CVN screenshot of plaintiff attorney Neal Flagg delivering his opening statement
Dallas, TX - A Texas state court jury heard opening statements Thursday in a lawsuit alleging a damaged highway safety device called a crash cushion caused a man’s fatal injuries in a single-vehicle accident, and the full trial is being webcast and recorded gavel-to-gavel by Courtroom View Network.
The widow and surviving children of Timothy Rush sued the Texas Department of Transportation after Rush, then 34, died following a collision with a supposedly collapsed and non-functional crash cushion on I-35 in 2021. Crash cushions, also known as impact attenuators, are placed near fixed highway structures to absorb kinetic energy in the event of an accident.
An attorney for the Rush family told a Dallas County jury that TX DOT knew the cushion needed replacement and failed to warn drivers, however the defense argued liability for the crash rests solely with Rush and that they learned about the damaged cushion too soon before the accident to repair it.
Sign up today for a monthly or annual subscription to CVN’s online trial video library and get unlimited live and on-demand access to these proceedings. In addition to this trial, a CVN video library subscription includes hundreds of other gavel-to-gavel civil trials featuring some of the top attorneys in Dallas and around the country.
Related Coverage: Dallas Jury Awards $71.95M In Wrongful Death Scissor Lift Trial, Beating $1.25M Settlement Offer
Neal Flagg of Flagg Law Group, representing the Rush family, told jurors that the crash cushion sustained damage 11 days before Rush’s death and that TX DOT supposedly received a report about its condition, which should have prompted immediate action.
“It was rendered completely non-functional,” Flagg said. “It provided no protection whatsoever.”
Flagg told jurors that while trying to merge with traffic near an exit that Rush suddenly faced the “split second decision” of colliding with other cars and possibly causing additional accidents or hitting a crash cushion. Rush drove into the damaged attenuator, which Flagg said could have saved his life if it functioned properly.
Flagg argued TX DOT regulations called for a damaged crash cushion to be immediately replaced, and that the damaged unit should be affixed with warning signs until it can be removed.
“Neither of these were done prior to Tim’s vehicle colliding with it,” he said.
Flagg did not ask for a specific amount of damages, but he told jurors the financial and emotional toll of losing a husband and father to young children has been substantial.
Defense attorney David Strain disagreed with Flagg’s description of the accident, telling jurors witnesses saw Rush briefly exit the highway and then attempt to re-merge. He said while Flagg was blocked by traffic on his left he still could have exited the highway, and that he didn’t have a choice solely between impacting the crash cushion or causing other accidents.
“There is zero evidence of that, “ Strain emphasized.
While acknowledging Rush’s death as tragic, Strain argued he ultimately bore responsibility for driving into the attenuator under otherwise normal, clear conditions.
“This is not a TX DOT vehicle that pulled out in front of him,” Strain argued. “This is something that’s easily visible.”
Strain acknowledged receipt of a damage report for the cushion prior to the accident. He said the DOT acted appropriately by immediately putting it on a repair list, but that contractors then have discretion in how to prioritize repairs, and this seemingly non-emergency project was among 17 others that all had to be completed within a set time period and couldn't be done simultaneously.
Strain said it’s extremely unfortunate this accident happened so soon after the damage was reported and before the contractors got to this particular location, but he suggested that doesn’t mean the DOT has any responsibility for Rush's death.
“TX DOT doesn’t have a crystal ball,” he said.
The trial is taking place before Judge Martin Hoffman in Dallas County’s 68th Civil District Court. Proceedings were suspended Friday for a major winter storm and are expected to reconvene on Monday.
The case is captioned Rush, et al. v. Texas Department of Transportation, case number DC-21-14795.
E-mail David Siegel at dsiegel@cvn.com