Saturday, August 20, 2011

First Lawsuit In Indiana State Fair Stage Collapse Poses Interesting Challenges

A northwest Indiana attorney has filed the first lawsuit of many expected to be filed less than one week following the tragic collapse of the stage rigging at the Indiana State Fair Grandstand prior to the start of the Sugarland concert. Kenneth Allen represents the estate of Tammy VanDam, who died instantly when the stage collapsed upon persons seated in the VIP area immediately in front of the stage as high winds from an approaching severe thunderstorm reached the fairgrounds, and VanDam's surviving same-sex spouse, Janeen Beth Urschel, who survived but sustained injuries. Allen told reporters at a press conference yesterday that he intends to challenge Indiana's wrongful death statute, which does not permit surviving same-sex partners to recover for the loss of their spouse. Urschel said she and VanDam were married in Hawaii about ten years ago according to a report by the Northwest Indiana Times:

Urschel, 49, said she and VanDam, 42, met in 1999 and were married in Hawaii in 2001 or 2002. Although the marriage is not recognized in Indiana, Allen said he probably will challenge that in court so she would be able to be recognized as any other spouse.
"We had so many plans and things we wanted to do," she said.
Allen said he was forced to file the suits quickly to secure an injunction to prevent evidence from being tampered with or destroyed.
The wrongful death suit filed on behalf of VanDam seeks $50 million plus punitive damages, while the suit on behalf of Urschel seeks $10 million plus punitive damages. VanDam's 17-year-old daughter was at Allen's offices during the news conference but decided not to face the media.
"This was a terrible tragedy that could and should have been prevented; the responsible parties must be held to account," Allen said.
It's not clear how VanDam and Urschel could have been married in Hawaii because Hawaii has never permitted same-sex marriages. In 1993, the Hawaii Supreme Court ruled that the state's marriage law was unconstitutional insofar as it failed to recognize same-sex marriages; however, voters later approved a constitutional amendment in 1998 that expressly gave the legislature the power to ban same-sex marriages. A law passed earlier this year will legalize the recognition of same-sex civil unions but not marriages entered into in Hawaii beginning next year. There are presently only six states that recognize same-sex marriages, including Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont. Indiana passes its Defense of Marriage Act in 1996, which bars the recognition of same-sex marriages. VanDam is survived by a 17-year-old daughter, who does qualify to pursue a claim for the loss of her mother under Indiana's wrongful death statute.

The victims' survivors face further challenges in recovering for the death and injuries of their family members. While the lawsuit Allen filed on behalf of VanDam's estate and Urschel names as defendants a number of defendants, the most likely defendant, the state of Indiana which operates the state fair, is not named. That's because Allen is first required to provide the state with a tort claim notice within 270 days after a loss occurs. The state has 90 days to notify a claimant of the approval or denial of their claim. A claimant cannot sue the state until their claim has been denied in whole or in part. Worse for the victims of the state fair tragedy are the severe recovery limitations imposed by Indiana's tort claim statute. No person can recover more than $700,000 per occurrence, and the total recovery of all persons claiming injuries from a single occurrence is capped at $5 million. Given the large number of victims in this case, at least six dead and more than 40 injured, the individual recoveries from the state are going to be relatively small.

For now, Allen's lawsuit is seeking a restraining order to prevent the state or the state fair commission from disturbing the wreckage from the collapsed stage rigging. The state has hired Thornton Tomasetti to study the wreckage and the events surrounding the collapse of the rigging to determine a cause for its catastrophic failure. Witt Associates has been hired to investigate the preparedness and response efforts of state fair officials.

Allen has named several defendants in his initial lawsuit, including the most obvious, Mid-America Sound Corp., which owned and operated the stage rigging equipment that collapsed during the storm. Allen has also named Live 360 Group, which booked the Sugarland concert, and Live Nation Entertainment, which owns TicketMaster. Not surprisingly, the owner of Live 360 Group, Dave Lucas, tells the Star that he believes the lawsuit is misdirected. "My thoughts and prayers go out to the victims," Lucas said, "but our company . . . had absolutely nothing to do with the (stage) roof. Zero. That's all I can say." Interestingly, Allen did not name the band or its promoter as defendants. Allen's lawsuit for the two victims is seeking $60 million in damages, $10 million of which he says represents punitive damages.


