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Expected appeals of a federal judge’s dismissal of Texas A&M University and university officials from suits brought by families of students killed or injured in the 1999 bonfire collapse could be affected by how the 5th U.S. Circuit Court of Appeals rules in a Mississippi case. On July 23, U.S. District Judge Samuel B. Kent of Galveston dismissed six federal suits brought against the university and various former and present high-level administrators, including Ray M. Bowen, outgoing A&M president. Ruling in Breen v. Texas A&M University, et al. and the five other suits, Kent said governmental immunity protects the university from liability for the deaths and injuries resulting from the collapse. Kent also held that A&M officials did not act with “deliberate indifference,” the requisite culpability plaintiffs must show to prove their allegations that the officials deprived the victims of their 14th Amendment right to substantive due process by failing to protect them from a “state-created danger.” The plaintiffs alleged in the suits that A&M officials created a danger by failing to ensure the bonfire’s structural integrity. The 5th Circuit set forth the elements of the state-created danger theory in 1994′s Johnson v. Dallas Independent School District but did not adopt the theory until July 26, 2001, in McClendon v. City of Columbia, et al. In McClendon, the 5th Circuit reversed a trial court in the Southern District of Mississippi that had granted summary judgment in favor of a police officer who allegedly gave an informant a gun seized by the Columbia, Miss., police department. The informant allegedly used the gun to shoot another man in the face, blinding him, according to the opinion by then-Senior Judge Henry Politz. Circuit Judges Harold DeMoss Jr. and Carl Stewart joined Politz in the opinion. However, the 5th Circuit decided to review the case en banc and heard arguments in McClendon on May 21. “It’s still an open question as to what the 5th Circuit is going to do on that,” says Cowles & Thompson partner Jim Cowles of Dallas, who represents Zachry Construction Co., a defendant in state court suits filed over the bonfire collapse. Steven DeWolf, attorney for four plaintiffs in the federal suit, says he absolutely will appeal Kent’s order dismissing the federal law claims. DeWolf, a partner in Dallas’ Bellinger & DeWolf, represents the families of Christopher Breen and Lucas Kimmel, who died in the incident, and Lauren Scanlan and Bill Davis, who suffered injuries. According to DeWolf, Kent told attorneys at a pretrial conference on April 26 that qualified immunity was the issue before the court but didn’t address that issue with regard to the A&M officials. In his dismissal order, Kent also said that the parties in the suit have accepted the final report of the special commission appointed by A&M to investigate the incident as an authoritative account of the factors that contributed to the tragedy. “That’s just not correct,” DeWolf alleges. “With all due respect to Judge Kent, we said in our brief that we did not adopt the full commission report,” says Geno Borchardt, a partner in Fort Worth, Texas’ McGartland & Borchardt and attorney for the family of Chad Powell, another student killed in the collapse. BACK TO BRAZOS COUNTY The Texas Office of the Attorney General represented the university and A&M officials in the suits but declines comment on Kent’s decision, according to OAG spokesman Mike Viesca. In its motion for dismissal, the OAG argued that the plaintiffs’ allegations do not show that the officials stood by and did nothing. The defendants took some measures to protect the safety of the bonfire participants, even if those measures ultimately proved insufficient, the OAG said in its motion. Under Kent’s ruling, state claims included in the federal suit can be refiled in a state court. It appears that all the state court cases will be heard in Brazos County — the heart of Aggieland. McClain, et al. v. Bowen, et al., one of five state court wrongful-death suits stemming from the tragedy, was transferred from Bexar County Probate Court No. 2 to Brazos County and assigned to the 85th District Court on July 22. Darrell Keith, who represents the family of Bryan Allan McClain, another student who died when the logs fell, says judges in the four other death cases have ordered those cases to be transferred to Brazos County as well. Keith, with Fort Worth’s Law Firm of Darrell Keith, says the plaintiffs can’t appeal the change of venue rulings, which were made under � 15.002(b) of the Texas Civil Practices and Remedies Code; however, he says the plaintiffs can file motions in the trial court to have the cases transferred out of Brazos County if it appears they can’t get a fair trial there. “I’m hopeful we can get a fair trial in Brazos County, but I have concerns,” says Keith, who also represents the families of two other students who died in the collapse. “The primary reason we wanted this in Brazos County is so the 60-some odd defendants don’t have to litigate this case six or seven times,” says Britton B. Harris, who represents 13 defendants named in the state court suits. Harris, of counsel at Brown McCarroll in Houston, says the suits could not be consolidated because four were filed in the probate courts handling the deceased students’ estates. A probate court in Bexar County wouldn’t hear a case involving an estate being handled by a probate court in another county, he says. Says Cowles, “We thought the lawsuits ought to be in Brazos County, where all this happened, and we thought they ought to be in state court.”

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