Police-car fatality refuels debate on liability cap

Lorena Brazil's voice is calm as she talks about her late husband. Recalling how they first met, she manages a slight smile, the softest of laughs. It is only in her brown eyes, ringed by dark circles, that the pain burns through.

Nights of too little sleep and too many tears have haunted her since Anthony Brazil died in a freak accident in the early hours of June 27. Riding his motorcycle along Industrial Road to a friend's house, Brazil was killed when a squad car being driven at an estimated 70 mph by Metro Officer Edward Jones slammed into him.

In that instant, the man known as "Chappy" to his wife and friends was violently, prematurely torn from them.

"You're ready to live life one way, and now it's changed," said his widow, who often drives past the area where her husband died but can't bring herself to stop. "Not only have I lost my husband, I've lost my life."

Responding to an emergency call, Jones struck Brazil, 33, when his car crossed the center line into oncoming traffic on Industrial. Last month, after pleading guilty to two counts of careless driving and failure to maintain a travel lane, Jones was slapped with a $2,000 fine and ordered to complete a police course in driving safety. Sheriff Jerry Keller has suspended him from the force for a month without pay.

The decision by the Clark County district attorney's office to level only misdemeanor charges against Jones infuriated Lorena Brazil. "He pays a couple of traffic tickets and goes back to work in a month. I can't bring Chappy back."

But the bitterness she feels toward the county is dwarfed by her anger over another prickly legal matter. Under state law, if Brazil files a civil lawsuit against Metro for Jones' actions and wins, she would be limited to collecting what she called "almost nothing" -- $50,000 -- from the department.

"What is that going to do for me?" said Brazil, who is trying to make ends meet working a part-time job. "I should get millions and millions of dollars for what they did to him, what they did to us."

Nevada places a $50,000 ceiling on damages awarded to litigants who bring state civil suits against public employees. Among the 48 states that pay up in such cases, Nevada's cap ties with Oregon's for lowest in the nation. (Arkansas and Michigan provide government agencies and their employees with sovereign immunity, or full protection against civil suits.)

Nevada's law has no bearing on federal civil suits, which remain free of caps. Nor does the statute block a person from seeking punitive damages from an individual beyond the $50,000 paid by a government agency.

Still, the state's comparatively low cap has stoked debate among lawmakers and attorneys since the Nevada Legislature last raised the amount nearly 20 years ago.

It's an issue that pits the raw emotion of personal loss against calculated concerns over taxpayers' money: How much is a person's life worth when public dollars are at stake? The death of the well-liked Brazil, a performer in the Caesars Palace show "Magical Empire," has provoked that question as well as others about whether government sufficiently owns up to its mistakes.

"In the Brazil case, $50,000 wouldn't begin to compensate for that kind of tragedy," said Edward Bernstein, the Las Vegas attorney hired by the Brazil family to weigh their legal options. He intends to lobby legislators after the fall elections to boost the cap -- with Chappy's death serving as a grim Exhibit A.

"There's a moral and philosophical argument to be made that people should be responsible for their actions," Bernstein said. "And unfortunately, the way we measure compensation is money. You can't bring someone back from the dead, and (the cap) sends the message that it's OK to be careless."

In pursuit of accountability, Nevada legislators scrapped the state's sovereign-immunity law in 1965, replacing it with a tort-claim statute. No longer untouchable, city, county and state agencies could be sued for up to $25,000 by individual litigants. The cap jumped to $35,000 in 1977 and to its current level two years later.

Today, the vast majority of tort cases filed against Nevada, Clark County and Las Vegas are settled for less than $1,000. Typical claims range from a pedestrian tripping on cracks in a city sidewalk to a motorist getting rear-ended by a county vehicle.

It's only the most sensational cases that tend to grab headlines and legislators' attention. Three years ago, Metro paid the maximum of $50,000 to the husband of a woman killed by a police officer in a traffic accident at The Lakes. In that incident, the department also paid $19,000 for automobile and hospital costs to George Griffin in the death of his wife, Alexandra.

The state shelled out $450,000 to Julie Jimenez last year in a child sexual-assault case involving her 14-year-old mentally retarded son. While he lived at a center for juvenile sex offenders in Reno, a supervisor assaulted him nine times. Jimenez received $50,000 for each of the incidents.

The case reignited the dispute over Nevada's compensation -- or undercompensation, some say -- of those victimized by government employees. Although the litigation boom of the 1980s begat the push for tort reform in the '90s, several lawmakers contended that it might be time for Nevada to catch up with the rest of the country. Or at least with its neighbors: California and Arizona place no cap on wrongful-act claims, while Utah has a $250,000 limit.

Despite discussions in committee meetings, no bill was introduced -- an inaction favored by Sen. Ray Shaffer, D-North Las Vegas.

"Once you get rid of the cap or raise the cap, you're creating a conduit to tax dollars," Shaffer said. "The taxpayers will eventually have to foot the bill. You'd have a lot more litigation with city attorneys and district attorneys having to defend more cases. It would become so easy to go for the money."

Put another way, a higher cap could tempt more people in search of a big payday to haul government into court. As it stands, agencies move quickly to settle cases since they know the most they can lose is a relatively painless $50,000, according to Nevada Solicitor General Mark Ghan. If the cap were raised, government entities would feel obligated to litigate more claims because of the threat of larger judgments, Ghan said.

