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A case involving a University student, his former fraternity and a paralyzing belly-flop ended in mistrial on Monday after the jury had been deadlocked for three days. The case will be put back on the central docket and rescheduled, possibly for next year.
The jury was attempting to decide if Alpha Tau Omega shared any fault in Wesley Holloway's paralysis after he belly-flopped into a makeshift pool fraternity members built for a foam party.
"The jury had sent out a note on Friday saying they were deadlocked, but the judge encouraged them to continue trying," said Robby Alden, Holloway's attorney.
In May 2003, Holloway, then a member of ATO, attended a foam party at the fraternity house. At the party, Holloway attempted to belly-flop into a makeshift pool filled with less than a foot of water. The fraternity's lawyer said the pool was intended to be used for washing off soap from the foam-filled room inside the ATO house. Holloway hit the opposite side of the 12-foot-wide pool and was paralyzed from the chest down. According to witness statements, Holloway had between four and five beers before the party, but was not served alcohol at the fraternity house. Holloway was seeking up to $25 million to cover past and future medical costs, pain and suffering, loss of income, impairment and disfigurement.
Alden said in most quadriplegic cases juries award anywhere from $15 million to $30 million. "We are not asking for $25 million. We are asking for whatever amount the jury will award up to $25 million."
Alden said the trial date will be reset once the attorneys can find when it will be most convenient for all of the witnesses and parties in the case. Alden speculated the case may be reset for early January while Holloway and ATO members are out of school on vacation, or for next summer depending on how full the central docket is.
The jury went into deliberation on Thursday attempting to answer three questions. The first was whether Holloway and the fraternity were at fault for the accident, and it was decided by the jury that both were.
"They were deadlocked on the second question," Alden said, which would have decided how much each party was to blame for. If the jury decided Holloway was more than 50 percent at fault then he would receive no recovery from the fraternity.
"It was a six-and-six split, and they never wavered," said James Ewbank, one of the fraternity's attorneys. Ewbank said six of the jurors believed Holloway should take most of the blame, and six of the jurors decided the blame was equal or that it was ATO's fault. The jury never got to question three, which would have determined the cost of damages.
Ewbank said the hung jury surprised him. "I believed that in Travis County, personal responsibility for your actions was a strong theme," Ewbank said. "The fraternity did not serve Wes alcohol, and he was a lifeguard." According to Ewbank, before the case he was certain at least 10 of the jurors would allocate responsibility to Holloway.
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