by Howard Stephenson
The Crash of a Utah State University van last week in which eight men were killed and two critically injured has been on the minds of many Utahns. News stories, talk radio commentaries and letters to the editor have focused on what went wrong and how such accidents might be prevented.
One of the most tragic elements of this story is the fact that the insurance coverage of the state-run university is so limited that the losses to the families of both the dead and the survivors are certain to be magnified by extreme financial hardships. The low levels of liability insurance are encouraged by current Utah government immunity laws.
Under these laws, medical costs for the survivors and economic losses to families of the deceased are limited to a combined amount of approximately $1.1 million. When this is divided by ten parties, the expenses are likely to exceed the caps very quickly.
About a week prior to this accident, Utah Judicial Watch (UJW), a newly formed non-profit dedicated to achieving greater justice within our court system published their first newsletter, The Watchman, which contains an article exposing Utah’s unfair government immunity laws. (See the complete newsletter at www.utahjudicialwatch.org)
THE KING CAN DO NO WRONG?
UJW President Petter Olsen explained in The Watchman that Governmental immunity is the ability for a government to make itself free from lawsuits or liability for a wrong that it has committed. The concept of governmental immunity is not new. In fact, its origin in the United States dates back to a series of laws created by judges in England called English common law, Olsen explained.
He said the old English adage behind the theory of governmental immunity was: the king could do no wrong. It was articulated in Blackstone’s Commentaries on the Laws of England, which stated that “the king … is not only incapable of doing wrong, but even of thinking wrong.” When this nation was formed, most states adopted English common law, and the concept of governmental immunity was adopted into American law as well. While we no longer hold any illusions about the infallibility of government, governmental immunity still exists today.
GOVERNMENTAL IMMUNITY IN UTAH
The UJW newsletter chronicled the history of Utah’s government immunity: “In 1965 the Utah Legislature codified the unwritten common law of governmental immunity into a written set of laws known as the Utah Governmental Immunity Act. The act provides that all governmental entities, including school districts and local governments are immune from any liability for any injury that it or its employees cause. Because a state government can only be sued if it waives its right to immunity, Utah courts have interpreted this as allowing a government to place limits on the amount of damages they can be liable for.”
Utah limits the maximum amount of damages that may be recovered from the negligent acts of its employees. Although the maximum amount of damages allowed grows with inflation, the current amount is capped at $553,500 per person and cannot exceed a total of $1,107,000 per accident. Mr. Olsen said at fist glance this would seem to be an adequate amount of compensation, and in most cases it is. “However,” he said, “past events have shown that this is not always the case, especially if the accident is catastrophic, or involves multiple people.”
He gave an example of how this cap can be easily exceeded, which is strikingly similar to the USU van accident: “On November 5, 2000 five students from the Highland High School Debate Team were traveling home from a debate tournament in a van driven by a school district employee,” Olsen said. “Due to his own negligence, the school employee lost control of the van causing it to flip several times and ejecting several of the students from the vehicle. Two of the students were killed as a result of the accident and the remaining three were left severely injured.”
Olsen explained that at the time of the accident, the Utah Governmental Immunity Act limited damages for an accident to $500,000. Both the court and the school district acknowledged that damages, injuries and loss of life for the accident were well over $500,000. The Utah Supreme Court agreed with the school district’s argument that it did not have to pay damages over $500,000 because the school was a “governmental entity” and therefore protected by governmental immunity.
SOLUTION: AMEND THE LAW
Utah Judicial Watch supports a statutory change that could serve as a compromise to alleviate some of the obvious injustices created by the Utah Governmental Immunity Act. In my role as State Senator I have pre-filed legislation which would increase the damage cap to $1,000,000 per person and do away with the maximum total damage cap per accident. Thus, when multiple people in an accident are injured, they would no longer be forced to split an arbitrary damage limit. Instead, each individual would be compensated based on his or her actual damages. Possible exposure to the state would still be minimized by the fact that no single person’s claims could exceed $1,000,000.
Supporters of the current Utah Governmental Immunity Act argue that the act serves the public by not tying up public funds for the purposes of litigation. Mr. Olsen points out that while it is certainly desirable for public funds to benefit the public, the immunity act ensures that victims, who have already been injured, will not be left holding the check for someone else’s negligence. The new legislation is beneficial to Utah citizens because it ensures that all the costs of public services would be spread to those who benefit from the services, instead of unfairly falling on those who have been harmed as a result of the provision of those services.
Some may fear that such legislation would open the floodgates for litigation against the government. However, I believe this is not a legitimate concern. Relatively few accidents justify awards above maximum damage caps so government is already protected in the majority of lawsuits against it. But when major accidents do happen, as in the case of the five Highland High School students or the USU students, the results can be devastating for the victims and their families.
Mr. Olsen explained that those who are most seriously injured end up bearing the greatest burden to limit government costs. He said the result is a vicious policy. “Those who most need a full remedy to deal with the devastation wreaked on their lives and families because of the severity of the injuries, are denied that recovery and shoulder the entire burden of protecting the government’s treasury, while those whose injuries are less life altering receive full compensation for their injuries and shoulder no burden at all.”
The proposed legislation would encourage local governments to enact similar preventive measures that private individuals and businesses use every day. When a private citizen or employee of a business is negligent and causes an accident, he or the company he is working for is liable for all of the damages. I believe government entities should experience similar liability.
UJW reminds us that there are no damage caps to protect small businesses or individuals, and yet, businesses continue to be successful and operate in Utah and individuals can afford to drive automobiles on the roads. “The potential danger of damages resulting from accidents is affordably lessened by insurance and enacting policies to ensure safety,” Mr. Olsen said. Government can and should be held to similar standards as the rest of us because, despite the ancient adage ‘the king can do no wrong,’ our government is just as fallible as the rest of us.”