Who will pay when the lawsuits begin?
In man-made disasters, such as train wrecks, airplane crashes and bridge collapses, investigators seldom find that one mistake solely caused the tragedy. Typically, smaller errors that individually would not have caused the calamity combine; they set off a chain of events that leads to disaster. Government entities, private companies and individuals who are links in that chain may face potential lawsuits.
How much the victims and their families may collect will depend on whether the state or private parties are at fault. The state of Minnesota shields itself in a nearly impenetrable blanket of governmental immunity. Damages are capped at $1 million, not per person, but for all victims.
"Under the present law, people cannot get justice," says Minneapolis attorney Chris Messerly. "They cannot get compensated no matter how outrageous the act by the state or governmental subdivision. The law is just stacked against Minnesotans and that's the way it is."
Messerly says families have contacted him about potential lawsuits. He says if his law firm takes the cases, it would likely waive attorneys' fees. Messerly says he's encouraged other attorneys who represent victims to waive attorneys' fees as well.
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Government immunity originates with the ancient concept that the king is infallible, which translated into the belief that the state can do no wrong. In recent times, governmental immunity is based on the notion that people might be too generous with the state's money.
Last week, the National Transportation Safety Board said it had observed "a potential design problem" with gusset plates at particular locations on the bridge. Gussets are critical members of a truss bridge.
"Suits regarding faulty real estate and the bridge is real estate have to be brought within 10 years of construction," according to University of Minnesota law professor Fred Morrison. "So what that says is you're not going to go back to the original design or construction to find liability."
"It's preposterous to think that it's going to cost $200 million to replace brick and mortar and steel and yet collectively all the people that are injured and killed get a million dollars."
In 1983, the Interstate 95 Mianus Bridge in Greenwich, Connecticut collapsed, killing three people. Richard Bieder, who represented some of the victims, says Minnesota's 10-year time limit is much too short.
"Same thing happened and we wanted to sue the architect because it was designed in such a way that it was difficult to see the defect when you were inspecting the bridge," according to Bieder. "It's incredible to hear that you have the same one... even though you're designing an object that's destined to last for 100 years or 50 years without failure."
Victims' lawyers are likely to target private businesses that had recent contact with the bridge, according to Minneapolis attorney David Potter, who has largely defended companies in mass lawsuits. Potter advises companies who believe they're responsible to do the right thing.
"I think that in the end, at least the most successful defenses that I've done, is where the community believes that the responsible actors, the people that the community would think are responsible, reached out and really tried to take care of the people that are hurt and then are left with a few lawsuits that if you do it right are seen as greedy or overreaching," Potter said.
Potter said if the state is partially responsible, that will complicate the usual strategy. He says it would be hard for private companies to resolve the situation without knowing what the state is going to do. That means any compensation for the victims could be mired in the court system for years.
Last week, Gov. Tim Pawlenty said he was interested in creating a victims' compensation fund, but he didn't offer any specifics. The Legislature has an option of last resort for residents harmed by the state but who can't get help through the legal system. It's called the claims committee. One of its chairmen, Sen. Ron Latz, DFL-St. Louis Park, says right now any discussion of a fund for victims is premature, but he said the committee is looking to other states that have handled comparable situations.
"In New York, they dealt with the World Trade Center (attack) by setting up a special compensation fund that was publicly funded. There have been other instances where there's been no government response. At Columbine there were no compensatory arrangements made. In others there have been privately-funded efforts not coming out of public dollars... once we put together our options will sit down and try to figure out the best thing to do," he said.
The man who created the special compensation fund for the World Trade Center victims is skeptical that such a fund would work in Minnesota, or anywhere else for that matter. Washington D.C. attorney Ken Feinberg says the 9/11 fund was unique. He said at first blush such a fund in Minnesota would appear to make sense. But upon reflection, it would also set a precedent.
"Where does that line end?" he asked. "And on what principle basis do you say victims of a bridge collapse (deserve) public compensation; victims of a tornado; victims of state malfeasance in speeding; or failure of a fire inspector to adequately inspect a home before it burns to the ground killing its residents? What about a special compensation for those victims? There's the slippery slope you see."
Several state legislators said they're not ruling out assistance for victims of the bridge disaster and hope to fashion a solution that's going to work best for Minnesota.