(Photo: Brightonikon/iStockphoto.com)

Legal action is brewing behind the scenes against the city of Austin and SXSW over the tragedy this spring, in which an allegedly drunk driver crashed through barricades and accelerated through a crowd of South by Southwest Music Festival revelers, killing four and injuring 24.

The city has received notice of claim letters from four attorneys representing seven SXSW crash victims; five were injured and two died. Two of the lawyers demanded money totaling $1.65 million for three of the victims, according to records that the city released to Texas Lawyer under a Texas Public Information Act request.

Also, three of the lawyers on behalf of five victims blamed the city for the barricades it used to close Red River Street, where the large SXSW crowd congregated on March 13. The city redacted medical information before releasing the records.

“It’s my feeling that, clearly, there was inadequate security at a large event where all the people involved knew or should have known of a real risk of tragedy,” said Keith Herbert, who represents injured victim Curtisha Davis and the estate of De’Andre Tatum, who died. “The street had been blocked off by the use of plastic fences. … They call a plastic fence a ‘barrier,’ but it’s really not a barrier to a car. It doesn’t stop a car.”

Pete Kennedy, a lawyer for SXSW, declined to comment. But in a June 26 memorandum, he claimed that SXSW is not liable for the incident. Kennedy sent the memorandum to Herbert in response to Herbert’s notice letter to the city and SXSW. Herbert sent Kennedy’s memo to Texas Lawyer.

“We have heard some questions raised about [what] kind of barricades were used to block off Red River. This was the city’s decision,” wrote Kennedy, shareholder in Graves, Dougherty, Hearon & Moody in Austin. He noted that the barricades needed to be “moveable” so that emergency and delivery vehicles and residents could get through.

“The same type of barricades have been routinely used for years in Austin to close off streets temporarily for events, so there was nothing out of the ordinary,” Kennedy wrote.

Meghan Riley, chief of the city of Austin litigation division, didn’t return a call or email seeking comment.

City of Austin spokeswoman Alicia Dean wrote in an email, “This incident was a tragedy that is singular in the 27-year history of the SXSW festival. The safety and security of all our residents and visitors is our top priority year-round. We are thankful to our first responders who acted quickly to treat the victims and to arrest the person believed to be responsible.”

Indictments on file with the Travis County District Clerk’s Office show that Rashad Charjuan Owens, who drove the Honda Civic involved in the SXSW crash, now faces charges of: one count of capital murder; four counts of felony murder-evading with a motor vehicle; 24 counts of aggravated assault-bodily injury with a deadly weapon; and nine counts of intoxication assault-deadly weapon. Police tested Owens’ blood-alcohol level at 0.114, according to the March 14 affidavit for warrant of arrest and detention in State of Texas v. Rashad Owens.

Owens’ criminal-defense lawyer, Rickey Jones, managing partner in Campbell Jones & Marsaw in Dallas, didn’t return calls or emails seeking comment.

Notice and Demand

The SXSW crash created a story of love lost for two of three couples who have now lawyered up. For those two couples, one half of the pair died in the crash. For the third couple, both people survived.

The survivors are Luis Suarez and Jacqueline Longhurst. Their lawyer, Oscar Mendez, Jr., said that his clients were on vacation when they visited Austin. They were walking to get food nearby, not attending SXSW.

“They hear a bunch of screams and when they turn around, the car just flips them over,” said Mendez.

Suarez injured his knee, suffered a concussion and now experiences headaches, among other things, said Mendez. Longhurst was hurt worse: Her teeth were knocked out, and she had road rash and injuries to her neck, back, knee and leg.

In two separate notice letters to the city, Mendez demanded $500,000 on behalf of Suarez and $1 million for Longhurst. Mendez wrote that in addition to “inadequate barricades,” the city “also failed to adequately prepare for the more than 200,000 attendees” of SXSW.

Purdue & Kidd associate Sarah Swift of Houston is representing a married couple; the wife died in the crash.

On April 25, Swift wrote a letter to inform Austin city manager Mark Ott that Swift represented Evan West, who was injured and still is getting medical care; and the estate of his wife, Jamie West, who was “pronounced dead on the scene.” Evan West has a personal injury claim and a wrongful death claim, while Jamie West’s estate has a survivorship claim, Swift wrote.

Swift declined to comment.

Another letter came from Jeff Edwards of Edwards Law in Austin, representing injured victim Ryan Freeman. Edwards wrote than the city created a “dangerous premises” by using “inadequate and unsafe barricades.”

“It would have been easy to install safe barricades that would have stopped a car and protected all citizens, including Mr. Freeman,” he wrote. The city also created a dangerous premises in “the reckless manner in which one of your officers endangered Mr. Freeman and others in chasing a dangerous driver,” wrote Edwards. He noted that Freeman would accept $150,000 to release the city “for its role in the senseless and preventable incident.”

Herbert, of the Law Office of Keith R. Herbert in McKinney, represents the third couple, Davis and Tatum, who were “unofficially” engaged, he said. Davis was hurt, and Tatum died from his injuries.

Herbert wrote in a notice letter to the city and SXSW that “the great puzzlement” is how the event “could have proceeded with such an underdeveloped security plan.”

Herbert wrote that it’s “inconceivable” that “crowds and cars were separated only by the most flimsy of portable plastic or wooden fence-like temporary structures while at the same time patrol cars were stationed at the perimeter to chase down drunk or drugged drivers.”

SXSW Memo

On June 26, Kennedy responded to Herbert with a letter and memo.

“Any claim against SXSW would fail as a matter of law, given SXSW’s lack of ownership or control over the public street, the city’s control over the type and manning of the street barricades, the lack of prior similar incidents anywhere during SXSW or the vicinity of East 9th and Red River Street and, most importantly, Owens’ … sudden and deliberate criminal conduct,” Kennedy wrote in the memo.

No one has filed any lawsuit against SXSW yet, Kennedy wrote, but if such a suit were filed, it might “assert some theory of negligence, gross negligence and/or premises liability.”

But claimants wouldn’t be able to establish some of the elements of a negligence claim against SXSW, wrote Kennedy.

Texas case law establishes that a defendant doesn’t have a duty to protect people from criminal actions by others or to anticipate others’ criminal acts, he wrote. Although there is an exception in cases where a property owner might have foreseen the criminal act, Kennedy wrote that the exception would not apply here.

“Owens’ deliberate decision to flee police, go the wrong way down a one-way street, turn into a barricaded street and then run down multiple pedestrians was extraordinary and totally unexpected,” Kennedy argued in the letter.