Story originally printed in the Winona Daily News or online at www.winonadailynews.com

Published - Tuesday, May 20, 2008

Wrongful death lawsuit brought against county

Victor and Joyce Gensmer of Witoka died Aug. 19, 2007 when their Jeep Cherokee plunged into a 30-foot-washout along County Road 17 near Witoka. Their son, Billy, has filed a wrongful death suit against several Winona county agencies. (Winona Daily News/Contributed File Photo)

By Kevin Behr | Winona Daily News

Billy Gensmer blames Winona County for his parents’ deaths and is suing for more than $100,000.

Victor and Joyce Gensmer died Aug. 19, 2007, when their Jeep plunged into a 30-foot, flood-ravaged washout on County Road 17, and their son said the county and other agencies responding to the flood should have warned them of the hazardous road less than a mile away from their home.

Each of the defendants — Winona County, the Winona County Sheriff’s Department, the Winona County Highway Department and Highway Maintenance Superintendent Kevin Lindquist — denied negligence or legal responsibility in the Gensmers deaths, citing the flood’s record rainfall and “hundreds of 911 calls that night.”

The Gensmers tumbled into a “lethal and cavernous hole” created by raging floodwaters Aug. 19, 2007, on County Road 17 near their home in Witoka, Minn., the lawsuit claims. They were in a Jeep Cherokee, driving Joyce to work in Winona when they fell into the hole. They died at the scene.

According to witnesses, the highway washed out about 3 a.m. and a driver called 911 to report the gap. Another driver drove into the hole but survived the fall about two hours later. He, too, called 911. By 6:20 a.m., the road remained open and the Gensmers “unsuspectingly” drove in and died, the suit states.

Billy Gensmer’s attorney, Daniel Doda, filed the complaint March 3 and claims the county had a duty to keep County Road 17 “safe and free from hazards” and to warn drivers of dangerous conditions. The suit claims they breached that duty by failing to act and the Gensmers died as a direct result of that failure.

Doda did not return a phone call seeking comment Monday.

Attorney Stephen Andersen, who is representing the defendants, filed a response May 5 that denied all the allegations. His reply cited possible government immunity and statute of limitations issues but did not specifically outline a case. Andersen asked the court to dismiss Gensmer’s “pretended cause of action.”

Andersen said his firm, Ratwik, Roszak and Maloney PA of Minneapolis, handles many civil suits against counties but this one was “factually unusual” because of the nature of the incident and that it happened during a “hugely unusual” flood event.

“You don’t typically see people drive into a hole in the road,” he said. “Usually, it’s cars against each other.”

Both sides have been given until Jan. 20, 2009, to submit discovery to each other with a pretrial scheduled for Feb. 20, 2009. A four-day jury trial has been scheduled to begin March 10, 2009.

Contact Kevin Behr at (507) 453-3524 or at kbehr@winonadailynews.com.