The Gazette-Enterprise

McQUEENEY — A trial that will decide whether Texas Lutheran University officials were culpable in the 2004 death of a member of its cross-country team opened Tuesday with an attorney for the plaintiff alleging school officials should have warned the victim that running along a public roadway was a dangerous practice — or prohibited it altogether.

Arturo and Sylvia Suarez, the parents of Elisa Suarez, filed a wrongful death suit against the university, its former president, Jon Moline, and former track coach, Kandice Holamon Erwin in May 2006.

Suarez was killed when she was struck from behind by a pickup truck driven by Ernest Bibbs while she was running along Kingsbury Street behind Briesemeister Middle School on Oct. 24, 2004.

Bibbs, who was 86 years old at the time of the accident, was indicted for failure to stop and render aid. Because of issues pertaining to his competency to assist in his defense and stand trial, Bibbs has so far not been tried in the case.

The civil suit alleges that Erwin, Moline and the university knew or should have known that it was dangerous to run alongside Kingsbury Street, and is being heard by visiting Judge Joe Hart, presiding in the 25th Judicial District, before a jury of seven men and five women at the Justice of the Peace 4 courtroom in McQueeney.

In his opening statement to jurors, plaintiff’s attorney Justin Hill introduced the Suarez family and described the effect of Elisa Suarez’s death on them.

“We’re here because Mr. and Mrs. Suarez lost their daughter,” Hill said. “We’re not here to say Mr. Bibbs did nothing wrong, but we’re here to prove Texas Lutheran University, Dr. Moline and Mrs. Irwin failed Elisa Suarez, and we ask you to hold them responsible for the death of their daughter.”

Arturo Suarez, Hill noted, is a 1977 graduate of TLU, and his wife is a teacher.

Their daughter, Hill said, was following in the footsteps of her parents.

A year before the accident, Hill said, a young man was killed on U.S. 90 in Luling in much the same manner as Suarez would be.

“It was a shock to the community,” Hill said. “It was such a shock that TLU people knew about the accident. They knew about it and they discussed it. Four months before this accident, Coach Holamon (Irwin) brought it up again. The coach knew the road was unsafe, but never told the students.”

Three days before the accident, Hill said, Guadalupe County Sheriff Arnold Zwicke called Moline to express concerns about the safety of runners, and Moline told Zwicke he’d look into the situation.

“Seventy-two hours later, he had done nothing,” Hill said. “Seventy-two hours later, Elisa Suarez was struck and killed.”

In her opening statement, TLU attorney Cynthia Day Grimes, disputed the contention that TLU should have prevented student athletes from running along public roads on their own time.

“We’re gathered here to talk about choices, caution and control,” Grimes said. “We’ll hear about the choices Elisa and (her training partner) made on Oct. 24, 2004, when they decided to run off campus. We’re going to hear about caution that needed to be taken when they ran along public roads, and we’re going to learn whether the university had control over Elisa Suarez, and whether they had control over what a driver does.”

And Zwicke’s call to Moline, Grimes said, was not so cut-and-dried as the plaintiff would have jurors believe.

“The information Sheriff Zwicke got was from an unknown man who called and said he was concerned about runners he believed to be from the middle school,” Grimes said. “He didn’t say whether they were girls or boys or what their ages were. He was concerned because they were running along Court Street in the dark. When the TLU cross country team ran on Court Street, they ran on the sidewalk.”

Also, Grimes said, there was an issue of what control the university had in the circumstances of the accident, which occurred late on a Sunday afternoon.

“Elisa was an adult, 20 years old, and she certainly was in control of her decisions,” Grimes said. “You’ll hear evidence about control and you will learn Texas Lutheran University had no control over Mr. Bibbs. Choices, caution and control are what this case is about.”

Today, testimony continues with witnesses for the plaintiffs.

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