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Judge issues major ruling against Lassen Park in wrongful death suit

Published On: Jul 30 2013 10:28:04 PM CDT   Updated On: Jul 31 2013 11:02:16 AM CDT
Tommy Botell Photo

The family of Tommy Botell, the 9-year-old boy killed when the rock wall he was sitting on collapsed back in 2009, has won a major victory in a federal wrongful death lawsuit against Lassen Volcanic National Park.

In a ruling issued Tuesday, U.S. District Judge Troy Nunley granted summary judgment for the family, and denied summary judgment for the federal government, meaning the judge believes federal law does not protect the park from such a lawsuit.

At issue was the so-called "discretionary function exemption" of the Federal Tort Claims Act, which basically says district courts don't have jurisdiction over any claim based on a decision made in the discretion of a federal agency or government employee.

In Tuesday's ruling, Nunley said the evidence in the case demonstrated that the park had a safety program which mandated the closure of known dangers such as the retaining wall, that numerous employees knew of the dangerous condition of the wall, but that the park did not close, partially close, or use modified patterns until it was fixed.

Ultimately, Nunley said, because the safety program that was in place was a policy, and the policy was not followed, it was not a discretionary decision.

The ruling paves the way for the determination of monetary damages against the federal government.

Botell's family is seeking millions of dollars for Tommy's death, as well as injuries to his sister.