Estate of Kimmel v. Texas a & M University

• Decision Date: 23 July 2002
• Docket Number: No. CIV.A.G-01-719.,CIV.A.G-01-719.
• Citation: 267 F.Supp.2d 646
• Parties: James KIMMEL, as administrator of the estate of Lucas KIMMEL, James Kimmel and Walieta Kimmel Plaintiffs, v. TEXAS A & M UNIVERSITY et al.
• Court: U.S. District Court — Southern District of Texas

267 F.Supp.2d 646

James KIMMEL, as administrator of the estate of Lucas KIMMEL, James Kimmel and Walieta Kimmel Plaintiffs, v. TEXAS A & M UNIVERSITY et al.

No. CIV.A.G-01-719.

United States District Court, S.D. Texas, Galveston Division.

July 23, 2002.

COPYRIGHT MATERIAL OMITTED

Steven K DeWolf, Bellinger & DeWolf, Dallas, TX, for Plaintiffs.

James C Todd, Office of Attorney General, Austin, TX, for Defendants.

ORDER DISMISSING PLAINTIFFS' FEDERAL LAW CLAIMS WITH PREJUDICE AND DISMISSING PLAINTIFFS' STATE LAW CLAIMS WITHOUT PREJUDICE

KENT, District Judge.

The Texas A & M Bonfire ("Bonfire") tragically collapsed in the early hours of November 18,1999, killing twelve students and injuring an additional twenty-seven. This action is one of six virtually identical lawsuits¹ now pending before the Court wherein the Plaintiffs allege that Texas A & M University ("the University") and various former and present high-level University employees² ("University Officials") violated 42 U.S.C. § 1983 when they deprived the Bonfire victims of their Fourteenth Amendment right to substantive due process by acting with deliberate indifference to the state created danger that killed or injured them. Plaintiffs further allege that Defendants negligently harmed the victims in violation of Texas state law.³ On May 24, 2002, Defendants filed a Motion for Summary Judgment wherein they assert that they are immune from liability with respect to Plaintiffs' federal and state law claims and alternatively, that Plaintiffs have failed to state a viable cause of action upon which relief can be granted.⁴ After very carefully and thoughtfully considering Defendants' well-prepared Motion, Plaintiffs' insightful Responses thereto, the lengthy record in this matter and the applicable law, the Court concludes that Defendants' Motion for Summary Judgment must be GRANTED IN PART with respect to Plaintiffs' federal law claims. For reasons set forth below, the Court need not reach the merits of Defendants' Motion for Summary Judgment with respect to Plaintiffs' allegations of negligence, as the Court respectfully declines to exercise supplemental jurisdiction over Plaintiffs' state law claims.⁵

I.

The following facts are primarily derived from the Final Report of the Special Commission on the 1999 Texas A & M Bonfire ("Final Report"). At this stage of the proceedings, the Parties have accepted the Final Report-the product of hundreds of hours of investigation and expert analysisas an authoritative account of the history of Bonfire, the mechanics of the 1999 collapse and the factors that contributed to this far-reaching tragedy. The Court likewise adopts the Final Report as a definitive narrative of the relevant facts for purposes of its instant analysis. However, because the Court wishes to provide as comprehensive of a factual summary as possible, the following account also includes several facts gleaned from the summary judgment evidence.

The much loved and revered Texas A & M Bonfire tradition began humbly, with a burning trash heap in 1909. Over the ensuing ninety years, Bonfire grew into one of the most cherished traditions of Texas A & M University, uniting students, administrators, alumni and the surrounding community each September, October and November. The process of cutting trees into logs, stacking the logs into a towering structure and preparing to ceremoniously burn the edifice on the eve of Texas A & M's annual football game with the University of Texas occupied over five thousand students for an estimated 125,000 hours each fall. At the culmination of these efforts, an estimated forty to eighty thousand individuals gathered annually to watch Bonfire ignite and burn. The University's students, or "Aggies," believe that Bonfire symbolizes their burning desire to "beat the hell out of t.u" at the next day's football game. It is symbolic not only of one school deeply rooted in tradition, but is representative of the entire Nation's passionate fascination with the most venerated aspects of collegiate football.

