- As sanction for destroying evidence, federal judge finds US negligent in wrongful death case
Trials & Litigation
As sanction for destroying evidence, federal judge finds US negligent in wrongful death case
Posted May 15, 2013 3:08 PM CDT
By Martha Neil
As a sanction for destruction of evidence by the National Park Service in a wrongful death case, a federal judge in Sacramento, Calif., ruled Tuesday that the United States was negligent.
The case concerns the July 2009 death of Tommy Botell, 9, after a retaining wall that he and his sister had been sitting on collapsed. Damages are also being sought for his sister, who was injured in the accident at Lassen Volcanic National Park, the Sacramento Bee reports.
Adopting the findings and recommendation of a magistrate, U.S. District Judge Troy L. Nunley held that the government was negligent "for all purposes in this case."
The magistrate found that the government "purposely destroyed" the remains of the retaining wall, and that the park director and some staff knew the wall was unsafe, the newspaper says.
"What is less clear, although highly suspicious, is whether defendant [destroyed] evidence other than the wall," U.S. Magistrate Gregory G. Hollows wrote in a previous decision.
Still undecided in the case and expected to be addressed at a June hearing is whether the government can assert a "discretionary function" defense under the Federal Tort Claims Act, according to the Bee. The government argues that those in charge of the park had discretion to decide whether or not to repair the wall, and hence the government cannot be held liable for their decision-making.
The U.S. attorney's Office in Sacramento declined comment about the ruling when contacted by the newspaper.