Punkin Chunkin injury legislation fails in committee

After pressure from trial lawyers, Senate Democratic leaders blocked legislation Wednesday that would have narrowly capped pain-and-suffering damages sought in personal injury or wrongful death lawsuits.

The legislation, sponsored by Sen. Brian Pettyjohn, R-Georgetown, was sought by the organizers of Punkin Chunkin, who are still searching for a permanent home for the pumpkin-flying event after a 2013 lawsuit filed by an event volunteer who suffered serious injuries in an ATV accident.

Pettyjohn's legislation would have capped pain-and-suffering damages at $1 million for personal injury lawsuits filed against nonprofit companies sponsoring annual special events. The measure would not have applied to events sponsored by for-profit companies. It also would not have limited awards for lost wages and medical bills and would have applied no limitations where gross negligence or intentional actions caused the injuries.

Senate President Pro Tem Patricia Blevins, D-Elsmere, and three other Democratic leaders voted to bottle up the legislation in the Senate Executive Committee. Two Republicans – Senate Minority Leader Gary Simpson, R-Milford, and Sen. Greg Lavelle, R-Sharpley – voted in favor of Pettyjohn's measure.

After the vote, Pettyjohn said he worried Punkin Chunkin would move across state lines after three decades in Delaware. But Pettyjohn said he wasn't surprised the legislation was rejected. "The Trial Lawyers Association were pressing very hard," Pettyjonn said. "They are an extremely powerful lobbying group."

Michael Malkiewicz, a Dover lawyer and member of the legislative committee of the Delaware Trial Lawyers Association, testified during the Senate Executive Committee on Wednesday. He said capping liability is contrary to Delaware tradition and would limit the ability of Delawareans to seek appropriate pain-and-suffering judgments after an injury.

Delaware juries are well-equipped to determine appropriate damage awards, said Malkiewicz, whose firm represents individuals in personal injury claims. He called Delaware juries "fair" and "conservative."

"The judicial system and jury system of Delaware has been touted as the best, one of the best in the world," Malkiewicz said during committee testimony. "Why tinker with it?"

Ricky Nietubicz, president of Punkin Chunkin, said the event is committed this year to property owned by Dover Motorsports Inc. But uncertainty around legal bills, and the size of the Dover site, is forcing organizers to consider sites outside of Delaware.

"We're absolutely going to have to explore all options moving forward," Nietubicz said.

A former Punkin Chunkin volunteer, Daniel Fair, filed a lawsuit in October 2013 alleging the event organizers and the landowner, Wheatley Farms Inc., were responsible for an ATV accident that damaged his spinal cord and made it difficult for him to walk, causing him to lose his job as a tug boat worker.

Fair was one of the spotters who ride into the field where pumpkins land to measure how far they are flung; the ATV he was riding hit a hole in the ground, causing the crash, and he alleged the event organizers and the farm's negligence led to the injury.

Fair's lawsuit, which is still pending in New Castle County Superior Court, asked for at least $4.5 million in damages.

Punkin Chunkin and Wheatley Farms have denied Fair's assertions that they bore responsibility for his accident.

News Journal reporter James Fisher contributed to this story. Contact Jonathan Starkey at (302) 983-6756, on Twitter @jwstarkey or at jstarkey@delawareonline.com.