Paul K. Ogden said...

There are some things I'm unclear about. First, a specific dollar asmount is listed as damages they are asking for. I believe the rules were amended a few years ago to prohibit specifying damages in a complaint. Years ago, I had the amount in my complaint struck on that basis.

Second, how are they filing that lawsuit in Porter County? Shouldn't that be in Marion County or the location of the Defendant(s). I don't think the fact the Plaintiff lives in Porter County (I assume) would give the court there jurisdiction. Maybe there's something I'm overlooking. Interesting take on the same sex marriage argument.

Gary R. Welsh said...

I agree, Paul, that Marion Co. would be the preferred venue for filing the lawsuit. He likely filed it there for convenience and familiarity with the local court rules. You are correct that you aren't suppose to specify the dollar amount in the lawsuit in a personal injury claim in Indiana. I'm assuming that is a figure the attorney furnished to the media. I haven't seen a copy of his complaint so I can't say for certain; I'm only going by the news reports. Of course, his tort claim notice to the state would state the amount of his clients' claims.

Morning Constitutional said...

The facts concerning the relationship between the two victims seem a bit muddy. As you observe, Gary, reports that they were "married" in Hawaii aren't legally correct, and it isn't clear how they could even claim the relvance of Hawaii's new civil union statute if the claimed union took place a decade ago. However, I did hear one news report saying they had "recently" returned from Hawaii and had big plans. Whatever the nature and outcome of this aspect of the litigation, it will point out the unequal treatment of same-sex couples under the law in an increasing patchwork of different recognitions from state to state, against the background of the federal Defense of Marriage Act. An increasing number of legal scholars have written that the issue is becoming more than just legal recognition of marriage itself, but of such spin-offs as how such a couple gets a divorce in another state, and many related rights and incidents. Even without having to rule on the direct question of same-sex marriage, courts are increasingly going to have to deal with these matters.

Paul K. Ogden said...

Well if he's suing the state, the Notice of Tort Claim period is a minimum of 90 days. I suppose you can stay things during that 90 days. Of course, he'd be foolish not to sue the State.

It sounds like this got rushed forward probably to try to get other plaintiffs.

Gary R. Welsh said...

Agreed, MC. He rushed to file the suit to preserve the evidence, Paul. The plaintiffs' attorneys are going to be greatly aided by the fact that you have two outside expert consultants paid for by the taxpayers that are examining the evidence and issuing reports that will no doubt become evidence in the legal proceedings. It doesn't get any easier for the plaintiff in that sense. From what has been reported, the wreckage has remained untouched since the rescue efforts that night and Thornton Tomasetti won't begin its on site work examining the wreckage next week.

marksmall2001 said...

I agree w/MC about the unfairness of Indiana law. Our choice of law rules operate further. If Indiana finds a specific law of another jurisdiction repugnant, our courts will give that law no force or effect. The old hypothetical involved an action to enforce provisions of a divorce decree from a country that recognizes polygamy. In this instance, if the couple's relationship had occurred in Vermont, for example, a jurisdiction in which same-sex marriage is recognized and given equal status, in Indiana in a wrongful death suit, defendant/defendants would have a colorable argument that the surviving spouse is not entitled to damages as a spouse. In other words, the survivor probably would receive nothing. I do not say I agree w/that outcome, but that is the way our law has been construed in the past.

Morning Constitutional said...

I've looked at the text of the Hawaii civil unions statute, and it clearly states that it will become effective in 2012, with no hint of any retroactive applications to people, for example, who went to Hawaii for some kind of application process, ceremony, etc. So it remains a mystery how this couple claim a status that the Indiana wrongful death statute should recognize.

Bob said...

Allow me to point out the obvious - which also is the point that makes the religious argument against gay marriage a moot point: Same gender couples can get married even in states that don't recognize it. I've been to several same gender marriages in Indiana.

I don't know the law behind it, however, if the point is to demonstrate to a jury that these two had a long-term committed relationship, I think a marriage ceremony would help to establish that-regardless of the recognition by the state.

Gary R. Welsh said...

The fact is, Bob, there are states that recognize same-sex marriages just like they do opposite-sex marriages. A license is issued as proof of the marriage. My point is that no marriage license could have been issued to the couple in Hawaii. That's a big distinction legally.