Federal Judge Finds Government Negligent in Causing the Death of a Red Bluff Boy

RED BLUFF, Calif. - A United States District Court Judge issued a ruling Tuesday, finding the federal government negligent in the death of a nine-year-old Tehama County boy.

In a written statement, U.S. District Judge Troy Nunley wrote, "it is established for all purposes in this case, that defendant is deemed to have been negligent in causing the death of Tommy Botell."

Tommy Botell was killed in July 2009 when a rock retaining wall gave way at Lassen Volcanic National Park.  The wall collapsed on top of the boy on the Lassen Peak Trail, killing him.

His parents Tom and Jennifer Botell filed a federal lawsuit against the National Park Service asking for damages.

Tuesday's ruling upholds a magistrate's earlier ruling in March.  In court documents, a U.S. Magistrate concluded the National Park Service purposely destroyed part of the retaining wall that caused Botell's death.  The magistrate recommended the Park Service be found negligent.

In the most recent ruling, Judge Nunley adopted the recommendation of negligence. 

Judge Nunley went on, writing in a footnote, "the government has provided no reason why most of its evidence and arguments were not presented earlier to the magistrate judge.  In this case, the government indeed has treated its performance before the magistrate judge as a mere dress rehearsal.  In addition to omitting reference to crucial record evidence previous presented by plaintiffs, the evidence presented by the government in its objections, upon which the government now attempts to rely, was in existence at the time the spoliation motion was heard."

The federal trial is scheduled to start in September. The plaintiffs have filed a motion for summary judgment, asking the judge to find in favor of the plaintiffs.  If that motion is denied, there would be a hearing on the issue of spoliation of evidence prior to the start of the trial.

One of the attorneys for the Botells, Catia Saraiva, told KRCR News Channel 7 that it is the first time they know of that a federal magistrate is recommending sanctions against the United States for destroying evidence.

Attorneys for the Park Service, responded, calling some of the magistrate's findings "patently untrue" and "based purely on speculation."

Attorneys for the government are saying that officials did not destroy documents related to the lawsuit, did not obstruct the investigation into Tommy's death, that parts of the wall were preserved and that Park Superintendent Darlene Koontz did not lie under penalty of perjury.

The plaintiffs are seeking damages for wrongful death. The damages are for the loss of the relationship, the damages for having witnessed the death of a son and brother, the damages for physical injury and then the actual medical expenses. The judge will have to decide the amount based on the evidence.

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