UPDATE – AUGUST 2013
Judge Grants Family’s Motion For Summary Judgment
A federal judge has ruled in favor of a Red Bluff (Tehama County) family that sued the federal government for the death of a 9-year-old boy who was crushed by a trailside wall in Lassen Volcanic National Park in 2009. Steve Campora and Catia Saraiva filed a motion for summary judgment seeking to prevent the United States from asserting that it had the discretion not to repair, close or warn of the danger on the Lassen Peak Trail in July 2009. U.S. District Judge Troy L. Nunley in Sacramento struck down the government’s defense Tuesday that it was within the National Park Service’s discretion whether to repair or maintain the stone retaining wall that failed, killing Tommy Botell and seriously injuring his sister Katrina, who was then 13. The ruling came four years and one day after Tommy Botell’s death.
The family was at the park to celebrate the birthday of Thomas Botell, Tommy’s father, when the boy and his sister sat on the retaining wall to pose for a picture.
The weakened wall cracked under their weight and a large section of the wall rolled over the two young siblings as they tumbled down the slope. Tommy’s brain stem was crushed, giving him only a few minutes to tell his mother that he was hurting before he died.
The family will return to court Sept. 16 when it is determined what damages the federal government should pay. Documents obtained during the course of the lawsuit revealed that park officials knew the wall on Lassen Peak Trail had sustained enough damage from water runoff and heavy use since 1994 to make it a safety hazard.
Judge Nunley found that the park had a mandatory safety program that its rangers had not followed when it came to the wall. That negated the government’s argument that it could not be penalized for not maintaining the wall or closing the trail because the rangers were allowed to do what they thought best, the judge said. “The park’s safety program mandated the closure of known dangers such as the retaining wall,” Judge Nunley wrote. “The safety program constituted a policy directing mandatory and specific actions that were admittedly not followed.”
After the accident, a U.S. magistrate found that numerous emails, files of the park’s chief of maintenance and evidence about the deteriorating condition of the wall had been destroyed on the orders of the park’s superintendent, Darlene Koontz. U.S. Justice Department attorneys said that this was done to protect the public, but Judge Nunley ruled that by committing these acts, the government had forfeited its right to deny negligence. The Justice Department did not return calls for comment, nor did Koontz, who is still the park’s superintendent. The Botell family saw the ruling as one in a “series of victories along the way,” Saraiva said. “Early on, the Park Service just refused to acknowledge they did anything wrong,” Campora said. “There’s a certain vindication for the family that somebody now has to be responsible for what they did — that somebody is saying to the United States government, ‘You have to be responsible for what you did.'”
UPDATE – MAY 2013
Judge Imposes A Finding Of Negligence On The United States Of America As A Sanction For Spoliation Of Evidence
Court’s Order – May 14, 2013
Adopting the March 20, 2013,
Findings and recommendations in full
Motion – March 20, 2013
Findings and recommendations
Tommy Botell, a 9-year-old boy who loved everything from milkshakes and hamburgers to camping and Indiana Jones movies, died July 29, 2009, after a rock retaining wall on the popular Lassen Peak Trail collapsed while he and his then-13-year-old sister, Katrina, were sitting on the wall during a family hike to the top of Lassen Peak in the Lassen Peak National Park. Tommy’s parents, Thomas and Jennifer Botell, and his sister, Brittany, witnessed the incident.
Tommy died at the scene after the wall, estimated to weigh 400 to 600 pounds, rolled over him. Katrina suffered a head injury and facial fractures as a result of the accident. Dreyer Babich Buccola Wood Campora, LLP, filed a wrongful death lawsuit on behalf of the family in U.S. District Court against the federal government, claiming park workers were well aware of the trail’s hazardous condition, but failed to adequately maintain the trail and its rock walls, thereby exposing hikers to unreasonable danger. The park ignored the danger posed to visitors by the retaining walls and failed to conduct mandatory inspections of the trail.
During the course of discovery in this case, it became apparent that relevant evidence had not been preserved and/or had been destroyed. On Dec. 24, 2012, Steve Campora and Catia Saraiva filed a motion against the United States seeking sanctions based on spoliation of evidence. On March 20, 2013, Federal Magistrate Judge Gregory G. Hollows issued an order that stated:
“Over the course of hearing several motions to compel brought by plaintiffs, it has become all too apparent that defendant has purposely destroyed material evidence in this case, specifically the retaining wall that caused Tommy Botell’s death and injury to his sister, plaintiff K.B. For this reason, the court must recommend sanctions in the form of a finding of negligence by defendant in causing this death and injury.
Magistrate Judge Hollows made the following factual findings:
- Defendant destroyed a critical part of the remaining “unsafe” part of the wall for no apparent purpose, other than to render the scene degraded in terms of any complete investigation.
- Regulations required that the trail be closed for investigative purposes, but the trail was not totally closed, if at all, and no investigation of the accident site was made until after the accident site was appreciably changed.
- There is a complete lack of evidence of communication or documentation by Darlene Koontz concerning her decision to destroy the wall.
- Daniel Jones, as LAVO chief of maintenance, should have maintained records regarding the trail, but he destroyed all of his files when he retired in December 2009 or January 2010.
- The original draft of the Dolan report was destroyed after plaintiffs’ preservation request was made.
- No preservation instructions were given to park employees, and as a result, many emails were destroyed.
- Park officials failed to follow policies in regard to the Foster investigation, which demonstrates that preservation of the wall was material to the investigation.
On May 14, 2013, Federal Judge Nunley adopted the findings and recommendations of Magistrate Judge Hollows and issued a ruling establishing that the United States is deemed to have been negligent in causing the death of Tommy Botell and injury to plaintiff K.B. The court reserved an evidentiary hearing on additional sanctions until after a hearing on plaintiff’s motion for summary judgment in June 2013.
Steve Campora and Catia Saraiva prosecuted the suit on behalf of the Botell family. The case settled in February of 2013 for $3.5 million dollars.