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Va. Weighs Its Cap on Negligence Payments

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By Tim Craig
Washington Post Staff Writer
Monday, April 14, 2008

RICHMOND -- Several Virginia legislators are questioning whether the limits on the state's liability in cases of negligence should be increased after the Virginia Tech shootings.

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Virginia's $100,000 limit on tort claims against the state hasn't been raised since 1993, making it one of the most restrictive caps in the nation.

But after 40 families of those killed or injured by Seung Hui Cho a year ago at Virginia Tech filed claims against the state, some legislators say they need to closely study the issue over the summer.

"We should take a look at it both philosophically and from an inflation standpoint," said House Majority Leader H. Morgan Griffith (R-Salem). "Just like the situation at Tech brought to light the need for mental health reforms, it also raises questions why the Tort Claims Act dollar amount hasn't been raised since 1993."

The General Assembly would not consider raising the cap until it convenes in January, meaning it would not apply to the families of the Virginia Tech victims. But the effort to study the cap could spark a broad debate about Virginia's protection under 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 1982, the General Assembly waived the state's immunity for tort claims but capped potential damages at $25,000. The cap, which is supposed to apply unless a plaintiff can prove "gross negligence," was raised to $100,000 in 1993.

The limit on damages has complicated efforts by the families of Virginia Tech victims to sue the state.

"I think it is an unfair cap and a travesty of justice," said Richard D. Heideman, an attorney for the family of Liviu Librescu, an engineering professor killed in Norris Hall. "I believe $100,000 is an arbitrary and capricious amount to set."

On Thursday, Gov. Timothy M. Kaine (D) announced that a majority of the families of the Virginia Tech victims have agreed in principle to accept an $11 million settlement in exchange for agreeing not to sue the state.

Under the agreement, which followed weeks of negotiations, the state will offer the victims health benefits and other non-monetary assistance. The state, in an effort to abide by the cap while not admitting it did anything wrong, will also give $100,000 to the families of the 32 people Cho killed. Those injured can also receive up to $100,000, depending on the severity of their injuries.

Roger O'Dell of Roanoke, whose son Derek was injured in Norris Hall, said more families would have accepted the settlement if the cap had been higher.

"I am hoping [all the victims' families] will raise the point with their own legislators and delegates and senators," said O'Dell, whose son accepted the state's offer.


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