Government agencies probably won’t face much liability from those physically or fiscally harmed by the Boston Marathon bombings, but the race sponsors could prove vulnerable depending on the terms of their insurance policies.
That was the consensus during a panel discussion hosted by Edwards Wildman Palmer.
Survivors of the three people killed or the 260 who suffered bodily injuries could assert claims even if they collect money from a victim’s compensation fund set up following the bombings, Boston associate Laura Bange said.
Compensation guru and lawyer Kenneth Feinberg is running the private fund called One Fund Boston, which has raised $ 35.9 million as of May 28. But the fund doesn’t require recipients to waive their right to sue for injuries. "The One Fund money is essentially gift and there’s absolutely no connection to the tort system," she said.
Businesses damages or closed for nine days while authorities combed a multi-block crime scene are the next most likely claimants. "For a lot of businesses, being closed down for more than a week is a catastrophic event," Bange said.
She was among a number of specialists at Boston-based Edwards Wilman who addressed the bombings’ legal aftermath during a discussion broadcast on the Internet last week.
According to Providence, R.I., partner Stephen Prignano, the state or local governments are potential targets despite their power of sovereign immunity. In Massachusetts, he said, governments could lose immunity if found to have negligently performed nondiscretionary government functions—such as carrying out a security plan for the event. But such claims are limited to $100,000. "The plaintiffs will have a real uphill fight on their hands in terms of establishing any form of liability against the government."
Event organizers, promoters or sponsors could face negligence or related claims, he said. "This really is an evolving area of the law, but generally it appears that the touchstone for establishing liability is the degree of control that the sponsor did or did not exercise over the conditions of the event itself."
Prignano cited a District of Rhode Island ruling following the deadly February 2003 fire at The Station nightclub in West Warwick, R.I., that killed 100 and injured more than 200. Fireworks used in the show ignited foam insulation in the club’s ceiling.
In September 2005, Senior District Judge Ronald Lagueux declined to dismiss claims against a radio station that sponsored the show.
"To the extent that Plaintiffs can establish that WHJY had control over the planning and operation of the concert, then the Court can find that WHJY owed a duty, commensurate with its measure of control, to the Plaintiffs," Lagueux wrote.
Claims might be made against companies’ commercial general liability policies or special event coverage, Prignano said, subject to exclusions for criminal acts, athletic activities and terrorism.
New York counsel Brian Green talked about the Terrorism Risk Insurance Program, which requires private insurers to offer terrorism insurance to commercial customers. The program also provides federal reinsurance for attacks resulting in total insured losses of more than $100 million if certified by the federal government as acts of terrorism, Green said.
"This hasn’t been certified as an act of terrorism by the three people who need to certify it as such," Green said.
This article originally appeared in The National Law Journal.