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In a move applauded by plaintiffs’ lawyers who represent Texas A&M University bonfire collapse survivors, their families, and the families of individuals who died in the tragedy, a three-judge panel of the 5th U.S. Circuit Court of Appeals reversed a U.S. district court’s dismissal of six related suits seeking damages related to the unfortunate event. The panel of circuit judges — Jacques L. Wiener Jr., Edith Clement and Edward C. Prado — on Aug. 19 reversed the district court’s decision dismissing the six cases and remanded them to U.S. District Judge Samuel B. Kent of the Southern District in Galveston for further proceedings. In November 1999, a 59-foot stack of some 5,000 logs that students at the College Station university were erecting to create a bonfire collapsed, killing 12 and injuring 27. After the tragedy, the school established a commission to investigate the causes for the collapse. It suspended the annual bonfire tradition, which began in the early 1900s and involved the construction of a mammoth stack of logs that was set on fire before the yearly football game against rival University of Texas. The plaintiffs sued in federal court alleging negligence but also asserted claims under the theory of state-created danger. The state-created danger theory relies on an interpretation of the federal Civil Rights Act. Adopted only in six circuits, the theory suggests that if the state itself is so dangerously indifferent it can create perilous situations and violate individuals’ civil rights, thereby over-riding any claims of governmental immunity, says T. Gerald Treece, an associate dean and civil rights expert at South Texas College of Law. The university, which is a state entity, and five officials denied the plaintiffs’ allegations and sought summary judgment as well as a dismissal of the claims. In July 2002, Kent dismissed the suits, ruling that A&M is shielded from liability by governmental immunity, not the officials, and that the school officials, even if they created an environment that was dangerous to the bonfire victims, did not do so with deliberate indifference, the requisite culpability to support a state-created danger claim. In his orders dismissing the suits, Kent referred to the university-commissioned report. He based his decision to dismiss the suits on governmental immunity grounds. He also determined that the actions of the university and the officials did not, as a matter of law, rise to the level of deliberate indifference. Based on that determination, Kent granted the defendants’ motion and dismissed the plaintiffs’ claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The plaintiffs appealed the dismissal orders of all six suits to the 5th Circuit. In the opinion, written by Prado, the court stated that Kent erred by relying on a report produced by university officials rather than allowing a jury to look into questions of material fact about whether school officials acted with deliberate indifference. “By simply adopting the [university's report] as the basis for determining the university did not act with deliberate indifference, the district court deferred to a defendant-created commission rather than presenting the questions of material fact to a trier of fact,” Prado wrote. “Whether deliberately delegating the construction of the bonfire stack to students the university officials allegedly knew were not qualified to handle such a dangerous project, and whether deliberately providing no supervision to students in building the bonfire even though they knew the students were not qualified to build the stack, constituted deliberate indifference presents fundamental questions of material fact.” HARD TO PROVE Lawyers representing the plaintiffs in the six suits — Howard Scanlan, et al. v. Texas A&M University, et al.; Sean Breen, et al. v. Texas A&M University; James Kimmel, et al. v. Texas A&M University; Jacquelynn Kay Self, et al. v. Texas A&M University; John Andrew Comstock, et al. v. Texas A&M University; and Bill Davis v. Texas A&M University — take heart in the 5th Circuit’s ruling. “I am extremely pleased with the decision. It vindicates my client’s position,” says Darrell L. Keith, of the Law Firm of Darrell L. Keith in Fort Worth. Keith represents the family and estate of Jerry Don Self, who died in the tragedy. Through a university spokesman, Scott Kelly, a deputy general counsel for Texas A&M, declines to comment. James Todd, an assistant AG at the Texas Office of the Attorney General who represents Texas A&M and the five officials, did not return two phone calls seeking comment before presstime on Aug. 21. Tom Kelley, a spokesman for the AG’s Office, says, “We’re disappointed with the procedural ruling, and we are declining any further interviews about it.” Kent declines to comment. Steven DeWolf, a partner in Dallas’ Bellinger & DeWolf who represents two families who lost relatives in the bonfire tragedy and two survivors and their families, says the 5th Circuit opinion shows that the judges think little of the university’s report. Based on their downplaying of the significance of that report, DeWolf says, the 5th Circuit “thinks this case should go to trial.” But DeWolf says the panel did not go so far as to embrace the state-created danger theory, which is recognized in six other circuits. As a result, DeWolf intends to amend his clients’ complaints to include additional claims about the university’s and officials’ alleged negligent training and supervision, he says, which will be unrelated to the state-created danger theory. In contrast, Keith says he does not plan to change his claims related to state-created danger in federal court. He believes the appeals court ruling indicates that the 5th Circuit is willing to consider state-created danger claims. “I think the 5th Circuit is sending a message to the trial court that the plaintiffs have adequately pled a state-created danger claim,” DeWolf says. He says the 5th Circuit panel sidestepped directly endorsing the state-created danger claim but the decision “is encouraging and suggests if the facts of our case show deliberate indifference, then they will be willing consider such a claim.” But Treece says the opinion is favorable for the plaintiffs, but it isn’t a slamdunk. “The 5th Circuit has taken the position that while it’s very hard to prove deliberate indifference and the standard is high, the plaintiffs should get a chance to do that,” Treece says. “It doesn’t mean the plaintiffs will win.”

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