Judge finds National Park Service negligent in boy's fatal fall at Lassen park

03/22/2013 12:00 AM

05/15/2013 9:55 AM

A Sacramento federal magistrate judge has found that negligence on the part of National Park Service officials caused a 9-year-old boy to plunge to his death off a mountain trail in Lassen Volcanic National Park in July 2009.

In his findings, U.S. Magistrate Judge Gregory G. Hollows also rebuked the park's superintendent for the destruction of critical evidence in the case and for lying about an investigator's attempt to interview her.

"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 in his 21-page findings and recommendations that were forwarded to U.S. District Judge Garland E. Burrell Jr.

The Tehama County boy and his family were visiting the park in the summer of 2009 when he and his sister sat to take photographs on a retaining wall. The wall gave way, hurtling both children down the mountainside.

The Botell family filed a wrongful death and personal injury lawsuit against the federal government in 2011, seeking an unspecified amount of monetary damages.

The parents, who have two daughters, "are very pleased with the court's ruling, but not ready to talk publicly about it," Sacramento attorney Steven Campora, who is lead counsel for the family, said Thursday.

Hollows recommended Wednesday that Burrell "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 and injury to his sister.

It would be rare for a district judge such as Burrell to reject the findings and recommendations of a magistrate judge.

Hollows found that even though Lassen park Superintendent Darlene M. Koontz had evidence destroyed – namely the retaining wall – that would have exposed the culpability of Koontz and some of her staff, it is still clear that she and others who worked at the park knew the wall that crumbled from under the children had long been unsafe.

"What is less clear, although highly suspicious, is whether defendant (destroyed) evidence, other than the wall," Hollows wrote.

The magistrate judge described a significant amount of information pointing to destruction of other evidence, and he expressed skepticism about the government's version of events and the credibility of some of its witnesses.

The question of whether other evidence was deliberately destroyed could be answered only with an evidentiary hearing that Burrell would have to order, he wrote.

At the very least, Koontz and her staff failed to follow legal, regulatory and policy obligations to preserve relevant records that were shredded following the accident, Hollows wrote.

Moreover, his report said Koontz allegedly signed a declaration that was false in order to get the case dismissed before pretrial testimony and before park records could be obtained by attorneys for the Botells.

Attorneys in the case have 21 days after they are served with the findings and recommendations to object to them and reply to the opposition's objections. Burrell will then deem the matter submitted, call for further briefing, or schedule oral arguments.

The Sacramento U.S. attorney's office, which is defending the National Park Service, said Thursday the government "plans to file objections to the magistrate judge's recommendations in two weeks."

Phone calls and emails seeking comments were directed Thursday to Koontz at the Lassen park, the Washington, D.C., headquarters of the National Park Service, and the headquarters of its Pacific West Region in San Francisco.

"We're not able to provide comment on ongoing litigation," said Lisa Wilkolak, a spokeswoman for the park.

During her deposition, Koontz reviewed her earlier declaration that she was unaware of any statute, regulation or policy that the rock walls along the Lassen Peak Trail should have been maintained or inspected in 2009, and testified that was a truthful statement.

"This statement came after Koontz had just finished testifying that she was aware of a mandatory policy regarding the same subject, requiring closure of facilities that pose hazards," Hollows wrote.

On March 18, 2010 – nearly eight months after Tommy Botell tumbled down the side of Mount Lassen and 15 months before the lawsuit was filed – Koontz issued a prepared statement.

The accident "was unforeseen as the park completed assessments of the trail earlier in the season," the statement said. It expressed her sorrow and quoted her as saying, "In the long history of the trail, there is no record of anything similar to this accident and we had no idea that this rock wall would fail in such a manner."

The statement couldn't be more different from Hollows' finding that it was common knowledge among park officials that the walls along the trail had been in dangerous disrepair for years.

Within two weeks of the accident, the magistrate judge wrote, Koontz violated Park Service policy "by ordering the remaining portion of the retaining wall knocked down" before the agency's investigator, Alan Foster, could inspect it.

"Foster testified that this act compromised his investigation, and the scene was not documented to the level he thought it needed to be," Hollows wrote.

Foster testified that he sought to interview Koontz about park employees' statements describing their attempts to warn Koontz of the danger posed by the rock retaining walls, but she declined.

"The deposition transcripts would seem to show that Koontz lied under penalty of perjury about Foster's attempts to interview her, denying that she asked not to be interviewed, and testifying that it was the investigator's choice not to talk to her," the judge wrote.

The judge also cited a draft report written after the accident by a Park Service landscape architect that said "one could put a boot on top of the wall and kick it down." Koontz ordered the comment stricken from the report, the judge related, and added, "The draft report was destroyed and has not been produced in this litigation."

Daniel Jones, former maintenance chief at the park, admitted during his deposition that he wrote a memorandum in 1994 – 15 years before the accident – "addressing the deteriorating walls, their hazardous condition, and visitor safety," the judge noted. That memo, Jones testified, was shredded, as were all his other files, in late 2009 or early 2010.

One park employee testified that she saw Chief Ranger John Roth shredding documents that she had collected to send to the Botell attorneys in response to a discovery request.

"Roth brought the documents to meet with Koontz and review them after Jessica Compton delivered the documents to him, and just before he returned to the office, where Jessica observed him shredding some of them," Hollows wrote.

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

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