Bonfire may have started out as a pile of wood and trash, but by 1999, it had evolved into a massive structure with measurable technical complexity. The initial switch from trash to logs took place in the 1940s, when the students introduced a center pole and a teepee-shaped design. Because a teepee-shaped structure can only reach as high as its tallest log, the students began building Bonfire with multiple layers of logs in the 1960s. The 1968 and 1969 Bonfires utilized this multi-tier design, with the 1969 Bonfire reaching 109 feet-the tallest Bonfire ever recorded. In the late 1970s, Bonfire began to take on a wedding cake-shaped design, with multiple cylindrical layers stacked one on top of the other. Since the 1980s, all Bonfires have been (1) built in the wedding cake design; (2) sixty to eighty feet tall; (3) six tiers bound with wire; (4) built around a twopart spliced center pole; and (5) surrounded by four perimeter poles with guy ropes. A completed 1990s Bonfire likely weighed over two million pounds. No other institution of higher learning in the world lays claim to a blazing bonfire of such monumental proportions, and it is an instantly recognizable source of pride and "fighting spirit" to past, present and future Aggies around the globe.

Even in light of Bonfire's massive proportions, its design and construction always remained almost the exclusive purview of the students. The "Redpots," student leaders between the ages of 19 and 21, controlled the Bonfire build year after year. The Redpots were not licensed engineers or architects, lacked formalized construction training and were not required to attend classes on architectural design or building techniques. Moreover, Redpots possessed less than two months experience as "Junior Redpots" before being promoted to Redpots as seniors, failed to utilize blueprints and relied on building techniques that were passed down orally from their student predecessors. Yet Defendants entrusted the Redpots with the primary responsibility for erecting the enormous Bonfire each fall.

Defendants undoubtedly recognized the dangers of Bonfire. In fact, one University document noted that "[i]t is a wellestablished fact that Bonfire constitutes by far the single most liability laden student activity on campus." Other University documents warned that "Bonfire is, by its vary nature, a hazardous activity"; "Bonfire involves thousands of students engaged in a variety of activities, some of which involve potential risks and liability and therefore supervision is paramount"; and "[a]s we all are aware, Bonfire is a very risky undertaking from a safety and liability perspective." Blaine Lewis, a Junior Redpot, wrote in a 1997 paper that stacking the Bonfire's logs "has the potential for great tragedy at any time." Against this backdrop, the University purchased a two million dollar general liability insurance policy to insure against a catastrophic disaster on campus.

Nevertheless, very few truly significant restrictions were ever imposed, communicated or uniformly enforced to protect the safety of Bonfire participants. However, Defendants did not ignore Bonfire safety altogether. Faculty and staff frequently visited the Bonfire site for observation purposes. Defendants created the faculty post of "Bonfire Advisor," implemented a policy that restricted access to the Bonfire site during construction and intermittently passed other safety measures in response to particular "trigger" events. For instance, Defendants (1) imposed a fifty-five foot height restriction on Bonfire in response to fire hazard complaints; (2) required Bonfire participants to attend treecutting training programs after they received reports of cut-site accidents; (3) appointed an alcohol awareness committee and organized the "Don't Shatter the Tradition" campaign to combat excessive Bonfire-related drinking; and (4) prohibited students from riding in the back of pick-up trucks after a motor vehicle fatality. The Final Report characterizes this conduct as a "reactive risk management model" and explains that Defendants only implemented very specific remedial measure in response to specific triggers. Apparently, no specific events or incidents triggered Defendants to query whether Bonfire was structurally unsound prior to 1999. Consequently, they never inquired into Bonfire's structural integrity; and therefore neglected to reexamine Bonfire's design prior to the collapse.

It can be reasonably argued that Defendants should have undertaken a study of Bonfire's structural soundness in 1994. That year, the partly constructed edifice suffered a partial collapse (or "lean") that should have alerted the State Defendants of Bonfire's instability. However, the 1994 mishap was attributed by those involved to wet and unstable ground, not structural integrity. In fact, those involved praised the structural integrity of the 1994 Bonfire because heavy equipment was needed to pull the stack apart. Consequently, the mishap failed to trigger a design re-examination. According to the Final Report, the "people obviously concerned with Bonfire safety, did in fact misinterpret these events and missed clear warning signs about structural integrity. This tunnel vision in decision [was] due ... to a cultural bias in which legitimate courses of action outside past experience or contrary to the University's pre-disposition are often not considered.... More objective interpretations or more conservative interpretations, which might have led to a structural reassessment, could reasonably have been considered."

Regrettably, because of Defendants' reluctance to depart from or question "the way its always been," no one viewed the 1999 Bonfire as a potentially hazardous towering structure tenuously held together with wire. More significantly, no one proposed a sweeping reassessment of Bonfire's construction process. And the results were...