90-Minute Warning Delay - Who Is Legally Liable to Flood Victims?

WASHINGTON - July 10, 2025 - PRLog -- A report showing that Kerr County Officials Waited 90 Minutes to Send Emergency Alert after Requested, Dispatch Audio Shows (https://abcnews.go.com/US/kerr-county-officials-waited-90-minutes-send-emergency/story?id=123631023), and that "some messages didn't arrive until after 10 a.m. By then, hundreds of people had been swept away by the floodwaters" raise vital issues about which people and/or which agencies might be financially liable for the huge damages suffered as a result of the flooding, including more than 100 lives lost.

An important question is who can be held legally liable for the death and destruction caused by apparent failures to warn and/or delays in warning about the sudden massive flooding, suggests public interest law professor John Banzhaf, who notes a unanimous U.S. Supreme Court decision holding that "Texas state law provides a cause of action by which property owners may seek just compensation against the state" under certain circumstances. DEVILLIER ET AL. v. TEXAS (https://www.supremecourt.gov/opinions/23pdf/22-913_3204.pdf)

Unfortunately, with many officials refusing to answer probing questions, those who may ultimately supply the answers could well be lawyers suing on behalf of the victims since they can use the powerful tools of pre-trial civil discovery - which include demands for testimony under oath and mandatory disclosure of all relevant documents - to discover more than members of the press and governmental officials can.

The tool to prevent this from happening is an "evidence preservation letter";  a formal demand sent by an attorney preparing to bring a civil lawsuit, and sent to potential defendants and even to third parties, and demanding that they retain all evidence relevant to a potential legal claim.

It is sometimes called a "spoliation letter" because any failure to carefully preserve potential evidence, once such a letter is received, can create at new civil action known as "spoliation of evidence," and/or lead to a judge's instruction that the failure to preserve the evidence creates a presumption of legal liability, explains the law professor.

Although there seems to be plenty of negligence and potential defendants around, it not clear whether any defendant, other than the camp owners and operators, can be held legally liable because of the legal requirement of "duty."

But whether or not, under the apparently relevant Texas statutes [e.g., Tex. Gov't Code § 418], there is an affirmative legal duty imposed upon various official bodies or officials to provide timely warnings, does not appear to be clear.

In any event, we should reasonably expect a rush to the courthouse as lawyers seek to be the first to bring a multi-million dollar legal action seeking damages for the victims of the flood, predicts Professor Banzhaf.

http://banzhaf.net/   jbanzhaf3ATgmail.com  @profbanzhaf