Dear Source,
I am attorney who has been practicing law in Illinois and the Virgin Islands for the last twenty-two years. While for the majority of those years I have concentrated my practice in plaintiffs' personal injury, I have also defended the Government and others against tort lawsuits. I have my own law firm in St. Croix, and am also a part owner of a tourist-based business in St. Thomas. Indeed, I have looked at, and am personally affected by, the issue of "Tort Reform" from both sides.
It has recently come to my attention that Senator Berry, a likely gubernatorial candidate for the 2006 election, has committed to HOVENSA and other big business interests in the community, to push through "Tort Reform" legislation prior to her run for Government House. While this is surprising to me, considering she is suppose to be a Democrat, (big "D") and a representative of "the people", (little "p"), I do not write to you as an attorney or as a business owner, but rather as a parent.
I have a seven-year old son who plays soccer with a local soccer association. The association plays on property owned by The Renaissance Group, which, I was told, very generously allows the association to use free of charge.
I recently registered my son for the upcoming season. Included in the registration packet was a Release that parents are required to sign in order to allow their children to play in the association. The Release purported to absolve The Renaissance Group from any and all liability, including their own negligence, should anyone be injured while on their property.
Such releases are void, because it is against public policy for an individual or an entity to attempt to release themselves from their own negligence. However, it was not the legality of the Release that concerned me. Rather, I was alarmed at the message that is being sent.
As a parent, I am constantly attempting to teach my son that he must take responsibility for his actions and that there are natural consequences that flow from his own carelessness or worse. For example, I do not replace toys that are lost, misplaced or broken due to his negligence in caring for them. I do not see this as punishment, simply the expected result of such behavior.
Therefore, I could not sign the Release as written, even though I knew that, in part, it was legally unenforceable. I was told that it was "just the lawyer in me." But, it was really just the parent in me. I felt that it was hypocritical to preach one thing to my son regarding personal responsibility, and to then agree to release a large corporation from its own negligence.
I have since thought about the message being sent by that Release in the context of the community at large. What is the societal lesson being taught? That we no longer hold people or companies fully accountable for their actions?
This is exactly the same message of "Tort Reform", particularly that type of "reform" being pushed by Candidate Berry, presented in the guise of caps. Caps are maximum amounts set by statute that can be recovered for certain types of damages, no matter what a jury or judge determines are the actual amount of damages suffered. This type of reform does not implicate "frivolous" lawsuits.
Indeed, for caps to even apply, the lawsuit first must have progressed passed the stage where a judge has reviewed it for frivolity and determined that the claim, if true, has both factual and legal merit. For caps to be implicated the case must also be passed the point where the judge and/or jury has determined that negligence has actually occurred and damages have resulted from that negligence. Thus, if caps are passed the legislature would, in effect, be telling the people of the Virgin Islands that those who do them harm will not be held responsible for the full amount of damage that is done.
I cannot imagine any mother or father in the Virgin Islands teaching their children such a lesson. As a parent, how can I share that message, potentially made law, with my young son and still expect him to understand that I will hold him fully responsible for his wrongful conduct?
I am asking all Senators as a mother, please do not support any such legislation.
Pamela Colon (Nick's mom)