A confidential settlement has been reached in a lawsuit filed by the family of a couple who drowned while tubing during high river flows on the Guadalupe River near New Braunfels in 2010, an attorney in the case said this week.
The suit, which alleged gross negligence and wrongful death, was filed in U.S. District Court in San Antonio against the ownership of Whitewater Sports, the FM 306 tubing outfitter that on Sept. 17, 2010, rented tubes to Mario Morquecho and wife Maria Mendoza, a vacationing couple from Nuevo Leon, Mexico.
The suit was filed by attorney Derrel Luce of Waco on behalf of Carmen Farias of Nuevo Leon and the rest of the couple’s six children, two of whom were on the ill-fated tubing trip.
“The family would like to say that the reason they brought the lawsuit was not all about money — they wanted to try to improve safety with respect to tubing on the Guadalupe in Comal County, especially outside the city limits of New Braunfels — and a lawsuit was the only vehicle to accomplish this goal available to them,” Luce said Thursday.
“This family loved aquatic activities as a form of family fun. They traveled to New Braunfels for a family celebration that ended in tragedy. They hope their family's tragedy, and any focus on it created by their lawsuit, will serve as a catalyst for changes in Guadalupe River use policy at high river-flow rates that will allow future visitors to Comal County to enjoy the Guadalupe River safely and without harm to their family,” Luce said.
He said that while the City of New Braunfels, as a safety measure, has a law in place that prohibits tubing when flow levels on the Guadalupe reach 1,000 cubic feet per second (cfs), the city ordinance does not apply to businesses or tubers outside the city limits of New Braunfels.
“The family learned during the course of this litigation that some outfitters like Whitewater rely on guidelines provided by the Water Oriented Recreation District of Comal County (WORD) in deciding when and under what river conditions to rent tubes,” Luce said. “The family urges WORD to adopt the City of New Braunfels’ ordinance standard and forbid its permit holders in Comal County from renting tubes when the Guadalupe flow level is at or above 1,000 cfs.”
The suit said flow on the day of the drownings was 1,070 cfs.
Luce said WORD should encourage guided rafting trips under such high-flow conditions for those who want an outing on the river.
The attorney also said the family would like for WORD to have a study performed by a qualified white-water rescue organization to identify dangerous areas on the river that can trap unsuspecting tubers at various river flow levels.
Luce asked that WORD then “take the appropriate steps to warn tubers of those locations and provide properly trained and equipped lifeguards at places known to have the potential to trap and pull under tubers at certain flow levels.”
One such location is Kanz Dam, where the drownings of Morquecho and Mendoza occurred, he said.
“A properly trained lifeguard with a throwable floatation device attached to a rope would have prevented their family's tragedy,” Luce said. “There is a very comfortable, convenient, and accessible location at an area very near to and with excellent visibility of the Kanz Dam crossing where a lifeguard could comfortably sit during river flow rates high enough to present a danger.”
WORD General Manager Mike Dussere said Thursday that any response to the family’s requests from WORD would need to be based on a WORD board of directors’ discussion and decision.
“I will bring this matter to the board for their consideration,” Dussere said.
Board meetings are generally held on the third Wednesday of each month at 5:30 p.m. at the WORD office at 1928 FM 2673 near Canyon Lake.
Attempts to contact Whitewater management via phone and email Thursday and Friday for comment were not immediately successful.
The suit contends that defendant William Korioth of Austin, who had “financial interest, control and ownership” of Whitewater, was a board member of WORD at the time of the drownings. He is no longer on the board.
Details of lawsuit
In the suit, the family contends that when they rented tubes and life vests that day, Morquecho and Mendoza asked a Whitewater Sports employee whether the river was safe to float.
They were told it was perfectly safe — as long as they crossed Kanz Dam at its center. The suit contends that Whitewater knew of and should have warned the family of the dangers presented by Kanz Dam during high flows.
The family made it safely across the dam once by crossing at the end of the dam at the river’s edge, the suit said. It was on a second trip that Mendoza — following Whitewater’s instructions for safe dam crossing — attempted to float over the center of the dam, according to the suit.
Still seated in her tube, she became trapped in the hydraulic current “created by the rapidly flowing river water over the dam,” the suit said.
The other three tubers in her party followed her over the dam’s center.
Mendoza’s two daughters, Carmen and Evangelina, tried to free her from the current, but she flipped over into the water.
The lawsuit describes a frantic scene as the woman’s husband and daughters struggled to save her, including an attempt to rescue Mendoza by pulling her out of the water by her hair.
While their parents drowned, the daughters found refuge from the current at a safe place in the river, from which they were later rescued by emergency personnel, according to the lawsuit.
Several bystanders who had joined in the rescue attempt also had to be rescued by emergency personnel, the suit said.