Sometimes teachable moments happen at the very worst times and only with terrible costs. When it comes to Ohio’s draconian limits on legal rights, we are clearly at one of those moments and can only hope Ohio’s lawmakers take notice.
Back in the mid-1980s, at the behest of the insurance industry and other corporate special interests, Ohio enacted a boatload of anti-consumer “tort reform” measures that severely limited victims’ rights in that state. In 1999, Ohio’s Supreme Court struck down most of them as unconstitutional. Without missing a beat, a coalition of out-of-state corporate interests came into the state, dumped money there to influence the judicial elections, and eventually ousted the pro-consumer Supreme Court judges who struck down these laws. Then, in 2004/2005, the legislature re-passed many of the unconstitutional laws - but the newly-bought corporate court has upheld them ever since.
One of those provisions was a “cap,” or limit, on compensation to victims who suffer non-economic injuries. Ohio’s cap means that child rapists are off the hook for the harm they cause their victims.
Now, the impact of another one of those cruel “tort reform” laws is becoming clear. You may recall the horrific Ohio State Fair “Fire Ball” catastrophe in July, which killed Tyler Jarrell, a high school student who had just enlisted in the Marines, and injured (some severely) seven others including four teenagers. Jarrell’s attorneys are conducting a thorough investigation of this shocking event, clearly caused by someone’s negligence or recklessness. But it turns out, those responsible may be off the hook thanks to that 2005 “tort reform” law.
Specifically, in 2004 Ohio re-passed a “statute of repose” for harm caused by defective equipment older than 10 years - a law earlier struck down as unconstitutional. The statute of repose completely cuts off liability for the manufacturer or seller of defective equipment after this arbitrarily-established number of years. That means injured victims or their families can recover nothing (not even for health costs or lost wages) if the harm is caused by anything other than manufacturer fraud.
Statutes of repose are atrocious laws. The arbitrary liability cut-off applies no matter how serious the injuries, how many injuries have been caused over the years by the same product, or how reckless the actions of the wrongdoer are. It covers products with expected lives much longer than cut-off dates, products like nuclear power plant components, medical devices, elevators, home appliances, playground equipment, farm equipment, freight trains, trucks - and of course, faulty amusement park equipment.
Many states have found statutes of repose to be unconstitutional, as Ohio once did. And Ohio’s 10-year cut-off is one of the most restrictive in the nation, written courtesy of the corporate-funded far-right group, the American Legislative Exchange Council (ALEC).
As explained in the Columbus Dispatch:
What was then called “tort-reform” legislation now will “make the fight for justice much more difficult to achieve” for the victims of the ride failure, said Columbus attorney Michael Rourke. He represents Tamika Dunlap, a 36-year-old woman whose legs were shattered when one of the ride’s gondolas broke loose and crashed to the ground on July 26.
Lawsuits that are certain to be filed in the case will be affected by legislation that took effect in 2005, Rourke said.
That legislation got much of its attention for placing caps on jury awards for businesses and individuals in lawsuits. But the law also set a 10-year limit on a manufacturer’s liability for a product’s defects.
The limit, known as a statute of repose, would appear to protect KMG, the Netherlands-based manufacturer of the Fire Ball. The ride that broke apart was built in 1998.
Under the law, “No cause of action based on a product-liability claim shall accrue against the manufacturer or supplier of a product later than 10 years from the date that the product is delivered to its first purchaser or lessee.”
“It’s a terrible law,” said Mark Kitrick, a Columbus attorney representing the estate of Tyler Jarrell, an 18-year-old man who was thrown to his death when the ride broke apart. “A lot of products out there are supposed to last longer than 10 years. But if they turn out to be defective after that, the manufacturer can’t be sued or held liable.”
As with every calamity like the Fire Ball disaster, victims will be left to struggle on their own for many years, long after most of us will remember their names. While this terrible tragedy is still in its earliest stages, we hope Ohio politicians will consider the unfairness of this law. Statutes of repose do nothing but stop the most deserving from getting properly compensated and lessen the accountability of negligent companies. Liability and compensation decisions should be left in the capable hands of judges and juries, and not made by politicians in state capitals, who pass arbitrary laws like this.
And it’s worth remembering that no one saves money with laws that impose arbitrary liability limits. For those with ongoing medical expenses, taxpayers will wind up footing the bill for their care if those responsible are off the hook. And Tyler’s family might recover nothing at all. That is simply wrong.