Tailgating responsibility an issue in lawsuit in USC football fan’s fight death

jmonk@thestate.comJanuary 3, 2014 

— A lawsuit filed in connection with a University of South Carolina football fan’s gruesome fighting death after a 2010 game seeks to hold people who control tailgating parties responsible for potentially irresponsible behavior.

If successful, the civil lawsuit, filed in Richland County circuit court, would break new legal ground because up to now, no similar case has been brought in South Carolina about tailgating, said attorney Doug Jennings of Bennettsville.

“We think this lawsuit is primarily focused on the responsibility owed to the public surrounding the partying and drinking atmosphere, particularly at USC football games, when there is a virtual nonstop party for hours and hours in various parking spaces leading up to a big game,” Jennings said in an interview.

Under the legal principle at issue, bars already are held responsible for serving too much liquor to customers who then leave and get involved in car accidents that cause death or injury to others, Jennings said.

Jennings and attorney Carl Solomon of Columbia represent the family of Martin Gasque, 20, whose head was crushed after he fell under the oversized wheels of a pickup truck during a fight outside Williams-Brice Stadium with Alabama fan Curtis Simms.

Simms was tried last year on manslaughter charges. After a six-day trial, a Richland County jury found him guilty of breach of peace in connection with Gasque’s death. Judge Diane Goodstein gave Simms five years. Witnesses said Simms punched Gasque in the face, knocking him down and under a moving pickup truck.

In addition to naming as defendants Simms and Adam Paxton, who drove the pickup truck that ran over and killed Gasque, the lawsuit names Dustin Lindsey, whom the lawsuit says invited Simms to a tailgating party where alcohol was served; and Edward Snow, Debra Snow and Richard Lauber, who “owned, managed and/or operated” the Shop Road property where the tailgating party was held. Dustin Lindsey, a former USC football player, leased a tailgating space at the property owned by Richard Lauber and Debra Lauber Snow and managed by Edward Snow, according to legal papers. Simms was Lindsey’s guest that day at his tailgating space.

All six defendants in the lawsuit have denied responsibility for Gasque’s death. In court fillings, defendants raise various defenses, including that Gasque, by his drinking, was wholly or in part the cause of his own death.

“The defendant is not liable to the plaintiff ... in any way,” attorney Todd Ellis of Columbia said in his answer for Lindsey.

The criminal trial over Gasque’s death last January and February opened a window into a world of fan mania and marathon drinking by some tailgaters who never go inside the stadium to watch the game.

Undisputed trial evidence said both Gasque and Simms — neither of whom attended the football game — tailgated with friends in separate areas outside the stadium and drank alcohol liberally. That day, Oct. 9, 2010, underdog USC beat then-No. 1-ranked Alabama in a nationally televised game.

According to his autopsy, Gasque at the time of his death had a .23 blood alcohol content, three times what is considered legal evidence for impairment. In a statement to police shortly after Gasque’s death, Simms admitted drinking 10-15 beers and three liquor-laced Jell-O shots the day of the fight.

Before their 30-second chance meeting that ended in Gasque’s death, the two men had never met.

According to testimony, Gasque, a USC fan, was a passenger in a four-door pickup with oversized tires driven by Paxton, his close friend. As they drove along Shop Road in highly congested vehicle and foot traffic just after the game, Gasque was calling out his window, razzing Alabama fans and cheering with USC fans.

While stopped in traffic near The Gates condominiums a block or so from the football stadium, Gasque exchanged words with Simms, a passenger in another four-door pickup that was trying to move into the traffic flowing along Shop Road. Simms, wearing a red Alabama shirt and an Alabama baseball hat, got out of his pickup.

Witnesses at the trial said Gasque exited his truck to face Simms, who is 6 feet 3 inches tall and weighs 285 pounds. Gasque was 5 feet 10 inches tall and weighed 168 pounds, according to testimony.

Simms hit Gasque either once or several times, witnesses said. Gasque didn’t try to hit Simms, they testified.

Once hit, Gasque collapsed to the roadside and rolled under the pickup his friend was driving.

Paxton, then 20, decided to turn his car wheel right and drive off Shop Road. As Paxton did so, moving slowly, his oversized right rear wheel went over Gasque’s chest and head, killing him.

Simms, who is in prison, is the only defendant in the wrongful death suit who has not has not filed an official answer to the civil lawsuit.

Columbia attorney Johnny Gasser, who represented Simms in the criminal trial, declined comment on the Gasque civil lawsuit, saying Simms’ criminal case is on appeal to the S.C. Supreme Court. Gasser still represents Simms.

During the trial, Gasser argued to the jury that Paxton — not Simms — was to blame for Gasque’s death, since he should not have veered off Shop Road without making sure where Gasque was.

Although Judge Goodstein originally sentenced Simms to five years, Goodstein — on a motion by Gasser that the sentence was too severe — later reduced Simms’ prison time to three years.

Simms is now slated to be released in August, according to S.C. Department of Corrections inmate records.

Jennings said his civil action has a long way to go, but the bottom line is that people holding tailgating parties have “a duty of due care to the public” when allowing liquor to be served.

“The lawsuit is in its early stages,” Jennings said.

According to legal filings, other lawyers in the case are James Werner and Lawrence Hershon, both of Columbia, representing Lauber, Snow and Snow; and Trevor Cangelosi, representing Paxton.

Reach Monk at (803) 771-8344.

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