PAYSON, AZ — A lawsuit against the federal government has been filed on behalf of the victims and survivors who claim the U.S. government’s negligence resulted in the deaths of their loved ones, who drowned near Payson in 2017.
It has been almost three years since 10 members of a family drowned, swept away in the Water Wheel area, near Payson in July 2017.
“It's not fair because it was 10 members of my family," said Susana Villanueva Garcia, who spoke to ABC15 in July 2019, two years after her family members died.
At that moment, Villanueva talked to us about the pain of losing her son, mother, siblings, nieces, nephew, and brother in law. Three generations of her family.
Related: Mother of 2017 Payson flash flooding victims speaks out about loss
Now, seven months after our interview, ABC15 has learned Villanueva has filed a lawsuit for negligence, wrongful death, and negligent infliction of emotional distress against the U.S. government.
Through her lawyers, Villanueva declined our interview request. However, her lawyers issued a statement to ABC15 on Friday afternoon.
In part, that statement reads: "The Garcia family is suing because of the foreseeable and preventable deaths of their family. The victims were killed in Ellison Creek while seeking relief from the summer heat. Unknown to them, a thunderstorm many miles away in the watershed created a devastating watery avalanche of burnt trees, sludge, and debris that tore through the park. The Garcia family was devastated by the loss of the majority of their entire family."
We have posted the full statement at the end of this story.
According to court paperwork, her lawyers claim U.S. officials failed to protect and warn visitors in the Water Wheel area of the potential for flash flooding.
The lawsuit states that officials failed to warn people of the National Weather System flood alert that was issued the day of the tragedy. They also allege that the government failed to close the recreational area to the public.
The lawsuit also claims damages for the mental anguish, pain, grief, and loss of enjoyment of life, as well as damages for funerals and burial expenses, among others. The notice of claim states the deadly flash flood was predictable.
Could a flash flood be predictable?
“In the scientific community we know that flash floods are really hard to predict,” said Giuseppe Mascaro, a hydrologist and assistant professor at Arizona State University.
Mascaro, who is not associated with the lawsuit, spoke in general terms about how predictable flash floods are.
“There is not a way to run meteorological models to predict storms in advance, days in advance. It's hard to know when and where they're going to happen. We might know the area, but not exactly where,” he said.
In the case of the Garcia family, a flash flood alert was issued 90 minutes before they drowned. But, according to Susana, her family did not get the message since there is no cellphone reception in that area.
During our 2019 interview, Villanueva demanded a better emergency warning system be put in place.
Still almost 3 years later, not a lot has changed. The Gila County Sheriff’s Office confirmed they do not have a siren or an air horn to warn visitors in that area -- something Villanueva believed could have saved her family.
Could this tragedy have been preventable?
The lawyers representing the family claim the Highline Fire of June 2017, located in the watershed for Ellison Creek, provided enough signs to officials to prevent the tragedy.
The lawsuit states the following: “Defendant United States, and its agents and employees, knew that the monsoon storms, which fed into the Ellison Creek through adjoining waterways, would also wash debris left over from the Highline Fire into the creek and into the public recreation areas along it.”
“Defendant knew or should have known of the dangerous conditions and had ample notice and opportunity to remedy the condition, close the recreation area to visitors, or warn visitors of the flash flood danger. They knew or should have known that any person trapped or caught in flash flood waters in the Water Wheel area was likely to be seriously injured or killed.”
ABC15 reached out to the USDA Forest Service to ask if there has been any changes to their early warning system within the Tonto National Forest, but have not heard back.
The law firms representing the family are demanding a trial by jury.
Full statement from law firm representing Garcia:
The Garcia family is suing because of the foreseeable and preventable deaths of their family. The victims were killed in Ellison Creek while seeking relief from the summer heat. Unknown to them, a thunderstorm many miles away in the watershed created a devastating watery avalanche of burnt trees, sludge, and debris that tore through the park. The Garcia family was devastated by the loss of the majority of their entire family.
While the Garcia family could not have known that their family was walking into a deadly trap, the Federal Government had advance knowledge that such an event was bound to happen. The 2017 Highline Fire scorched the Ellison Creek watershed. The Federal Government was responsible for fighting the fire, and therefore undeniably knew that the fire left burnt trees and residue throughout the Ellison Creek watershed which would flow down the creek in the event of rain. The Federal Government was also aware that the annual monsoon brought with it severe flash floods which would carry the burnt residue from the watershed through the Water Wheel recreational area, which was a major attraction for families during the summer months. Despite their advance knowledge of a dangerous situation, the Federal Government did not close the recreation area. It did not close it when rains were predicted. It didn’t even post conspicuous warnings about the hidden danger of massive amounts of debris flowing through the Federal park. “Closing” the park during the monsoons could have been accomplished by posting a “closed” sign and warning the public about the potential danger.
The remaining members of the Garcia family hope that their case will bring attention to the Government’s failure to protect others from similar tragedies.
