Ohio girl hurt at fair challenges Indiana damages cap

Attorneys for a 13-year-old Ohio girl hurt when a stage collapsed at the Indiana State Fair argued Monday that the state's cap on liability damages is unconstitutional and should be thrown out by the Indiana Court of Appeals.

Jordyn Polet of Cincinnati rejected Indiana's offer of $1,690 to challenge the $5 million cap on total damages paid to victims of the 2011 collapse, which occurred when high winds blew down rigging before a concert by the country duo Sugarland. Seven people were killed and more than 100 were injured.

The teen's attorney, Robert Peck, argued the cap on total damages from a single incident means people are unconstitutionally denied equal treatment, WIBC-FM 93.1 and WISH-TV Channel 8 reported. He said that if she had suffered the same injury but had been the only casualty, she could have sought up to the $700,000 in individual damages.

"The court understands the issues," Peck said after the hearing. "It's now in their hands."

The three-judge panel did not rule immediately after hearing the arguments from the teen's side and Indiana Solicitor General Thomas Fisher, who defended the state cap.

Jordyn, who was 10 at the time of the collapse, sustained leg and ankle injuries and suffers from post-traumatic stress disorder, court documents state. Her sister and mother sustained more serious injuries and both accepted settlements. The $5 million paid to about 62 victims was supplemented by an additional $6 million for 59 victims approved by the General Assembly in 2012.

Because the maximum amount of money approved under state law already had been paid, Marion County Judge Theodore Sosin ruled in March that the cap is constitutional and the state and other defendants were not liable to pay Jordyn's claims. Her appeal of that ruling was the basis for Monday's oral arguments.

Judges questioned whether the cap violates the law requiring open access to courts. Once the teen turned down the settlement, there was no money left for her to sue for.

Fisher argued Jordyn's offer was equal to everyone else who did not suffer serious permanent injuries: 65 percent of her medical bills, with no compensation for emotional distress. He argued the Indiana Supreme Court has explicitly given legislators the power to limit the state's liability, to ensure a catastrophic incident doesn't bankrupt the treasury.

If the appeals court sides with the teen, other state fair victims could be allowed to file claims for additional compensation. The case could also set new precedent for the amounts of financial damages awarded in tort lawsuits in Indiana.