Fred Schultz Torts Law Blog on Lawyers.com

I recently read that the National Transportation Safety Board (NTSB) has issued its report on the Pacific Gas & Electric (PG&E) gas line explosion in California on September 9, 2010.  That explosion killed 4, injured 50, and caused significant property damage.  The NTSB laid a litany of failures at PG&E’s doorstep.  Part of the problem was that the pipeline had not been inspected so that weaknesses associated with age and/or use could have been identified.  Other problems included sloppy welds dating back to the 1956 installation, failure to install automatic shut-off valves, and delays in shutting off the flow of gas.  Tellingly, the board also chastised regulators at all levels for not better protecting the public.  Those regulators failed to test the aging pipelines for defects and didn’t uncover management problems at the utility.  NTSB Chairman Deborah Hersman, “It was not a question of if this pipeline would burst.  It was a question of when.”  No one ever looked at this line, or many others, to see if it was still safe.  This failure was one more example of failing American infrastructure, public and private.

There have been other well publicized disasters such as the Minneapolis bridge collapse on August 1, 2007 where a major bridge spanning the Mississippi River collapsed during rush hour traffic.  It turns out that the bridge had a significant design flaw that went undetected.  Compare this tragedy to a tragedy that was averted.  Just recently, the Sherman Minton Bridge (named after a former Senator and  U.S. Supreme Court Justice from Indiana) spanning the Ohio River and connecting Louisville, KY and New Albany, Indiana was temporarily closed.  An inspection detected a 2.5 inch crack in a major beam.  Significant renovations were performed but the bridge will not be reopened until thorough inspections are performed. 

Unfortunately, any discussion of the subject of inspections would not be complete without reference to the recent stage collapse at the Indiana State Fair.  The State Fair tragedy exposed a weakness in Indiana’s own inspection and permitting system.  Namely, no one was responsible to ensure the safety of any temporary structure on the state fairgrounds.  There were additional issues regarding the weather warnings, but no one knew whether the structure was safe for concertgoers or performers – even without severe weather.  According to an article from WRTV-6, it is likely that the stage was never inspected.  The Indiana Department of Homeland Security is responsible for inspecting many structures, but not temporary ones.  The City of Indianapolis requires permits for temporary structures, but does not inspect state property.  This gaping hole in oversight meant that no one verified the stage’s safety, even before accounting for weather concerns.

The obvious reason that construction and use permits are required is so that the safety of the structure can be verified, for the type of use, for the number of people using it, and for reasonably foreseeable weather conditions.  The reason that regular inspections of permanent structures should be required is to prevent failure and collapse due to foreseeable collapse and decay.  In other words, the purpose of inspections is not to add cumbersome regulations and layers of bureaucracy on businesses, it is a matter of public safety. 

What the Indiana State Fair tragedy exposed is not only a flaw in our state inspection process, but in our tort system, as well.  If these structures do fail, those hurt should be compensated for their losses and made as whole as possible.  However, in the case of the State Fair collapse, the victims will never see full compensation for their loss, at least not from the State of Indiana.  That is because there is a hard, fast, total cap on all damages owed by the state in the amount of $5 million.  This leaves an average recovery for the approximately 50 people who were killed and injured of only $100,000 per person.  Remember, this is inclusive of medical bills, lost wages, pain and suffering, etc. At least seven people have died, several more have permanent brain injuries, and numerous others have been seriously injured. 

Does anyone actually expect these damages cap to be adequate?  We don’t.  Caps on damages create an arbitrary atmosphere where there is a disincentive to perform inspections or to otherwise ensure all reasonable safety measures are being followed.  After all, if your liability is limited, so is your accountability.  Caps also put additional burdens on the very people who are harmed.  It adds insult to injury.  For those who were seriously injured, but not killed, their multi-week ICU bills cumulatively exceed the $5 million cap.  Just one of the seven wrongful death claims exceed Indiana’s cap when factoring in their expected lifetime earnings.  

The good news is that many others agree with us.  Tragedies often expose terrible flaws in our communities.  State Representative Ed Delaney agrees and is proposing legislation to increase the amounts available to the injured and their families.  While I would much rather see legislation to do away with Indiana’s Tort Claims cap, any discussion about raising it must certainly be considered progress for Indiana citizens.  Not because larger damage caps provide for better recoveries for injury victims.  Rather, because an increase in liability exposure will put extra pressure on the State of Indiana to take all reasonable safety measures in the future.  In the end, nobody wants another tragedy like the State Fair collapse to ever happen again.  Creating an atmosphere of accountability instead of one where the State is shielded from legal liability will help.