As discussed on this blog, Virginia’s $100,000 limit on tort claims against the state was one of the central reasons why families agreed to a settlement with Virginia at a relatively low figure. Now, finally, someone is seeking to change the cap which has not be raised in over a decade.
Families of students and teachers killed or injured by Seung Hui Cho had a promising case of negligence against the state. Click here but the cap created considerable uncertainty as to their ability to secure and defend any award.
House Majority Leader H. Morgan Griffith (R-Salem) has stated that “Just like the situation at Tech brought to light the need for mental health reforms, it also raises questions why the Tort Claims Act dollar amount hasn’t been raised since 1993.”
A $25,000 cap was first imposed in 1982 and then raised to $100,000 in 1993 — applying to all cases except those involving “gross negligence.” It was possible that the families could prove gross negligence but it was a risk.
That led them to accept an $11 million settlement in exchange for agreeing not to sue the state, including $100,000 to the families of the 32 people Cho killed and up to $100,000 for the injured, depending on the severity of their injuries.
I must confess to being a critic of caps, particularly against the government which should not protect itself from the full measure of accountability for negligence. Click here and here.
For the full article, click here.
To all:
I hope we all remember the tragedy one year ago yesterday at the Blacksburg campus. As the father of a college student in that idyllic valley, and with another one in waiting, I cannot fathom the senseless loss of innocent life, nor its root cause. Unlike some, I do not blame the easy access to guns here as the prime factor, though I am sure it adds to the problem. I think the sense of alienation I see among today’s youth coupled with the lack of effective mental health screening is the main culprit.
Senseless acts like these sometimes shake my faith in the law which I see as the bulwark against irrational hatred, loathing and violence. With time that feeling usually changes, but in this case it seems to linger on. Perhaps Professor Turley has a better perspective than I since he has the benefit of seeing the flowering of the law on a daily basis.
For me, the melancholy is best expressed by Houseman:
The time you won your town the race
We chaired you through the market-place;
Man and boy stood cheering by,
And home we brought you shoulder-high.
…
Smart lad, to slip betimes away
From fields were glory does not stay
And early though the laurel grows
It withers quicker than the rose.
…
And round that early-laurelled head
Will flock to gaze the strengthless dead,
And find unwithered on its curls
The garland briefer than a girl’s.
The conservatives’ desire for caps on awards highlights one, though certainly not the only, hypocricy in their platform. One of their justifications for capping damage claims and/or punitive awards is to make the loss to the offending entity more–predictable. This potential loss from a jury award if the trial outcome goes against them could then be calculated along with legal fees to determine whether the revenue and profit generated from an illegal corporate act, inferior or tainted product, etc. outweighs those costs.
The hypocricy comes from the conservatives’ view that capping political campaign contributions is considered an attack on free speech, but trying to limit access to legal remedies and/or capping jury awards handed down by juries of one’s peers is not.
JT:
Well if you notice the proponent is a Republican from Salem, just outside of Blacksburg. Tom Albro, also cited in the article, is a plaintiff’s lawyer from Charlottesville and he’s skeptical. The med mal cap was only raised because of sheer embarrassment that our legislators felt after the cap was not raised for many years and fell so far behind the national norm. I recall all the fuss about tort reform about 10 years go. I told my friends from other states, it was no big deal to Virginia lawyers, we’ve had it for years. I think the ABA could be of help, but here in Virginia with the regional politics in play, the chasm between the parties ideologically (which is relatively new here by the way)and the disdain of outside influences its role would be severely limited. If the tragedy at Tech couldn’t get restrictions passed on gun show sales, I doubt the legislators will be more enlightened when it comes to compensating victims from the State Treasury.
I agree, Mespo. Frankly I am surprised by the courage of some of these legislators. This is something that the ABA needs to be more active on. Lawyers need to educate citizens about the impact of these caps on deterring misconduct.
JT:
I hope it passes but I have my doubts. Virginia once had a $25,000 cap on all wrongful death claims, but that has been lifted. We still have a $350,000 cap on all punitive damages. (I am sure that truly worries the Fortune 500 crowd). We also have a 1.95 million dollar cap on all medical malpractice claims regardless of the economic loss involved, which is another case of white collar welfare, shifting the costs of care of the patient from the negligent physician and his/her insurer to the State. Welcome to Virginia, Inc.