The Galveston County Daily News

GALVESTON — An appeals court has reversed a ruling that would have awarded $10.5 million to the families of a couple who drowned after the car they were in drove off the Flagship Pier.

The families of Kenneth Wayne Garza and Dorey Fabian in 2000 won the lower court victory, claiming the city — which owns the Flagship — and the lessee that operates it had been negligent by not maintaining the railings that could have prevented the accident in 1996.

But attorneys in the case were notified late last week that a panel from the 10th Court of Appeals reversed the lower court ruling.

The panel ruled that there was no liability since the plaintiffs alleged a passive condition, not any activity by the city or hotel operator, was to blame.

Under the state law dealing with recreation facilities, the defendants owed Garza and Fabian the same consideration that would be due a trespasser — that they not be injured willingly, wantonly or as a result of gross negligence.

The case will not be returned to the trial court, so the plaintiffs only recourse would be to appeal the decision to the Texas Supreme Court.

Ervin Apffel, the attorney who represented the city, said the appeals court made the correct decision.

“It’s not one of things you rejoice about,” he said. “It’s a serious, bad accident that shouldn’t have occurred. You can’t help but feel sorry for the families.”

When the jury made its ruling in 2000, it asked for a court order that the city and hotel “erect the safest current traffic barrier available today and to do so as soon as possible and to maintain its structural integrity at all times.”

Garza and Fabian had been out celebrating his birthday, eating dinner out and then purchasing alcoholic beverages before heading to the Flagship. At some point, the car rolled backwards and fell into the Gulf.

Alton Todd, the attorney who represented the families, in 2000 said the car had been traveling less than 5 mph when it broke through the railings, and the city’s defense was to shift the blame onto Garza and Fabian.

Medical evidence presented at the trial showed that Garza, who had been convicted on numerous occasions for drunken driving, and Fabian were legally drunk, but the jury found Garza only 10 percent accountable for the accident.

The accident went undiscovered for two weeks, until March 26, 1996, when Garza’s body was found on the beach. Investigators then noticed the broken railing and found Fabian still in the submerged car.

Todd could not be reached for comment on Monday.

He also has represented the family of a man killed when he fell through a hole in the Flagship pier. Inadequate maintenance also has been the topic of litigation between the city and hotel operator, Flagship Hotel LTD.