More litigation, in turn, could mean soaring insurance premiums that would bankrupt rural cities and counties, as well as trigger a severe crunch on services in big cities, said Las Vegas attorney Walt Cannon, who represents Metro in tort cases. The department, which became self-insured in the mid-1980s in response to rising premiums, set aside roughly $3 million out of its $212 million budget this year for handling legal claims.

"The more you raise the cap, the higher the fiscal commitment for the department. Then you have a situation where you have more money going into litigation and damages vs. having more people on the streets," Cannon said.

Opponents of raising the cap argue that plaintiffs already can win more than $50,000 in two ways: if they show multiple offenses occurred, as Jimenez did; or if a victim has more than one dependent. Moreover, if it is determined that an employee acted recklessly or outside the scope of his duties, a plaintiff can sue for greater damages.

Such legal sleight of hand aside, Bernstein said a better solution to the cap quandary is the simplest: raise it.

"What you're asking people to do is come up with a creative way to get around a law. I don't think that's appropriate," he said. "One offense could be more atrocious than 99 separate offenses. Who wants to play that game? It's better to have a law that addresses the issue."

Sen. Bill O'Donnell, R-Las Vegas, pitched the idea of boosting the cap in the wake of the Jimenez case last year. He understands the vulnerable position of public employees, especially police officers who in their best efforts to protect and serve sometimes make hair-trigger decisions that have unintended -- and tragic -- results.

But O'Donnell, who favors doubling Nevada's cap, said that when accidents occur, government owes its citizens an answer. And part of the answer is money.

"We don't have insurance or a cap because we know people are going to do a poor job. We (have a) cap because we know that extenuating circumstances happen and mistakes happen. And in those cases, you need just and fair compensation," he said.

As for the contention that taxpayers would resent plaintiffs receiving more money, O'Donnell said, "Do you think people are that cold and that irrational that they would not want to help someone who is wrongly victimized by a state employee or police officer or firefighter?"

Metro has found itself embroiled in several high-profile federal civil-rights cases in recent years. The department paid $1.1 million to the family of Charles Bush after he was killed by officers in his home in 1990. Three years ago Metro doled out $275,000 to a man who was shot by an officer and another $225,000 for illegally ensnaring another man in an undercover sting. And earlier this year three Chicago brothers received a $325,000 settlement in a police-brutality suit stemming from a 1994 New Year's celebration.

The cases would seem to suggest that getting more than $50,000 out of Metro has become no more difficult than pulling up to an ATM. But if, as in the case of Alexandra Griffin, there is no violation of civil rights, and if the public employee acts within the scope of his job, then a federal claim will not hold up.

That narrows options down to a state civil suit, which because of the monetary limit can leave plaintiffs feeling bereft again. Worse, the cap can make finding adequate legal representation virtually impossible, O'Donnell said. "Attorneys don't even want to touch a $50,000 case."

Going after an individual for additional punitive damages also could prove fruitless. If saddled with a huge judgment, a public employee making $30,000 to $40,000 a year may have no choice but to file for bankruptcy, in essence absolving him of any financial obligations to pay the plaintiff.

In short, leaving the cap at $50,000 is potentially costlier to taxpayers than bumping it up, said Reno attorney Bill Bradley, past president of the Nevada Trial Lawyers Association. The theory: If victims or their families can't cover medical and legal bills with the money they receive from the government, Medicare, Medicaid and welfare must soak up the rest, he said.

"In today's world, with medical costs getting higher, a $50,000 settlement isn't going to even cover medical expenses," Bradley said. "Four or six days in an intensive-care unit costs $50,000 these days."

Bradley also countered Ghan's assertion that the existing cap encourages government entities to settle suits. Aware that they will lose no more than $50,000 on a claim, agencies will litigate needlessly because they already know the worst-case scenario, he said. Waiving the cap, Bradley insisted, would give agencies greater incentive to settle since they could no longer count on forking over a fixed amount per claim.

All of which leads to the inevitable question that no one can answer: How much is the right amount?

The Legislature has gone so far as to consider quadrupling the existing limit, only to let it lie. The issue generally comes up once a session, although no bill has been introduced since the 1979 increase. Sen. Mark James, R-Las Vegas, head of the Senate Judiciary Committee that likely would produce any measure regarding the cap, said in an interview he would "seriously consider" proposals on the issue next year.

Cannon wouldn't be surprised if Brazil's death touches off another round of soul-searching vs. fiscal management in the 1999 session. He's less certain that anything will change.

"No amount of money is ever going to bring back this gentleman," Cannon said. "How do you put a dollar amount on a person's life?"

Lorena Brazil knows the futility of that question all too well. So for now the 27-year-old widow will seek solace from her parents and sister, in town from her native Venezuela, and ponder a possible lawsuit against Metro. Regardless of what transpires in the coming months, she wants lawmakers, attorneys and everyone else to realize that the loss of life, even if caused by an accident, deserves greater compensation than what Nevada now gives it.

"This is not for me. What's the worst that can happen to me? The worst already happened," Brazil said. "But if I can do something to avoid this situation for other families, to protect other families so they don't have to go through this, I will. I want to do this for Chappy."

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