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Judge: Park Service "Destroyed Evidence" in Lawsuit Over Death of 9-Year-Old Boy

By Kelli Saam
Published On: Mar 21 2013 11:20:40 AM CDT
Updated On: Mar 21 2013 01:48:25 PM CDT
Tommy Botell Photo
RED BLUFF, Calif. -

A new court document alleges officials with the National Park Service destroyed evidence in a federal lawsuit over the death of a Red Bluff boy at Lassen Volcanic National Park.

U.S. Magistrate Judge Greg Holmes filed a document of findings and recommendations.  In the filing Wednesday,  Judge Holmes said the National Park Service staff destroyed evidence.  Holmes recommends the park service be found negligent in the 2009 death of Tommy Botell.

Botell, 9 of Red Bluff, was killed when a retaining wall collapsed on Lassen Peak Trail in 2009.    Botell was hiking the trail with his parents and two sisters when they stopped to rest.  Botell and his older sister sat on a retaining wall which collapsed.  A large chunk of concrete broke away and rolled over Tommy.  He died at the scene, his older sister was seriously injured.

According to the court document, Judge Holmes concluded the National Park Service purposely destroyed the remaining part of the retaining wall.
 
The judge said after the accident, the wall was torn down "for no apparent purpose other than to render the scene degraded in terms of any complete investigation." 

The ruling is part of a $9 million dollar lawsuit Botell's family filed against the park service.

Holmes went on to say the park didn't close the trail for investigative purposes, and no investigation of the accident site was made until it was appreciably changed.     

He added Lassen Park Superintendent Darlene Koontz completely lacked evidence of communication or documentation concerning her decision to destroy the wall.   The judge also said no preservation instructions were given to park employees so many e-mails related to the case were destroyed.

All of this he called "willful" and "material," adding there is not enough evidence to conclude whether the park service might have destroyed other evidence related to its defense, though he called it "highly suspicious."      

"Based on the evidence presented, the court can only conclude that defendant’s conduct in spoliating evidence pertaining to the retaining walls was willful and material. As a sanction for this conduct, the court recommends that defendant be found negligent for all purposes in this case, in causing the death of Tommy Botell."

The government is claiming immunity under a 1948 law that bars lawsuits against federal workers acting within their lawful discretion.  

Federal officials can object to the findings within 14 days.

Trial is set for September in federal court in Sacramento.