If You’re Going to Get Run Over, Do It in Jersey

If your 17-year-old daughter was run over by a school bus, had her pelvis and spinal column fractured and her abdomen crushed, and lost her leg, what would be a fair compensation for her pain and suffering? That was the question put before a Bucks County Common Pleas Court jury last week. The jury came back with a verdict totaling about $14 million.

At first blush, some may think it was a runaway jury meting out some form of jackpot justice. Others may say $14 million (minus legal fees and taxes) isn’t enough for nearly killing and disfiguring a young girl. But a closer look at the breakdown of the amounts is revealing: The jury awarded $338,580.49 for past medical expenses; $2,597,682.90 for future medical expenses; and $11.1 million for pain, suffering and disfigurement.

Notice that the damages were calculated to the penny. It shows the eight women and four men put lots of thought into determining the award. It says this in fact was not a runaway jury, as is often the case in places like plaintiff-friendly Philadelphia. Indeed, this trial took place in Bucks County, a moderate to conservative area.

Except there is one problem.

Ashley Zauflik, the now 21-year-old victim of the horrible bus accident, may never see most of that money. That’s because in Pennsylvania there is a state cap that limits the liability for school districts and municipalities at $500,000. That’s not even enough to cover the lifetime cost of a new prosthesis, which is estimated to be between $1.5 million and $2 million.

More troubling, if Ashley had been run over in New Jersey she would not have had to worry about a cap. But Pennsylvania’s law protects the schools and government at the expense of the victims. That is flat wrong and should be changed.

This is a classic case as to why caps don’t work, are arbitrary, and prevent fair justice. Damages should be left to juries to decide. No doubt there are cases where irresponsible juries hand out lottery-ticket verdicts without much thought. But that’s why there is an appeals process. For the most part, jurors take their job seriously and get verdicts and damage awards right.

If anything, caps just encourage bad behavior and negligence from the schools and governments that know, at the end of the day, their liability is limited. In this case, the cap has enabled the Pennsbury School District to avoid responsibility, and has forced Ashley to suffer for almost five years and endure what was surely a very emotional court trial.

Even more egregious, it turns out the school district was insured for $1 million, despite the $500,000 cap. After the trial, the district disclosed to Ashley’s attorney, Tom Kline, that it also has a $10 million umbrella insurance policy. No doubt a minor oversight. That’s $11 million in insurance money that should be available to cover most of the verdict.

Pennsbury should be ashamed of the way it has handled this case. One of its school buses ran over a student and nearly killed her. She lost her leg and will suffer physical and emotional pain for the rest of her life. Rather than do the right thing, the school district is essentially protecting its insurance company.

In his closing argument, David S. Cohen, the lawyer for the school district, urged the jury to limit the pain and suffering damages because Ashley has been able to return to walking, graduate from high school and take a family trip to Alaska.

As if that somehow makes everything all right.

Fortunately, Kline plans to challenge the cap. He believes the case could end up before the State Supreme Court. Getting the cap overturned would be the best thing to come from this sad case.