Tommy Botell was killed in 2009 when a rock wall fell on him and his sister.
As Lassen Volcanic National Park crews continue to work on a $2.4 million project to make the Lassen Peak trail safer for hikers to use, a drama is unfolding in U.S. District Court in Sacramento over a federal lawsuit that may determine whether the 2009 death of a 9-year-old Red Bluff boy was caused by National Park Service negligence.
Tommy Botell, a Reeds Creek School student who loved everything from milk shakes 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 it during a family hike to the top of the volcano.
Tommy died at the scene after the wall, estimated to weigh between 400 to 600 pounds, rolled over him.
His sister also was also seriously injured in the accident.
His family filed a wrongful-death lawsuit last year 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 United States of America not only allowed children on the trails, it specifically encouraged use of the trails by families with children,” the lawsuit states. “This conduct was not only negligent, it was a willful failure to guard or warn against the dangerous condition.”
A Sept. 10, 2013, trial date has been scheduled.
The lawsuit filed on behalf of the Botell family seeks unspecified general and other damages, as well as costs and expenses.
A court document filed in 2011 on behalf of the government in response to the lawsuit states that the Botell family had submitted administrative claims totaling about $23.7 million. Those claims were denied.
Government attorneys also have denied the lawsuit’s allegations.
Counsel representing the Botell family, as well as attorneys with the U.S. Attorney’s Office, are scheduled to be in U.S. District Court on July 30 to argue competing motions that could determine if next year’s scheduled trial will go ahead as planned.
But those legal motions also could immediately determine the outcome of the lawsuit.
For instance, the U.S. Attorney’s Office is asking the case be dismissed on grounds that the U.S. has not waived its sovereign immunity under the Federal Tort Claims Act.
That act allows people to sue the federal government, but there are a number of limitations and exceptions.
The government has invoked an exclusion in connection with discretionary and public policy decisions made by park employees over the maintenance of the trail’s rock walls.
“Plaintiffs have come forward with no statute, regulation or policy which mandates a particular course of action be taken,” regarding the maintenance of the rock walls, a June 25 motion filed by the U.S. Attorney’s Office states.
Still, Sacramento attorney Steven Campora, who represents the Botell family, argues in his complaint that park officials were well aware that support for the rock walls had eroded, but did not take proper steps to ensure they were safe.
Their failure to do so, he asserts, violated inspection and maintenance procedures mandated by National Park Service management polices.
The park service maintains the ongoing trail improvements were planned well in advance of Tommy’s death.
