The first 911 call gave a hint of the horror to come. As the calls flooded in, emergency dispatchers knew that tragedy had struck. A miniature train named "Sparkles" had overturned, no doubt with children on it. The first desire, the first thought, the first goal was to help the children - help those children - help anyone that was on that train who might be hurt. Those good emergency workers from the 911 dispatcher all the way to the physicians that dealt with the death and all the carnage quickly forgot they were just doing a job. They reacted as human beings. Professional no doubt, but the human element was pervasive. They reacted professionally to those injured, and later emotionally to the death of one child and the broken bodies of so many others. Help the children. Help everyone.
At some point, these safekeepers and healers gave way to the bean counters, adjusters and self serving legislators. The health care providers who forgot they were "just doing a job" gave way to a motley crew of state representatives who argued that all 28 injured (as that was the final count) in that terrible wreck would split $600,000. Given the death of one child and the millions of dollars in medical expenses of the injured children combined, sharing $600,000 is an insult to these South Carolina families. The state then whispers out of the sides of its mouths claiming, "I'm just doing my job." As Cool Hand Luke said, "Callin' it your job, old Hoss, sure don't make it right."
As horrible as the State's position seems, it isn't even putting the forth the money that our Supreme Court states that it should. All is not lost. Not only should the injured not have to split $600,000, the law says they don't have to do so. While the caps are ugly and grotesque as they exist, there is an avenue for recovery well above $600,000. On June 6, 2011, The Supreme Court of South Carolina said so.
In Boiter v. South Carolina Department of Transportation and South Carolina Department of Public Safety, the Court was faced with reviewing a verdict of $1.875 million dollars arising out of 2 people being injured as a result of two separate occurrences of negligence. Larry Lee Boiter and Jeannie Boiter were severely injured when the motorcycle they were riding collided with a car at an intersection near Inman, South Carolina. The red signal light bulbs had burned out earlier that day. The Boiters proved negligence on the part of the South Carolina Department of Transportation (SCDOT) for not implementing an appropriate re-lamping policy to replace the bulbs before they burn out and negligence on the part of the South Carolina Department of Public Safety (SCDPS) for failing to notify a trooper to report to the scene and direct traffic. There were two victims and two occurrences of negligence. The lower Court, after post trial motions, held that there was only one occurrence and reduced the verdict to $300,00 for each victim, for an aggregate of $600,000. In sum, the state representatives argued that the law only provides an avenue for recovery for all victims totaling $600,000. Sound familiar?
The Boiters argued that the lower Court erred in failing to find two separate occurrences in the two separate acts of negligence committed by SCDOT and SCDPS. The Supreme Court agreed and sated, "the facts here present a classic case of two occurrences." Writing for the Majority, Justice Hearn wrote, that the "Boiters urge this Court to focus on the number of negligent acts; in contrast, Respondents contend we should look to the number of injuries caused by those acts." Sound familiar?
The Supreme Court was "persuaded that two independent and separate acts of negligence occurred here - one by the SCDOT and one by SCDPS. There is no indication that the . . . actions combined to form a single act of negligence." The SCDOT did not have a re-lamping policy in place and SCDPS was negligent in not following its own policy to notify a SCDOT technician when a light burned out. "We cannot see," the Court wrote, "how SCDOT's negligent act 'unfolded' into SCDPS' negligent act." The Court correctly noted that no causal connection between the actions of SCDOT and SCDP could be found. Had the jury not found SCDOT negligent, the verdict against SCDPS could still stand, and the converse is also true." Because of this, each victim is entitled to his or her own personal cap up to $600,000. Let that sink in. Each victim.
In law school and in the practice of law, we often ask of cases, "is it on point?" All this means is, does it directly address a question in a case that we are investigating or is it slightly different. The Boiter case is on point with the train case. In the Train cases that have followed in the wake of the investigation there have been found to be multiple occurrences of negligence. For instance, the inspector has already admitted to not properly inspecting the train. The driver of the train has already admitted to driving the train too fast. There are many other instances as well. A verdict against the driver of the train could stand without one against the inspector and vice versa. The cases that will arise out of the wreck of "Sparkles" will follow in the progeny of Boiter. The State knows this. Why hasn't it said anything? Just doing its job?
Based upon the Boiter, each victim is entitled to a cap of $300,000 with an aggregate cap of $600,000 for each victim because of multiple occurrences. All is not lost.
Blake Smith is a partner in the law firm of Parham Smith & Archenhold LLC. He can be reached at 864-990-4581 and 15 Washington Park, Greenville, South Carolina, 29601.