Liability Questions Linger in Fatal Indiana Fair Stage Collapse
BY STEVE TUCKEY, who has written on insurance issues for a decade for several national media outlets.
A so-called microburst weather event sweeps into Indianapolis earlier this month that results in the collapse of a concert stage at a fair, leaving five people dead and dozens of others injured.
Who compensates the victims and what insurance covers these costs?
Chicago-based attorney Kevin Durkin said that the liability of the state of Indiana, as owner of the site, would depend specifically on the tort immunity laws enacted by the state legislature.
"Many times if there is a policy of insurance bought for it then the immunity law does not apply since the government would not have to pay for the damages," Durkin said.
Immunity laws often have exceptions for wanton and willful misconduct, he said.
In Illinois, for example, such victims would have limited recourse in a court of claims, rather than a right to sue the state, he said.
The next group claimants could look at would be a variety of private contractors, such as the fairgrounds operator or the contractors responsible specifically for construction of the collapsed stage.
"If I was the state of Indiana, and I was putting together a show like this, I would require all these contractors to have substantial general liability insurance with the state named as additional insured," Durkin said. "All these people are viable defendants."
Possible areas of negligence include the lack of stage inspection, which an Indiana Department of Homeland Security spokesman said was not required for that kind of structure.
And while Indiana Gov. Mitch Daniels termed the microburst "freakish," there was sufficient warning that another event in the Indianapolis area was canceled at the same time after a weather warning.
"While there may have been no requirement to inspect the stage, the law has another standard, which is what is prudent under the circumstance," Durkin said.
Mark Dillard, senior vice president for Public Risk Underwriters of Texas, said the answer as to whether the state, fairgrounds operator or stage contractor will bear responsibility to compensate victims is simple: all of the above. "They will probably name the band before it is over with," he said ironically.
But a judge and jury will make the ultimate decision, including what role factors such as inspections, or lack thereof, and weather notifications will play in final claims settlements.
Plaintiff attorneys will "creatively and cleverly" make the case that everyone shares responsibility so as to trigger the limits of multiple policies."In the end, common sense, fairness and justice will ultimately prevail," Dillard said. "Or maybe not."
Mary Stewart, former director of research and development for the Fairfax, Va.-based Public Entity Risk Institute, said descriptions of the microburst led her to believe they were not common enough for emergency managers to anticipate.
If the families sue for wrongful death, they will have to claim that the state, the fairground operator and the contractor that built the stage failed to take every precaution to prevent the collapse. "I'm sure the first two parties will have hold-harmless clauses in the contract, leaving the contractor to take the lead in any suit," she said.
August 22, 2011
Copyright 2011© LRP Publications