HOUSTON (CN) – An attorney for a victim’s family told a Fifth Circuit panel Monday that organizers of an Austin, Texas, music festival knew the risk of wayward drivers because they discussed it with city officials shortly before a drunk driver sped into a crowd and killed four festivalgoers.
Drawing more than 200,000 people each March to the state capitol, South by Southwest is a 10-day music lovers’ smorgasbord.
Streets are closed to vehicles in the city’s central business district and dozens of bands play at bars, coffee shops and music halls, as giddy revelers stream from venue to venue.
The festivities were marred by tragedy in 2014 when Austin police tried to pull over Rashad Owens for making an illegal turn around midnight on March 13.
Owens turned the wrong way on a one-way street, passed road-closed signs and sped 55 mph into a crowd of people.
Owens injured more than 20 people and killed four others, including Dutchman Steven Craenmehr, a member of two bands, who created an ad campaign for Heineken as the creative director of the music agency MassiveMusic.
A jury found Owens guilty of capital murder in November 2015 and he was sentenced to life in prison without the possibility of parole. A police video from the scene recorded Owens saying, “I should have just stopped,” and “Did I kill anybody? I promise I didn’t mean to kill anybody if I did.”
Craenmehr’s widow, his mother and the mother of his child sued the city of Austin and festival organizer SXSW Holdings Inc. in San Antonio federal court in December 2014 on claims of wrongful death, negligence, premises liability and nuisance.
They also sued Transportation Design Consultants, which SXSW hired to get right-of-way permits from the city for the festival.
The case was transferred to Austin federal court, where U.S. District Judge Lee Yeakel granted the city’s and SXSW’s motions to dismiss, finding it was not foreseeable that Owens would barrel into a crowd.
Craenmehr’s survivors appealed to the Fifth Circuit, which heard arguments at a hearing Monday at the Houston federal courthouse.
The family’s attorney, Scott Hendler, told a three-judge panel that SXSW and Austin-Travis County Emergency Medical Service were clearly aware of the risk of an errant driver because just one week before Owens’ rampage, they had rehearsed how to respond to such an incident.
“What would you have them do?” U.S. Circuit Judge Thomas Reavley asked Hendler.
“They should have put in barriers,” Hendler said. He said the city and SXSW should have taken more precautions than simply putting up road-closed signs.
“Where are you going to put them? Are we going to know where a drunk is going to pick to try to get away from police?” Reavley said.
U.S. Circuit Judge Gregg Costa agreed with his colleague.
“The risk could happen any day, any place, and any time of week. Because risk is always there, it would mean you would always have to close streets,” Costa said.
SXSW’s attorney Peter Kennedy, with the Austin firm Graves Dougherty Hearon & Moody, told the panel that Craenmehr’s family was “trying to do something extraordinary,” essentially trying to hold the defendants liable for capital murder.
He said the first block that Owens drove onto was closed under SXSW’s right-of-way permit, but the second block he entered, where he hit Craenmehr, was open to vehicular traffic.
Whether SXSW or Austin was in control of the street where Craenmehr died is a central question in the case.
Austin assistant city attorney Chris Edwards told the panel that the city controlled the street, and governmental immunity shields it from liability.
Hendler, the family’s attorney, disputed Edwards’ claim. “The right-of-way permit clearly states that where the accident happened was under SXSW control,” he said.
U.S. Circuit Judge James Graves focused on whether the tragedy was foreseeable. Citing the case record, he said that between 2009 and 2014 there were at least 350 collisions between motorists, and bicyclists or pedestrians, during SXSW.
“Is that significant?” Graves asked.
“No because those statistics are city-wide during the period of SXSW,” Kennedy said.
“So what we do know is there are more wrecks during SWSW,” Graves said.
“We don’t know that there’s more. These are not comparative stats,” Kennedy said. He said that before 2014, over the 26-year history of SXSW, no driver had entered a closed street and injured people.
Graves asked Kennedy about the meeting SXSW had with emergency planners in which they discussed an errant-driver scenario one week before Owens drove into a crowd.
“Their allegation is that you did not take preventive measures after talking about the possibility of an incident,” Graves said.
Kennedy said it would set a dangerous precedent if event organizers could be held liable for discussing, but not acting on threats.
“We have conversations about terrorist attacks and active shooters,” he said. “If law turned these events into being foreseeable it would turn Texas law on its head, and provide a disincentive for organizers to discuss safety issues before the event.”
The judges did not say when they would issue a ruling.