After event organizers threatened to leave Sussex County early last month, a local senator has drafted legislation that could convince the Punkin Chunkin Association to stay put.

After event organizers threatened to leave Sussex County early last month, a local senator has drafted legislation that could convince the Punkin Chunkin Association to stay put.

Sen. Brian Pettyjohn (R-Georgetown) is seeking co-sponsorship for a bill that would place a $710,000 liability cap on non-economic damages for personal injury or wrongful death at special events like Punkin Chunkin.

“We need to keep these community events happening so that the public can enjoy them and the nonprofit organizations that host them can do their fundraising without fear of a catastrophic lawsuit occurring,” Pettyjohn said.

Punkin Chunkin organizers said they were considering a move out of Sussex County, possibly to Maryland, where there’s a liability cap in place. In fact, Pettyjohn’s bill is modeled after Maryland state law. The legislation does not limit punitive damages or economic damages like lost wages and medical bills, and there would also be no limitation where gross negligence or intentional actions cause the damages. The $710,000 liability cap is for noneconomic damages and is fluid, increasing each calendar year by $15,000.

Punkin Chunkin’s call for this legislation stems from a lawsuit filed in New Castle County Superior Court on Oct. 23 by Daniel and Kristina Fair, of Lewes, against Punkin Chunkin Association and Wheatley Farms, in Bridgeville, where the event is held every year. According to court documents, Daniel Fair was a volunteer spotter at the 2011 Punkin Chunkin event. After a pumpkin is launched, spotters quickly race off on all-terrain vehicles to determine their landing spots, according to the complaint.

On Nov. 25, 2011, Fair was crossing a field at between 30 and 35 miles per hour when his ATV hit a depression that he claims he did not see because it was covered by grass and other vegetation. The complaint states the ATV violently pitched forward, launching Fair off the vehicle and into the field. The ATV landed on Fair’s spine, knocking him unconscious.

Following several surgeries, the complaint states, Fair was released from Christiana Hospital with the diagnosis of “traumatic paraplegia.” Since then, according to the complaint, Fair’s condition has improved slightly. He can stand on his own but has difficult walking without the aid of a walker “due to lack of strength and coordination in his legs.”

The complaint states that Fair generally uses a wheelchair to get around.

The injuries have caused Fair to “sustain severe physical pain, suffering and mental anguish. To date, Fair has incurred hundreds of thousands of dollars in medical and other care bills as a result of the incident. Fair also faces a lifetime of medical and other care bills … thereby incurring tremendous future economic loss.”

The Fairs are suing for more than $4.5 million on the grounds of negligence, premises liability and loss of consortium, or damages caused to their marital relationship.

There is not yet a trial scheduled for the case. The attorneys for Wheatley Farms filed a motion for dismissal on the grounds that the complaint was filed in New Castle County and the incident occurred in Sussex County; however court records do not reflect a decision on that motion.

Pettyjohn said he hopes to introduce the bill at the start of the next legislative session, which begins Jan. 14.

Frank Shade, a spokesman for Punkin Chunkin Association, said passage of this legislation may convince event organizers to stay in Bridgeville. A decision on whether to move must be made by March 1.

“Our primary concern is liability limits,” Shade said. “No matter how much insurance an event purchases, there’s no guarantee that if we’re sued, the litigant would ask for more than we’re insured for.”

Pettyjohn said the attorneys for Wheatley Farms have returned a favorable response to the draft legislation.

“What they’re looking for is just a number so they know what they need to purchase for insurance purposes,” he said.