Cyrus Dugger

Tort Victim Tragedies Continues with its Fourth Edition

I took a quick break from this series for a few weeks, but it’s back now, and more depressing than ever.

If you’re reading this series for the first time, the previous editions are linked to below.

This series may shortly become known as Tort Reform Tragedies, as I realize the name may be more fitting.

Each week (first edition, second edition, third edition) I will highlight the case of an injured person who was (or likely will be) denied full justice because of changes made to state law by the national anti-civil justice movement (a.k.a. the “tort reform” movement).

Unbeknownst to most Americans, their right and their ability to access the courts are under assault from what is truly a mass movement by business interests to shield themselves from liability for their misconduct.

This tort “reform” movement frames its agenda as reasonable reform geared to protect corporations from what they describe as “frivolous” lawsuits which drive up the cost of business and hurt the state’s economy.

In most of my posts, I will be addressing the fallacies of the anti-civil justice movement’s arguments. However, every week, I will do something unique and perhaps unprecedented.

One of the strengths of the anti-civil justice movement is its ability to put the spotlight on specific ludicrous sounding lawsuits in order to characterize the entire civil justice system as “out of control.”

As I’ve described before in my previous post “Why You Should be Able to Sue McDonald’s if You Spill Coffee on Yourself,” and as I will continue to describe, often these characterizations distort and re-tell critical aspects of these cases which would otherwise support a finding that they were not frivolous.

One organization has a representative list of said spotlights.

This constant media barrage of outrageous lawsuits has shaped the public opinion against the very civil justice system which protects us.

As a response to this anti-civil justice media barrage, each week I will highlight the other side of this coin: the real victims who are left without access to full justice because of the effects of the laws pushed through the state legislatures by the anti-civil justice movement.

Please join us each week to read incredibly sobering stories regarding the effects of the anti-civil justice movement on real people’s lives and families.

This week highlights the case of Trudy Roy, who was highlighted in Jordan Weissmann’s article “Other Side of Tort Reform: Alabama Woman Hurt By Award Cap” , August 29, 2006

Swollen and limp, Trudy Roy’s left arm hangs dead at her side. With its nerves shredded beyond repair, the limb is little but a source of pain for the 68-year-old former librarian, a constant numbness and ache, like the feeling of Novocain wearing away.

“I wish they would cut it off,” Roy said.

On May 19, Roy was struck by a police motorcycle as it jumped ahead of a parade of runners on Central Avenue in Homewood…

She stopped and chatted with children watching the parade, then waited before one of the officers motioned her across the street. She was midway when officer Jerry Shuttles slammed into her. He had sped to the front of the pack and, seeing Roy at the last moment, attempted to swerve, leaving a 40-foot skid mark and bucking himself from the bike.

Roy’s 118-pound body sailed 10 feet in the air and 20 feet across the road…Contorted and bleeding, she lay moaning, repeating, “He told me I could go, he told me I could go.”…Since then, she has been shuffled among two hospitals and a nursing home, undergoing four surgeries to mend her mangled left side.

Doctors are fighting to save her leg, which was broken in five spots and is infected. It is hard to tell whether it will ever work again. But her arm, they say, is simply lost. They can only hope that it one day repairs itself.
For Roy’s trauma, Homewood has offered $100,000, enough to cover less than half of her unpaid hospital bills. Nonetheless, it is the city’s final offer because, as the Roy family has unhappily discovered, a 29-year-old tort reform law protects it from paying more.

The little known act, Alabama Code Section 11-93-2, caps dollar awards in lawsuits against local governments at $100,000 per plaintiff and $300,000 per incident, while preventing suits against individual employees.
When it was adopted in 1977, the cap was worth almost four times more than today. But because it was not indexed to the cost of living or inflation, its value has stagnated, falling among the lowest such caps in the country.

In three-quarters of U.S. states and half of the Southeast, Roy would be able to seek greater damages.

This case highlights the unjust effect that overly restrictive municipal government liability caps can have. A cap on liability means that however egregious the conduct of a city employee, the city will not have to pay more than X capped amount.

Just as corporations are more careful when they can be held to account for damages in court for their harmful or fraudulent practices, so too are municipal governments. When even those city employees hired with our tax dollars who are supposed to be acting in the public interests cannot be held to account, who else can be?

Moreover, aside from this larger public policy point, the case here highlights the simple humanitarian needs of those harmed by municipal governments.

For Roy's five children and their families, the cap has bred uncertainty and frustration. Federal law dictates that what money they receive go to help cover Medicare's costs, which will leave nothing to provide for their mother's long-term care.

"Homewood is someone who could help my mother, and they're hiding behind the cap," said 43-year-old Mike Roy, who works as a building inspector for Vestavia Hills. "We're just asking for her to be taken care of."

Even if you are for municipal liability caps, you surely aren’t for the non-adjustment of caps over time based on inflation. (The Supreme Court of Louisiana recently reached a similar conclusion, Louisiana’s Medical Malpractice Cap Ruled Unconstitutional)

When it was adopted in 1977, the cap was worth almost four times more than today. But because it was not indexed to the cost of living or inflation, its value has stagnated, falling among the lowest such caps in the country. Other states have caps, but few as extreme as Alabama’s “usually somewhere in the range of $250,000 to $500,000 per individual. The impetus for these caps is that many have argued that they keep the city’s insurance premiums low, and thereby save taxpayer money.

However, recent empirical evidence rebuts this assumption as discussed in Weismann’s article:

Conventional wisdom says the caps keep cities' insurance premiums down, saving taxpayers money. Others say it's impossible to show the relationships between caps and insurance rates. "I don't know that anyone can authoritatively comment at this point on the real impact of tort caps," said Harold Pumford, executive director of the Association of Governmental Risk Pools. There just isn't enough information available to tell, he said. Until recently, most of the data on the subject has been gathered by insurance companies and trial lawyers, who keep the information guarded for business purposes. When legislatures consider tort reform bills, they rely on these groups for their facts. Furthermore, most companies keep track only of regional statistics. A project to create the first national database is just now under way. The group undertaking it, called the Public Entity Risk Institute, was created with money from a class-action suit brought by 20 state attorneys general against several insurance companies. The group is compiling tort claims data from across the country to answer questions such as just what caps do to insurance rates. With about 10 percent of cities reporting so far, the institute has found most lawsuits fall well below even Alabama's $100,000-per-person and $300,000-per-incident limit. The average claim paid by a city for a wrongful police action was $43,622. The average for a government vehicle accident was $9,278.

The largest suits and highest rewards mostly come from cases involving employment practices, an area not covered by any state cap.

Surely you and yours are worth more than $100,000?

If a city is responsible for seriously injuring somebody they should pay for it, just like everybody else.

To read a post by Justinian Lane on the same incident, click here.

If you or your organization is interested in learning more about or working on these types of civil justice issues, please feel free to contact me at cdugger@drummajorinstitute.org.

Cyrus Dugger
Senior Fellow in Civil Justice
Drum Major Institute for Public Policy