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Girl Injured at State Fair Loses Damages-Cap Spat

INDIANAPOLIS (CN) - A child who rejected a settlement offer regarding injuries she sustained at the 2011 Indiana State Fair suffered a blow in her civil case Wednesday.

Seven had died at the Indiana State Fair in 2011 when severe thunderstorm winds caused the stage's roof to collapse on the crowd.

Since Indiana law subjects governmental entities to a $5 million aggregate-liability cap for all persons injured in a certain occurrence, Indiana had offered each of the 65 injured at the state fair a portion of that $5 million.

While 64 claimants accepted their settlement offers, Jordyn Polet, a Cincinnati girl who is now 13, alone declined to accept the $1,670 distribution.

The settlements exhausted the $5 million dollar cap, and Indiana claimed that the Indiana Tort Claims Act (ITCA) thus immunized from the ensuing civil suit that Polet's parents filed.

After the Marion Superior Court refused to grant the Polets judgment on Indiana's affirmative defense, a three-judge appellate panel affirmed Wednesday.

Though the Polets claimed that the limits to Indiana's tort liability violate her right to court access, the appellate panel quoted precedent that says a "statutory provision cannot be deemed repugnant to the constitution merely because it restricts the amount of damages available to the class."

"The state notes Polet was not precluded from pursuing a claim; in fact, she did and the State offered her a settlement," Judge Melissa May wrote for a three-person panel. "It was not lack of access to the courts that prevented Polet's recovery - it was the statutory limit on the state's liability."

May added that "the aggregate liability cap is a rational means to achieve the legitimate legislative goal of protecting the public treasury."

The court also rejected the Polets' claims of disparate treatment.

"In limiting the amount recoverable by individual and by incident, the ITCA applies equally to all claims and all incidents, and both categories Polet defines are subject to the individual and aggregate caps," May wrote. "We therefore cannot find there is a classification in the case before us that implicates the equal privileges clause."

May added: "The ITCA's aggregate cap does not classify tort victims, but only occurrences, and the legislature may properly decide that occurrences that generate over five million dollars in liability place too great a burden on the treasury."

Judges Nancy Vaidik and Ezra Friedlander concurred in the decision.

Indiana Attorney General Greg Zoeller defended the damages cap in a statement.

"Unlike a private company being sued for damages, state government under sovereign immunity cannot be sued except under the limitations and deadlines the Legislature permits, since this is taxpayers' money and the taxpayers did not cause the loss," Zoeller said.

Polet was represented by Anthony Patterson from Indiana and Robert Peck from Washington, D.C.

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