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A highway tragedy heads for trial

September 3, 2018 GMT

Even in the bunkers of a courtroom, the adversaries agree on one part of a chilling case.

Clara Avina, drunk on booze, wired on cocaine, got behind the wheel of her car and turned it into a bullet.

She sped down the wrong lane of Interstate 25. Out of control in every way, Avina slammed into an oncoming Volkswagen Tiguan at milepost 285 outside Santa Fe.

She killed the other driver, Anton Gress, a 23-year-old who had spent the night working.

“He never had a chance to touch his brakes,” said Daniel O’Friel, the attorney for Gress’ estate.

Avina, 43, also died in the crash two years ago. A toxicology test found cocaine in her system. And her blood-alcohol level was 0.29, more than three times the legal limit for a driver.

Avina’s crime could have been prevented. All the drunken woman had to do was confine herself to a place where she couldn’t hurt anyone.

O’Friel says Avina bears most but not all of the blame for the fatal crash. This is where the aftermath of a tragedy turns contentious.

O’Friel last week argued to state District Judge David Thomson that the New Mexico Department of Transportation also is culpable in Gress’ death.

At the heart of O’Friel’s case is his theory that Avina entered I-25 the wrong way at Exit 290, the Lamy interchange. This is significant based on the state government’s own warnings about the dangers of that particular interchange.

Richard Mobarak, an assistant state traffic engineer, authored a report in June 2008 titled: “Recommendations for Wrong-way Movement Warning Signs and Devices at I-25 Exit 290, the Lamy Interchange.”

Mobarak said highway safety would be improved if this interchange were equipped with a video detection system “to warn both the errant vehicle and the traveling public. … As a rule, video detection systems have proven to be mostly reliable in this and other areas of the state. Also with coordination between NMDOT and the New Mexico State Police, nearby law enforcement can be notified of the wrong-way entry by means of a signal from the detectors.”

The Department of Transportation did not make the recommended improvements at Exit 290. O’Friel says Mobarak’s report proves the state knew of the dangers wrong-way drivers posed at the Lamy interchange but did nothing to lessen them.

This failure to act, O’Friel says, contributed to Gress’ death.

Ripley Harwood, an attorney from Albuquerque, is representing the state in the lawsuit brought by Gress’ estate. He calls O’Friel’s argument pure speculation.

Nobody knows if Avina launched her deadly wrong-way drive at the Lamy interchange. Harwood seized on this lack of direct evidence in trying to convince the judge to throw out the lawsuit.

“Mr. O’Friel has nothing but a bunch of hearsay,” Harwood said.

But a passing motorist saw Avina’s car traveling the wrong way on I-25 at milepost 287. This circumstantial evidence is part of O’Friel’s reasoning that Avina most likely entered the wrong lane of the highway at the Lamy interchange.

Judge Thomson mentioned that point, then rejected Harwood’s argument. Thomson ruled that a jury should hear the evidence and decide if the state is partly responsible for Gress’ death.

The case is scheduled for trial in October.

O’Friel said wrong-way drivers are a danger all over the country. Other states, such as Arizona and Illinois, have equipped troublesome interchanges with detection systems and even horns that blare when a wrong-way driver enters a highway. New Mexico should have done the same, he said.

Another lawsuit brought by Gress’ estate has been settled. It focused on the conduct of a business that enabled Avina to drive when she was in no condition to do so.

She was drinking at PC’s Restaurant and Lounge on Airport Road. A barkeep, seeing that she was intoxicated, took away her car keys. But the barkeep negated this smart move with an irresponsible one.

A stranger volunteered to drive Avina home. The bartender handed him Avina’s car keys.

The stranger was later identified as Fidel Delgado. He stopped at a convenience store to buy beer, of all things. And he left Avila’s car idling when he went in the store.

Avina slid into the driver’s seat and took off alone. Soon after, she killed Gress and herself.

O’Friel obtained an out-of-court settlement from PC’s Restaurant and Lounge. The terms are secret.

Despite the saloon’s irresponsibility, O’Friel says Gress would still be alive if the Department of Transportation had followed its own study or a joint memorial from the state Legislature in 2007. The memorial said the department should “address the problem of wrong-way drivers on New Mexico’s interstate and limited access highways and lead to the development of effective countermeasures.”

O’Friel told the judge, “Had they done that, we would not be here today.”

A jury gets to decide if he’s right. Defense lawyer Harwood will spread the blame around. He has many targets — Avina, the bartender who gave away her car keys and the man who promised to get her home safely, only to fail foolishly.

This was no perfect storm. Gress, the only innocent, died because of imperfections all around him.

Ringside Seat is an opinion column about people, politics and news. Contact Milan Simonich at msimonich@sfnewmexican.com or 505-986-3080.