Courtesy Botell Family / Botell family

Tommy Botell Jr, 9, died when a retaining wall he sat on crumbled in Lassen Volcanic National Park in 2009.

Feds settle with family whose son died in park

Published: Wednesday, Feb. 19, 2014 - 9:07 pm

The United States has agreed to pay a Tehama County family $3.5 million to extract itself from a lawsuit over the death of 9-year-old Tommy Botell in Lassen Volcanic National Park.

The youngster perished during a 2009 outing when a wall that had deteriorated from lack of maintenance gave way, rolled over him, and crushed his brainstem as his horrified family looked on.

The ensuing lawsuit on behalf of the family was marred by what Sacramento federal judges perceived as unethical conduct on the part of some park employees, particularly Superintendent Darlene Koontz.

Defense of the suit began to disintegrate in scathing findings and recommendations authored by U.S. Magistrate Judge Gregory G. Hollows, who said Koontz knew the wall was dangerous yet didn’t fix it, then attempted to orchestrate a cover-up following the incident by causing evidence to be destroyed and lying under oath in a deposition.

U.S. District Judge Troy L. Nunley ultimately stripped the government of its defenses, which led to the settlement.

“The conduct of the National Park Service and some of its employees, leading up to this tragedy and during the litigation, make me ashamed that they represent the United States of America,” said Steve Campora, lead lawyer for the Botells.

Through attorney Catia Saraiva, who worked with Campora in pressing the Botells’ claims, the family issued this statement Wednesday:

“This was a horrific event that no family should have to endure. Our grief and loss were compounded by the refusal of the Park Service to accept responsibility and to act responsibly during the lawsuit.”

U.S. Attorney Benjamin Wagner, whose office handled the defense of the Park Service, said Tommy’s death was a tragedy both for his family and the Park Service, and added that he is glad to have the matter behind him.

“As the settlement agreement indicates,” Wagner said, “it is in no way intended to be, and should not be construed as, an admission of fault or wrongdoing on the part of Park Service employees.”

The government’s last stand was based on the so-called “discretionary function” statute. It divests federal district courts of jurisdiction over claims based on “the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the government, whether or not the discretion involved (was) abused.”

Thus, government lawyers argued, even if park employees knew the wall posed a serious danger but did not repair it or block public access, the court had no jurisdiction.

Nunley made short work of that position. He described it as “unavailing” because the park’s safety program mandated closure pending corrective action of known dangers such as the retaining wall that crumbled under Tommy and his sister when they sat on it. The judge found that “the safety program constituted a policy directing mandatory and specific actions that were admittedly not followed.”

Under the terms of the settlement, the family – mother, father and two daughters – will receive direct payments totaling $2.85 million, out of which its attorneys will be paid. In addition, the government will pay $650,000 for annuities to benefit the older daughter, who sat with Tommy on the retaining wall next to a mountain hiking trail and who suffered severe physical and psychological injuries when the wall collapsed; and the younger daughter, who witnessed the death of her brother and suffered emotional injuries.

As parts of the wall fell upon them, the two children tumbled about 30 feet to the trail below, where the rest of the family hiked behind them. Their father managed to grab his daughter. The mother scrambled to Tommy.

“Mommy, I can’t see,” he said, and died in her arms.

Call The Bee’s Denny Walsh, (916) 321-1189.

Read more articles by Denny Walsh

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