Families appeal dismissal of lawsuit against airport board over deadly 2021 drag race

Five years to the day after a car left the course at the Kerrville-Kerr County Airport and plowed into spectators at a drag race, killing three people, two of the victims’ families are asking a San Antonio appeals court to revive their lawsuit against the airport board.

The families of 8-year-old Santiago Martinez and his aunt, Rebecca Cedillo, filed their opening brief Sept. 28 with the Fourth Court of Appeals. They argue that 198th District Judge M. Patrick Maguire wrongly dismissed their claims against the Kerrville-Kerr County Joint Airport Board in May.

“To hold a high-speed drag race on a public runway, the Airport Board promised the State that 900 feet of water-filled barriers would stand between the cars and the crowd,” wrote attorneys Andrew Toscano and Tyler Rutherford of San Antonio-based Gene Toscano Inc. “Barely two-thirds were installed, hundreds of feet of the spectator area were left open, and the official who made the promise never checked. Two people died in the gap.”

The families are asking the appeals court to reverse Maguire’s ruling and send the case back to Kerr County for trial. They have also asked for oral argument.

Why it matters locally

The airport board isn’t a private business. The city of Kerrville and Kerr County created it through an interlocal agreement to run the airport. Under that agreement, the city and county each cover half of any gap between the airport’s revenue and its expenses. They also split the cost of capital improvements. The county buys the board’s liability insurance, and the cost is built into the airport’s budget.

In the trial court, the board argued that even if it were found liable, it is “judgment proof” and “will legally be unable to satisfy any judgment that could be rendered against” it. The families’ attorneys call that argument premature. They say it has nothing to do with whether the court can hear the case. “A defendant does not become immune from suit by pleading poverty,” they wrote.

The crash

The crash happened Oct. 23, 2021, during Airport Race Wars 2, a for-profit “no-prep” drag race promoted by Flyin’ Diesel Performance & Offroad and its owner, Ross Dunagan. A Ford Mustang driven by Michael Gonzales lost control and veered into spectators past the finish line, an area left unprotected by barriers. Santiago Martinez and 6-year-old Daniel Trujillo-Jones were killed at the scene. Cedillo died at a hospital days later.

The brief draws on depositions from the trial court record. In them, Dunagan testified that he ordered 1,800 feet of water barriers. He said he learned the day before the race that the shipment was short and turned down replacement barriers because they wouldn’t arrive until weeks later. He held the race anyway, testifying that he decided to “make due with what we had.” He also testified that he never told participants or spectators about the shortage.

Then-airport manager Mary Rohrer had told the Texas Department of Transportation that 900 feet of barriers would line both sides of the course and extend 300 feet past the finish line. Racing isn’t a normal use of the airport, so the event needed that special state approval first. Asked in a deposition whether she verified the barriers were in place, Rohrer said, “No, I did not.”

The brief also says spectators paid “20 bucks to enter.” It says the airport board received a $2,000 payment from the event’s proceeds, which it holds in escrow.

What the families are arguing

The board persuaded Maguire to dismiss the case on several grounds. Because his order didn’t say which ones he relied on, the families must knock down every one of them. Their brief argues:

• The Texas Tort Claims Act allows lawsuits against government bodies when someone is killed by a dangerous condition of public property. The families say the gap in the barriers on the board’s runway was exactly that.
• The board didn’t simply hand the runway to the promoter. It sought state approval for the race, promised the safety barriers, and kept the right to enter the property at any time.
• Failing to carry out a safety plan the board had already adopted was an operational failure. The families say that isn’t the kind of policy decision state law protects.
• The state’s recreational use law, which limits landowners’ liability, doesn’t apply to paying spectators at a commercial, ticketed race.
• The 2023 Kerr County settlement doesn’t cover the airport board. In court, the board itself insisted it is a legal entity separate from the city and county.
• The waivers spectators signed don’t bar the claims. A parent can’t waive a child’s claims in advance, and the form was titled “Airport Race Wars,” not “Airport Race Wars 2.” The brief also says Cedillo’s family doesn’t read English and was offered no Spanish translation.

The families aren’t challenging Rohrer’s dismissal from the case. Under the Tort Claims Act, the claims against her had to be dropped once the board itself was sued.

The board is represented by Ryan S. Henry and Nicolas Pina of the Law Offices of Ryan Henry in San Antonio. The board has not yet filed its response with the appeals court.

How the case got here

The Martinez and Recio Palacios families first sued the city, the airport board and Rohrer in Kerr County district court. The Jones family’s claims were later consolidated into the same case. The claims against the city were split into a separate case and dismissed with prejudice. The Jones family’s claims were split off as well, and the Jones family is not part of this appeal.

In September 2023, all three families settled their claims against Kerr County for a total of $300,000. The county denied any liability. The settlement letter lists the airport board as neither a party nor a signer.

Maguire heard the board’s motions April 9 and signed the order dismissing the case May 1. The families asked for a new trial, but that motion was overruled automatically when the judge didn’t rule on it in time. They filed their notice of appeal July 30.

The Bexar County case

A separate lawsuit, Abel and Karla Martinez Jr., et al. v. Flyin’ Diesel Performance & Offroad LLC, Jordan Ford Ltd., Ross M. Dunagan, et al., remains pending in the 45th District Court in Bexar County. That case targets the promoters and others behind the event. The Jones family is part of that case.