Judge sets jury trial for Aug. 25
Spring Ho Fest fighting lawsuit resulting from teen's death in 2004
By DAVID LOWE Staff Writer

Lampasas Spring Ho Festival Inc. will have to wait six more months for a ruling on a civil lawsuit brought against the festival as a result of a 2004 fatality related to an automobile-pedestrian accident on Key Avenue.

Joe Carroll, district judge for the 27th Judicial District, on Friday signed a motion to set the lawsuit styled "Michael Cabrera & Caryn Hooten vs. Lampasas Spring Ho Festival Inc., City of Lampasas, Nicole Gaddy, Martin Shane Buchanan, Dianna Blumberg and Victor Blumberg" on the jury docket. A trial is set for Aug. 25 at 9 a.m. in the district courtroom at the Lampasas County Courthouse.

The lawsuit resulted from Andrea Cabrera's death after an accident July 10, 2004. As she left Spring Ho festivities about 10 p.m., Miss Cabrera, 13, was struck at the 1200 block of South Key Avenue by a 1998 Oldsmobile Bravada sport utility vehicle driven by Martin Shane Buchanan.

Miss Cabrera died 10 days later as a result of injuries sustained in the collision.

Michael Cabrera and Caryn Hooten, Andrea Cabrera's parents, are suing Lampasas Spring Ho Festival Inc. and Victor and Dianna Blumberg. Miss Cabrera was staying at the Blumbergs' home at the time of the accident.

The plaintiffs have settled with Buchanan, and his insurance company is paying damages to Cabrera and Ms. Hooten, said Robert Allen, a San Antonio attorney representing Spring Ho.

A March 16, 2006 notice of non-suit dropped the Lampasas County Chamber of Commerce, one of the original defendants, from the lawsuit.

Carroll in April 2006 dismissed all the plaintiffs' claims against the city of Lampasas.

The plaintiffs allege Lampasas Spring Ho Festival Inc. was negligent by failing to choose a safe location for Spring Ho activities and by failing to provide safe ingress and egress for festival participants. Cabrera and Ms. Hooten also have filed suit against the Blumbergs, whom they allege negligently dropped off Miss Cabrera at a busy intersection by HEB and arranged to pick her up there rather than at the entrance to the Spring Ho activities.

"What the Spring Ho Festival basically says is, 'Once you set your feet outside of our premises you're on your own,'" said Austin attorney Anthony Icenogle, representing the plaintiffs. "The Spring Ho Festival provides no police protection, no standard ingress or egress."

In the defendant's motion for summary judgment, Allen argues on the festival's behalf that under Texas law a person who does not own, occupy or control a property cannot be held liable for conditions on the property. The accident did not occur on property owned or occupied by Lampasas Spring Ho Festival Inc., the defendant's motion states, because the festival corporation's agreement with the city of Lampasas states that the city controls the right of way in the public parks and recreation areas where Spring Ho events take place.

As a result, the festival did not have authority to close the streets around the Spring Ho carnival or direct traffic on the streets, Allen said.

The festival did, however, provide a location off the major roads for drop-off and pick-up of those attending the Spring Ho carnival, Allen said.

"The family did not use that drop-off area," the attorney said. "Of course, we can't require that the dropoff area be used but can only make it available."

Lampasas Spring Ho Festival Inc. also is protected from liability, he is arguing, because Miss Cabrera stepped or ran in front of the vehicle of her own volition. She was not pushed, shoved or jostled by other festival-goers, the motion for summary judgment contends.

Icenogle said Spring Ho has a duty to protect those who attend its events, particularly because heavily traveled highways border Spring Ho. Case law has established an obligation for events that attract children to provide safe passage across roadways, the attorney added.

Icenogle said Buchanan was not intoxicated and was not speeding when he hit Miss Cabrera. In his statement to Lampasas Police Department officer Charles Montgomery, Buchanan said he was driving about 30 miles per hour and was distracted by crowds of people leaving the festival site.

Allen, however, said Buchanan's deposition on Sept. 19, 2007 from the Eastham Unit prison in Lovelady, where he was being held on an unrelated matter, proves Lampasas Spring Ho Festival Inc. was not responsible for the collision.

"He took responsibility for the accident," Allen said of Buchanan.

In his deposition, Buchanan said the activities and crowds at Spring Ho did not distract him as he was driving.

Icenogle said the deposition differs substantially from Buchanan's statement to police on the night of the collision. The attorney said he considers the statement to police more accurate because the incident had just occurred and that Buchanan remembered the details vividly then.

"Certainly one of the things that perplexes us is the difference between his statements to the police and his statements in a jail," years later, Icenogle said.

The contending parties did not reach a settlement through mediation, Icenogle said.

When the lawsuit is heard in August, the jury will determine what, if any, monetary damages are awarded, Allen said. As a charitable organization, Lampasas Spring Ho Festival Inc. would be liable for no more than $500,000 in damages, he added.