Water Slide That Decapitated Boy Violated Basic Design Standards

It's Kansas.

> [It] could be a load of crap and out of context falsehoods, written by authors who have an interest in raising the cap in Kansas.

That looks like an accurate description.

First of all, by the author's own admission, Rep. Schwab has never made any public statements regarding personal injury damages caps, and his only legislative action related to that subject is voting for a 2014 law which raised the damages cap. So claiming to be able to read his mind so as to justify a very nasty attack is quite uncalled for (IMO).

The Kansas Supreme Court upheld the damages cap 5-2 in 2012,[1] 2 years prior to the law raising the cap, so it's a real stretch (you might say a lie) to claim that law was passed "in order to head off the threat of the Kansas Supreme Court invalidating the whole damages cap scheme."

With respect to the concrete point the author raises, he's lying by omission. Economic damages (actual financial losses, no cap in Kansas) and non-economic damages ("pain and suffering," capped at $300k in Kansas) are two of the three types of damages that may be awarded in a civil case.

There are also punitive damages, which under Kansas law[2] are awarded when the jury finds "the defendant acted toward the plaintiff with willful conduct, wanton conduct, fraud or malice." Punitive damages are capped according to the formula

  (e) Except as provided
  by subsection (f), no
  award of exemplary or
  punitive damages
  pursuant to this section
  shall exceed the lesser
  of:

  	(1) The annual
  gross income earned by
  the defendant, as
  determined by the court
  based upon the
  defendant's highest
  gross annual income
  earned for any one of
  the five years
  immediately before the
  act for which such
  damages are awarded; or

  	(2) $5 million.

  (f) In lieu of the
  limitation provided by
  subsection (e), if the
  court finds that the
  profitability of the
  defendant's misconduct
  exceeds or is expected
  to exceed the limitation
  of subsection (e), the
  limitation on the amount
  of exemplary or punitive
  damages which the court
  may award shall be an
  amount equal to 1½ times
  the amount of profit
  which the defendant
  gained or is expected to
  gain as a result of the
  defendant's misconduct. 

1½ times the defendants' total (not yearly!) profits from Verrükt is almost certainly well above $20 million, and a judge might well allow the argument that the defendants demonstrated wanton and/or willful negligence in operating a) the entire Kansas City waterpark, capping damages at 1½ times its total profits, and/or b) the entire Schlitterbahn parent corporation, capping damages at 1½ times its total profits.

Considering that the Schwab family could have brought lawsuits on behalf of multiple injured parties, on multiple grounds, and against multiple defendants, then hypothetically, under Kansas law, my conservative back-of-the-napkin estimate is the defendants might have faced punitive damages totaling over ten billion dollars. (Which is not to say that amount would be awarded, just that Kansas law allows for it).

Additionally, there are several good reasons I can think of, completely unrelated to Kansas statute, for the Schwab family to sue in Texas instead of Kansas.

First of all, and I don't know whether this is the case here, liability disclaimers (as might be printed on amusement part tickets) usually require that lawsuits be brought in the state where the company is headquartered. In that case, it would be faster to simply sue Schlitterbahn in Texas rather than waiting for Kansas courts to rule on the disclaimer's validity.

Second, Rep. Schwab is a well-known and controversial figure in Kansas. Many people (e.g. the author), potentially including jurors or (less likely, but hardly unheard of) judges, may have difficulty assessing the case in an objective and detached manner.

Third, Texas has an unusually difficult process[3] for obtaining discovery from Texas-based parties in an out-of-state lawsuit.

As for the question of the author's preferred policy outcome, I disagree. I agree that it makes sense in terms of incentives and fairness for there to be a high or no cap on economic (for the plaintiff's actual financial loss) and punitive (for clear misconduct by the defendant) damages, at least for this type of case. Non-economic damages are much more nebulous and tend to be awarded based on how sympathetic the jury finds the plaintiff.

The purpose of personal injury law is to punish (and so discourage) negligent behavior, according to the defendant's degree of culpability. It is not to provide financial windfalls to plaintiffs according to how sympathetic they are (which encourages lawsuits). Whether it's a photogenic 10-year-old, Honey Boo-Boo's mom or Charles Manson who dies has no bearing on the question of whether the defendant is culpable and if so to what degree.

Jurisdictions where non-economic damages aren't capped are where you most often get the sort of case where average people lose all their assets and income because a child / veteran / homecoming queen / father-of-five / judge's aunt slips and falls on their driveway. If the law gets in the feelings-based business of deciding whether bad things happened to good people, the inevitable result is injustice. The law's proper domain are the facts-based businesses of redressing objectively-definable wrongs and of finding out and punishing misconduct.

Accordingly, I'd consider it proper for non-economic damages to be capped at a relatively low level, as in Kansas. Unfortunate as it may be, the law should reflect that just because a bad thing happened to a good person doesn't mean there's a villain to punish.

[1] http://www.cjonline.com/news/2012-10-05/kansas-high-court-up...

[2] http://www.ksrevisor.org/statutes/chapters/ch60/060_037_0001...

[3] http://canteyhanger.com/blog/2015/04/28/securing-discovery-f...