First Lawsuit In Indiana State Fair Stage Collapse Poses Interesting Challenges

A northwest Indiana attorney has filed the first lawsuit of many expected to be filed less than one week following the tragic collapse of the stage rigging at the Indiana State Fair Grandstand prior to the start of the Sugarland concert. Kenneth Allen represents the estate of Tammy VanDam, who died instantly when the stage collapsed upon persons seated in the VIP area immediately in front of the stage as high winds from an approaching severe thunderstorm reached the fairgrounds, and VanDam's surviving same-sex spouse, Janeen Beth Urschel, who survived but sustained injuries. Allen told reporters at a press conference yesterday that he intends to challenge Indiana's wrongful death statute, which does not permit surviving same-sex partners to recover for the loss of their spouse. Urschel said she and VanDam were married in Hawaii about ten years ago according to a report by the Northwest Indiana Times:

Urschel, 49, said she and VanDam, 42, met in 1999 and were married in Hawaii in 2001 or 2002. Although the marriage is not recognized in Indiana, Allen said he probably will challenge that in court so she would be able to be recognized as any other spouse.
"We had so many plans and things we wanted to do," she said.
Allen said he was forced to file the suits quickly to secure an injunction to prevent evidence from being tampered with or destroyed.
The wrongful death suit filed on behalf of VanDam seeks $50 million plus punitive damages, while the suit on behalf of Urschel seeks $10 million plus punitive damages. VanDam's 17-year-old daughter was at Allen's offices during the news conference but decided not to face the media.
"This was a terrible tragedy that could and should have been prevented; the responsible parties must be held to account," Allen said.
It's not clear how VanDam and Urschel could have been married in Hawaii because Hawaii has never permitted same-sex marriages. In 1993, the Hawaii Supreme Court ruled that the state's marriage law was unconstitutional insofar as it failed to recognize same-sex marriages; however, voters later approved a constitutional amendment in 1998 that expressly gave the legislature the power to ban same-sex marriages. A law passed earlier this year will legalize the recognition of same-sex civil unions but not marriages entered into in Hawaii beginning next year. There are presently only six states that recognize same-sex marriages, including Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont. Indiana passes its Defense of Marriage Act in 1996, which bars the recognition of same-sex marriages. VanDam is survived by a 17-year-old daughter, who does qualify to pursue a claim for the loss of her mother under Indiana's wrongful death statute.

The victims' survivors face further challenges in recovering for the death and injuries of their family members. While the lawsuit Allen filed on behalf of VanDam's estate and Urschel names as defendants a number of defendants, the most likely defendant, the state of Indiana which operates the state fair, is not named. That's because Allen is first required to provide the state with a tort claim notice within 270 days after a loss occurs. The state has 90 days to notify a claimant of the approval or denial of their claim. A claimant cannot sue the state until their claim has been denied in whole or in part. Worse for the victims of the state fair tragedy are the severe recovery limitations imposed by Indiana's tort claim statute. No person can recover more than $700,000 per occurrence, and the total recovery of all persons claiming injuries from a single occurrence is capped at $5 million. Given the large number of victims in this case, at least six dead and more than 40 injured, the individual recoveries from the state are going to be relatively small.

For now, Allen's lawsuit is seeking a restraining order to prevent the state or the state fair commission from disturbing the wreckage from the collapsed stage rigging. The state has hired Thornton Tomasetti to study the wreckage and the events surrounding the collapse of the rigging to determine a cause for its catastrophic failure. Witt Associates has been hired to investigate the preparedness and response efforts of state fair officials.

Allen has named several defendants in his initial lawsuit, including the most obvious, Mid-America Sound Corp., which owned and operated the stage rigging equipment that collapsed during the storm. Allen has also named Live 360 Group, which booked the Sugarland concert, and Live Nation Entertainment, which owns TicketMaster. Not surprisingly, the owner of Live 360 Group, Dave Lucas, tells the Star that he believes the lawsuit is misdirected. "My thoughts and prayers go out to the victims," Lucas said, "but our company . . . had absolutely nothing to do with the (stage) roof. Zero. That's all I can say." Interestingly, Allen did not name the band or its promoter as defendants. Allen's lawsuit for the two victims is seeking $60 million in damages, $10 million of which he says represents punitive damages.