Lawyer of in­jured Penns­bury stu­dent asks court to elim­i­nate cap on li­a­bil­ity

The Willow Grove Guide - - OPINION - By Cary Beavers

cbeavers @jour­nalregis­ter.com A case be­fore the state’s Com­mon­wealth Court in­volv­ing a 17-year-old Penns­bury High School stu­dent in­jured in a bus ac­ci­dent in 2007 could have im­pli­ca­tions on mu­nic­i­pal and school district en­ti­ties through­out the state.

An at­tor­ney rep­re­sent­ing then stu­dent Ash­ley Zau­flik, who was in­jured when she was struck by a Penns­bury school bus in Jan. 2007, ar­gued Feb. 11 that a cap on dam­ages in­volv­ing gov­ern­men­tal en­ti­ties in Penn­syl­va­nia is un­con­sti­tu­tional.

The ar­gu­ment, made in front of the court, stems from the re­duc­tion of Zau­flik’s orig­i­nal jury award of $14 mil­lion to $500,000, the max­i­mum al­lowed un­der a statu­tory cap on dam­ages when some­one sues a gov­ern­men­tal en­tity in Penn­syl­va­nia.

As a re­sult of the ac­ci­dent, which oc­curred on the cam­pus of Penns­bury High School, Zau­flik’s left leg had to be am­pu­tated 6 inches above the knee.

In Dec. 2011, a jury of eight women and four men unan­i­mously awarded her $14 mil­lion, an award Zau­flik’s at­tor­ney, Thomas Kline, ex­pected to be chal­lenged by the school district.

The school district ap­pealed the de­ci­sion, and Judge Robert Mel­lon sub­se­quently re­duced the dam­ages to $500,000 in May in ac­cor­dance with the cap.

“There is no dis­pute that the cir­cum­stances of this case cre­ate an un­fair and un­just re­sult,” Mel­lon wrote in his opin­ion. “De­spite the in­her­ent in­jus­tice that ap­pears in this case, this court is con­strained by prece­dent.”

But Mel­lon also wrote that it his be­lief that an in­di­vid­ual’s right to “full com­pen­satory re­cov­ery” in a law­suit is de­cid­edly not out­weighed by the government’s in­ter­est to pre­serve the pub­lic against un­usu­ally large re­cov­er­ies in such cases.

“The court is of the opin­ion that a re-eval­u­a­tion of the con- sti­tu­tion­al­ity of the statu­tory cap on dam­ages on equal pro­tec­tion grounds is nec­es­sary,” he added.

Kline pointed out that Zau­flik won’t even see the full $500,000.

“She has to share the money with the oth­ers who were in the ac­ci­dent,” Kline said. “She has to cover the costs of the law­suit and pay her at­tor­ney. She ba­si­cally ends up with 1 or 2 per­cent of the jury ver­dict. That’s tan­ta­mount to gov­ern­men­tal im­mu­nity.”

Kline was re­fer­ring to the 1973 Penn­syl­va­nia Supreme Court de­ci­sion that re­moved the im­mu­nity from law­suits that government en­ti­ties, such as a school district, had en­joyed. In 1980, the state leg­is­la­ture passed the law that lim­ited gov­ern­men­tal li­a­bil­ity to $500,000 that still stands to­day. In 1986, a “di­vided” state Supreme Court found the cap to be con­sti­tu­tional, ac­cord­ing to Kline.

“Prior to Ash­ley Zau­flik, no­body had got­ten a jury ver­dict [abovethe­cap],”Kli­ne­said.“The cap was akin to im­mu­nity.”

Still, op­po­nents of the cap’s re­moval say that, quite sim­ply, school dis­tricts, town­ships and bor­oughs couldn’t af­ford ver­dicts as large as Zau­flik’s. Fur­ther, they say, Zau­flik and plain­tiffs like her are bark­ing up the wrong gov­ern­men­tal tree.

“I sus­pect that if the cap was de­clared un­con­sti­tu­tional ¬— not­with­stand­ing 30 years of Supreme Court cases to the con­trary — the Gen­eral As­sem­bly might be con­vinced to pro­tect the com­mon­wealth and its sub­di­vi­sions by adopt­ing com­plete im­mu­nity,” Penns­bury School District at­tor­ney, Stephen A. Cozen said. “It’s a case of ask­ing for too much. Tom and oth­ers should be mak­ing their case to the leg­is­la­ture, not to the courts.”

Ac­cord­ing to Kline, though, the leg­is­la­ture al­ready has its fin­ger­prints all over this case.

“The power to re­duce ver­dicts is ex­clu­sively in the hands of the courts,” Kline said. “Here, the leg­is­la­ture im­posed a re­duc­tion by statute. The con­sti­tu­tion of the Com­mon­wealth of Penn­syl­va­nia pro­hibits this.”

All this led to Kline’s Com­mon­wealth Court ap­pear­ance last week. Kline vowed not to stop at the Com­mon­wealth Court level, the sec­ond rung on the state’s three-level ju­di­ciary lad­der.

“The next step is an ap­peal to the Supreme Court, if we are un­suc­cess­ful in the Com­mon­wealth Court,” Kline said.

Whether­anap­peal­tothes­tate’s high­est court will be nec­es­sary might not be known for a while, said Stu­art Knade, ex­ec­u­tive di­rec­tor of the Penn­syl­va­nia School Board­As­so­ci­a­tion.

“There won’t be a de­ci­sion any­time soon,” Knade said. “The com­mon­wealth court is pretty quick, but it could still be sev­eral months. The [Zau­flik] fam­ily prob­a­bly won’t get the de­ci­sion they want from the Com­mon­wealth Court.”

Knade ref­er­enced an “Ami­cus Cu­riae,” or “friend of the court,” filed by the PSBA as part of the case. The doc­u­ment spelled out the or­ga­ni­za­tion’s opin­ion on why the cap should be up­held.

Penn­syl­va­nia courts have not only up­held the cap, they have re­fused to even in­crease the amount, Knade said. In its Ami­cus Cu­riae, the or­ga­ni­za­tion said school dis­tricts, town­ships, bor­oughs and other gov­ern­men­tal en­ti­ties could be headed down a slip­pery fi­nan­cial slope should the court break from its his­tory of up­hold­ing the cap.

“Were this Court to … find that Sec­tion 8553 is un­con­sti­tu­tional … it would foist a sig­nif­i­cant fi­nan­cial bur­den upon lo­cal gov­ern­ments — i. e., the need to ac­count for the prospect of un­lim­ited tort li­a­bil­ity — at a time when they can ill af­ford it,” the doc­u­ment reads. ‘Fur­ther, such a de­ci­sion would im­pact ev­ery cit­i­zen of the Com­mon­wealth of Penn­syl­va­nia, since, as tax­pay­ers, they will ul­ti­mately foot the bill for th­ese un­capped and po­ten­tially bound­less jury ver­dicts.”

Cozen said if the cap is found un­con­sti­tu­tional, the fall­out could neg­a­tively im­pact vic­tims who find them­selves in sim­i­lar un­for­tu­nate cir­cum­stances.

“Ev­ery­one in the fu­ture is go­ing to be com­pletely and to­tally out of luck,” Cozen said.

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