A federal magistrate judge in Sacramento has found that negligence on the part of National Park Service officials caused a 9-year-old boy to plunge to his death in July 2009 off a mountain trail in Lassen Volcanic National Park.
U.S. Magistrate Judge Gregory G. Hollows recommended in a document filed Wednesday that U.S. District Judge Garland E. Burrell Jr. "enter an order, establishing for all purposes in this case, that (the United States) is deemed to have been negligent in causing the death of Tommy Botell and injury to (his 13-year-old sister)."
The United States is the sole defendant in the Botell family's wrongful death and personal injury lawsuit seeking monetary damages in an unspecified amount.
Hollows wrote in his 21-page findings and recommendations that, while the top official at the park ordered the destruction of evidence that would have shown negligence on the part of her and members of her staff, it is clear that she and others who worked at the park knew a retaining wall that crumbled out from under the children had long been unsafe.
"Over the course of hearing several motions...., 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," Hollows wrote. ".... What is less clear, although highly suspicious, is whether defendant (destroyed) evidence, other than the wall, that pertains to its defense."
The magistrate recounted a significant amount of information that points to additional destruction of evidence and he expressed skepticism about the government's version of events. He wrote that the question as to what other evidence may have been deliberately destroyed can be answered only with an evidentiary hearing, which Burrell would have to order.
Hollows recommended to Burrell that any determination in that regard be deferred until the court is able to hear and see live testimony.
Call The Bee's Denny Walsh, (916) 321-1189.