litigation with immunity claims. Moreover, while criminal acts of third parties often cut off tort liability, some criminal acts are treated as foreseeable and actionable. Even landlords in cases like Kline v. 1500 Massachusetts Avenue Apartment Corp., 439 F.2d 477, 482 (DC Cir. 1970) have been held liable for such foreseeable dangers. In cases like Tarasoff v. Regents of University of California, a university was found liable to the family of a third party killed by a patient under the treatment of one of its psychologists.
While the deal would create a fund for medical, psychological and psychiatric care for victims and their immediate families (if not covered by insurance), it is not particularly generous given what these families could expect in court. The number appears to be a low-ball calculation that takes out one-third contingency fees for lawyers and other costs. However, the average wrongful death award is between $500,000 and $800,000 in many states. Metro Verdicts Monthly issued a report that showed the following averages: Maryland ($900,000), Virginia ($750,000), Washington, D.C. ($665,700), Florida ($1,257,386); New York ($1,100,000); Pennsylvania ($1,000,000); Ohio ($850,000); Indiana ($750,000); Missouri ($694,000); North Carolina ($500,000). Click here.
Even less appealing victims have recovered more like the 2003 Virginia settlement of $350,000 for the family of an inmate killed after a stun gun was used on him at the Wallens Ridge supermax prison.
Obviously, there is no guarantee of any recovery or any damages reaching these levels. However, the Virginia Tech offer is far below such averages. However, there are risks on the other side for Virginia Tech. Discovery and a trial would likely be grueling, expensive, and embarrassing. There is also the unknown of punitive damages.
For the latest article, click here.
JT:
As you know, Virginia’s insistence on maintaining the archaic concept of sovereign immunity (“alive and well” as our version of The Supremes likes to say) really complicates this case. While the offers are considerably lower than expected, they are in accord with figures under the Virginia Tort Claims Act, which is only a partial waiver of the sovereign immunity doctrine. Factor in the problem of a superceding intervening cause, and the fairly crude development of our duty to protect doctrine and you have a legal morass that all but the bravest (and best financially able) may fear to cross.
$100,000? That’s around the value of the education (in tuition dollars) some of these students were deprived of alone! What is this, a refund or a wrongful death award? Weak……
Mespo:
Good points all. However, I believe it is possible to get around both immunity and superseding causes. Frankly, it is worth the risk when such a low-ball offer is made in my view.
JT:
Agreed it’s worth the fight. But in my experience, most families will forego the additional money to avoid reliving the nightmare. There is nothing more gut-wrenching than representing parents of fallen children in wrongful death actions. I do not seek these cases out, especially when, such as here, the parents had no chance to say goodbye. From a cold, rational view, cases such as these which are based purely on solace (and perhaps some loss of services) as opposed to those involving economic loss (such as the case of the death of a wage earner supporting a family) would traditionally bring less that the $750,000 average you cited. I would be interested in that breakdown of the figures. For what it’s worth, I think punitive damages would be unavailable against the State (the maximum is only $350,000.00 in Virginia anyway)and my best guess puts the value of these cases conservatively in the $250,000 to $350,000 range per case assuming you could get around the Virginia Tort Claims cap.
If anyone is interested on Virginia law on this topic, the fairly recent case of Thompson v. Skate America, 540 S.E.2d 123 (Va., 2001) offers a primer on the subject in the context of a special relationship situation as exists in the Virginia Tech cases. A casual reader can probably sense the Court’s reluctance to open up this area of litigation by its limiting of the recovery only to those cases where the imminent probability of harm can be established through proof of the business invitor’s knowledge that “assaults are occurring, or are about to occur ….”
Mespo,
Thanks so much for this series of posts. This is exactly the kind of information that is so valuable and goes beyond all the name-calling and slogan repeating we hear so often.
Conceal & carry at the University would have prevented this tragedy.