089: A Case that Flopped

Stella Case No. 089, Originally Published: 27 April 2005

Wesley Holloway, now 20, was a member of the Alpha Tau Omega fraternity at the University of Texas in Austin. After signing a waiver of liability, Holloway went to a party at the ATO frat house in May 2003. As part of the party’s entertainment, one of the rooms in the house was filled with foam. To help members clean up after going through it, frat pledges made a wading pool in the back yard. Hay bales were set up, lined with plastic, and filled with about a foot of water as a place to rinse off.

Holloway, who had been a competitive swimmer in high school as well as a lifeguard, was certainly well aware of the dangers of diving into a shallow pool. So he decided to do a belly-flop instead. To get a good splash he leapt from atop a nearby picnic table.

“He was successful in doing a belly-flop and keeping his head up,” says his lawyer, Robert Alden. “He didn’t know how far he would travel once he hit, or the fact if he hit the hay bales it would break his neck.” Sure enough Holloway hit his head on a hay bale; his neck was broken and he was left a quadriplegic.

Maybe Holloway “didn’t know” he necessarily would break his neck, but as a competitive swimmer and former lifeguard he “should have known” it, especially since he could easily see how shallow the water was. And sure enough, he did: he admitted it in a deposition, says the frat’s lawyer, Jim Ewbank. Holloway’s American Red Cross Lifeguard certification was awarded recently enough before the incident to still be valid at the time.

But then, maybe Holloway’s thinking was clouded: he admits to having begun drinking “hours” before the party started; his lawyer admits his client had drunk “about” four beers. After the incident his blood alcohol level was measured at between .082 and .085 percent; the legal limit in Texas — for adult drivers — is .08 percent. Holloway was just 18 at the time, certainly not the legal drinking age in Texas.

Still, Alden has filed suit demanding $25 million in compensation from the fraternity because, the suit reasons, Alpha Tau Omega was negligent in building an “unlicensed pool” which “lacked proper design, lighting, warning signs and other things required under city ordinances.” Even though the frat did not supply alcohol at the party, Alden says ATO was “negligent” for allowing members and guests to drink.

“How do you put a price tag on not being able to get out of bed for the rest of your life?” Alden asked — after he hung the $25 million price tag on Holloway. Still, whose responsibility was it that he was injured?

Holloway’s, answers ATO attorney Ewbank. “His injuries were horrific, tragic and unnecessary,” he said. “But here’s a man who drank to excess and made the stupidest mistake of his life and now wants $25 million for it.”

Sources

• “Belly-Flop at Frat Party Spurs Lawsuit”, Austin American-Statesman, 15 January 2005.
• “Student Sues Fraternity after Belly-Flop”, Daily Texan, 20 January 2005.

Case Status

I was surprised to not find anything about what happened. My guess is it went to an out-of-court settlement.

My 2021 Thoughts on the Case

Again I can strongly sympathize over the terrible injury, but only one person is responsible for it.

Holloway himself did OK: after nearly a year in the hospital and rehab, returned to the school in fall 2004, and changed his major to studio art. Despite not having very good use of his hands, he could still draw. (Source, Source)

Comments and Letters

The teen Colorado girls who did a good deed for their neighbors — and were sued by their neighbors (and lost!), drew a HUGE response from readers. Here are just a few.

Andrew in Virginia: “I thought I had followed the story pretty closely when it first came out, but I didn’t realize that the girl’s families had offered to pay medical expenses before the suit was filed. That kind of helps explain why the judge awarded the $900 verdict, something I couldn’t comprehend before. It’s still sad that someone trying to do a good deed needs to pay for someone else’s unfounded anxieties.”

Douglas in Georgia: “Even given the stories you’ve published in the past, the cookie story strains the limits of credulity. It appears the Youngs have taken an overdose of stupid pills. It compounds the stupidity that others would call and threaten them. But the Youngs have absolutely brought it upon themselves in their greed for a quick and easy buck.”

John in California: “Taylor and Lindsey sound like a couple of sweethearts. I wish someone would leave a plate of cookies outside my door. Girls, you just keep on being thoughtful and doing good deeds and your lives will be filled with goodness and happiness. People like Ms. Young reap what they sow. Hence, I suppose, her miserable life filled with fear, anxiety, and stress. Taylor and Lindsey were in no way responsible for Renae’s discomfort. It can more likely be blamed on 49 years of ill feelings toward others.”

Comments from international readers have been increasing lately too.

Juan, from San Luis Potosi, Mexico: “Maybe no one knows but, did the lady — Mrs. Young — eat the cookies? I’D BET SHE DID.”

Well, someone knows, Juan! But I don’t….

Then there was the pointing out of the terrible fallout to the Youngs even though they won their lawsuit against the girls.

Joaquin in Spain: “There is an old Spanish curse: ‘Pleitos tengas, y los ganes.’ It roughly translates as ‘I wish you lawsuits, and that you win them.’”

Matt in the U.K.: “As a UK resident, we have always mocked the States for the compensation culture that pervades [the U.S.]. Unfortunately it seems to be invading the U.K. too with the ‘no win, no fee’ legal brokers that are constantly advertising on TV. I do hope that we never reach this [level] of stupidity.”

Unless the U.K. does something, Matt, I think it will. And unless we do something, it’ll continue here. My book addresses what I think we can all do.

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And now for a little editorial ranting….

Gordon, a solicitor (lawyer) in Scotland: “People like you who react with such passion (and humour) to the inequalities and injustices they perceive in society are an essential component in every true democracy.”

But after giving me hope about the legal professionals of Scotland, he snatched it away again! He told me he sent the Cookies Caper Case to one of his solicitor colleagues, and then forwarded his learned friend’s reaction back to me, which I present unedited:

1. No-one would have blinked an eye if the neighbour had just shot them dead. I’m sure it would have been accepted as a bit unfortunate but the NRA would swiftly have cranked its PR machine into gear and we’d all be marvelling about how stupid the two girls had been and how upset the poor old dear who’d murdered them was. Wicked trial lawyers getting involved is clearly a matter of much greater concern.

2. “School project”? “Baking cookies”? At 17 and 18? What a pair of arseholes. “Taylor” and “Lindsey Jo” indeed. Is their Dad Ned Flanders? Anyway, my limited experience of late-teenage American girls plus an over-excitable imagination has always led me to suspect that by this age they were up to a lot more than baking cookies of a long, hot summer’s evening.

My response: First, had the woman shot the girls she would have been arrested for murder. It’s asinine to suggest otherwise, and shows an idiotic (dare I say deliberate?) misunderstanding of American law. I’m left to conclude that this supposedly educated man considers fictional “Western” movies to be the way things are done here?

Second, nowhere does the report state baking cookies was a school project. Instead it starts with the comment that they were “out of school for the summer.” Beyond that, I of course object to the oh-so-cynical “They couldn’t have been doing anything nice, thus the lady was justified in suing because clearly the girls were being bad” theory. His evidence for this is…?

Ah, yes: that they’re Americans. Got it. How sad that there are people like him; it explains a lot about the state of the courts in English-speaking countries. How pathetic that he has allowed his view of humanity to become so jaded that there’s no such thing in his world as kind teenaged girls; let’s all hope he’s not a father. And how terrifying that he practices law. “Arsehole” indeed.

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