Va. Tech Victims' Families Weigh Suits Against State

"It could go on forever . . . in a highly publicized manner," said former attorney general Jerry W. Kilgore. "It could be costly."

State officials have argued that Virginia's liability would be limited because of the legal protection known as "sovereign immunity," a concept that dates to British roots and the notion that kings and governments can do no wrong and cannot be sued.

In the 1970s, the General Assembly waived the state's immunity for tort claims but capped potential damages at $100,000.

Grenier argues that the state's immunity is not ironclad. He cites a provision of the state code that says a claimant can recover up to $100,000 "or the maximum limits of any liability policy maintained to insure against such negligence or other force if such policy is in force at the time of the act."

Virginal Tech does not have its own insurance. It is covered by the state Treasury Department's Division of Risk Management.

Virginia Solicitor General William E. Thro said he is confident that the courts would uphold the $100,000 cap. "Any ambiguities are construed in favor of the commonwealth," Thro said.

Grenier counters that he has not "found any case law that backs up the commonwealth's argument."

In fact, Grenier settled a wrongful death case with Virginia for $1.2 million in 2001 that involved a juvenile at a youth detention center.

In 2000, the state paid $750,000 to settle a suit brought by the daughter of a woman who was killed in 1997 when a balcony collapsed during the University of Virginia commencement ceremony. Several other relatives split separate settlements that totaled $790,000. Kilgore, who settled the University of Virginia case, said the state will have to quickly determine how broad its immunity is and then consider its options.

"Once the judge rules or is about to rule what your liability cap is or isn't . . . you have to quickly make strategic decisions about how to proceed," Kilgore said.

Without immunity, the relatives of the Virginia Tech victims could each potentially sue the state for millions of dollars. Under Virginia's wrongful-death statute, there is no cap on damages.

Fred Zinober, a litigation attorney, said he thinks the relatives would have a hard time proving that Virginia Tech was negligent.

"You can always second-guess someone; you can always look in perfect hindsight. But the question is, based on what they knew, did they take reasonable measures at the time, and if they took those measures, would it have made a difference?" Zinober said.

But Carl Tobias, a professor at the University of Richmond School of Law, said he thinks the state should consider setting up a fund to compensate the victims and families in exchange for giving up their right to sue.

"I don't think there are any winners with litigation," Tobias said.

Last month, Virginia Tech offered the families of slain students a one-time payment of $180,000 from a fund that has been receiving private donations. Money from that fund is a gift and is not contingent on the families giving up their right to sue.

Kaine and state legislators are considering creating a separate fund that would be legal compensation and accomplish the goals suggested by Tobias.