Legal question could decide Parkland compensation

TALLAHASSEE, Fla. – Nearly everyone agrees that last year's mass shooting at a Parkland high school that left 17 students and faculty members dead, another 17 victims injured and an untold number of people traumatized occurred after a series of missteps by a variety of government agencies.

But what is less certain legally is whether the Feb. 14, 2018 massacre at Marjory Stoneman Douglas High School was a single event or a series of occurrences, a question at the heart of a dispute between victims' families and Broward County school officials.

The answer to the question, now up to the Florida Supreme Court, will likely determine the amount of compensation families suing the Broward County School Board will be able to collect under a state law limiting how much local governments have to pay in lawsuits.

Resolution for the Parkland families will likely rest on the outcome of a similar lawsuit, filed by the fathers of four children who were shot and killed by their stepfather, Palm Beach County resident Patrick Dell, in 2010. The Supreme Court heard arguments in both cases Wednesday.

The issue centers on the state's sovereign-immunity law, which limits how much government agencies can be forced to pay, and how the liability limits should apply when multiple people are killed or injured in incidents.

The law puts a $200,000 cap on wrongful-death or personal-injury claims and sets a $300,000 cap on multiple claims "arising out of the same incidence or occurrence."

The Broward school board argues that its potential liability should be $300,000, because the mass shooting was a single incident, while the victims' families say the aggregate cap doesn't apply. If the families prevail on the legal issue, each plaintiff filing a claim against the school board could receive $200,000 because the shots would be considered separate occurrences.

A Broward County circuit judge in December ruled in favor of the school board, prompting attorneys for Parkland parents and victims to appeal. The 4th District Court of Appeal in March said the case should go straight to the Supreme Court, a move known as certifying the appeal.

Stephen Rosenthal, a lawyer representing families of Parkland victims, told justices that it was too soon to rule in the Broward County case.

"The cake hasn't been baked yet," Rosenthal said. "The dough isn't even in the oven."

But, arguing that the court should not impose the aggregate $300,000 cap on the Parkland victims, Rosenthal suggested that justices consider the question of the sovereign-immunity cap as a tree.

The "incidents and occurrences" are the tree's roots, which give rise to the tree, he argued. The branches of the tree are the claims, Rosenthal said.

"The key question is: What's the roots they arise from? Are they different roots?" he said.

But the justices appeared to struggle with how the Parkland victims' position complied with a "strict interpretation" of the statute.

"What we're looking at here is the specific choice the Legislature made to limit the aggregate claims arising out of the same incident or occurrence," Chief Justice Charles Canady said.

"What principle do you grapple with to differentiate one incident from another?" Rosenthal responded. "The conundrum is how do you apply that in a particular circumstance."

But Eugene Pettis, a lawyer who represents the school board, argued that "this is an issue of one occurrence, one incident … where one gunman came into the campus."

The school board is now fielding 33 legal complaints stemming from the shooting, Pettis said.

Victims and families can go to the Legislature to seek compensation in excess of the sovereign-immunity cap, using a process known as a "claim" bill, Pettis said.

"We have a nightmare of six minutes, a continuous, contiguous action that occurred," Pettis argued.

"In this particular context, our Legislature looked at this and said, we don't bar any of those claimants from their right to bring a case, to get a judgment and to seek recovery" using the claims process, Pettis, a former president of The Florida Bar, said.

The circuit judge who sided with the school board cited a 4th District Court of Appeal ruling in the Dell case, which alleges the Florida Department of Children and Families acted negligently. Dell fatally shot four of his stepchildren and injured one.

The fathers of Dell's stepchildren filed the lawsuit against the state agency, but the appellate court said the shooting was a single incident, rather than separate occurrences.

Lauri W. Ross, who represents the fathers, told the justices Wednesday that "each shot constituted a different, injury-occurring event to each child."

Justice Barbara Lagoa, however, pushed back.

"I could understand that if … there were six incidents at different times," Lagoa said. "But once the person enters the home and the acts occur…"

But Ross said, "each shot is a temporal event, even if it's short in time."

Speaking to reporters following Wednesday's arguments, Pettis said the state's sovereign-immunity law is "totally inadequate for these types of tragedies," referring to the school shooting.

State lawmakers need to create a special victims' compensation fund for the Parkland families, he said.

"This case can't be resolved on a local level. This case needs to be resolved with our Legislature stepping in and creating some type of claims process," Pettis said.

But Fred Guttenberg, whose daughter, Jaime, was among the slain Parkland students and who is one of the plaintiffs in the lawsuit, was enraged by the school board's arguments and lashed out at Pettis' reference to the massacre as an "unfortunate incident."

"The Broward County school district failed. This was not an unfortunate incident on February 14th. It was a case of murder, because of the failures of the people who I trusted to protect my kid," Guttenberg, who attended Wednesday's arguments, told reporters. "I am so frustrated by the school district that was tasked with protecting my child and the 16 others who died, and who failed and failed and failed."