Judge: Federal government negligent in boy's death

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SACRAMENTO, Calif. (AP) — The U.S. government was negligent in the death of a boy killed when a retaining wall crushed him at a national park in Northern California, a federal judge has ruled.

The decision by U.S. District Judge Troy L. Nunley of Sacramento upheld the earlier findings of a magistrate, who had determined that officials at Lassen Volcanic National Park intentionally demolished the remaining portions of the retaining wall before investigators could examine it.

As punishment, the magistrate recommended that Nunley formally find the park service negligent, which he did in an order issued on Monday.

The ruling came in a lawsuit filed by the family of 9-year-old Tommy Botell. He and his sister were hiking a trail ascending 2,000-foot Lassen Peak on July 29, 2009, and sat down to take photographs atop a rock and mortar retaining wall.

The family says the wall crumbled, and a boulder weighing at least 400 pounds crushed the boy and others injured his sister, who is identified in the suit only by initials.

"It is established for all purposes in this case, that defendant is deemed to have been negligent in causing the death of Tommy Botell and injury to plaintiff K.B.," Nunley wrote.

Tommy's siblings and his parents, Thomas and Jennifer Botell, witnessed the tragedy.

Nunley's order gave a boost to the lawsuit. Attorney Steven Campora, who represents the family, said the case will now move forward with the legal finding that negligence caused Tommy's death as well as injuries to his sister.

"Who wants to believe that the U.S. government would conduct itself this way, that employees would destroy and hide evidence?" Campora said. "These are supposed to be the good guys."

Lauren Horwood, a spokeswoman for the U.S. Attorney's Office, which is representing the government, declined to comment on pending litigation.

The government has urged dismissal of the lawsuit, contending that Congress has protected it from wrongful death lawsuits such as the one filed by the Botells.

Campora is seeking a summary judgment in the case next month. If he's successful, there would be no need for an evidentiary hearing to determine whether documents that the magistrate said also were destroyed by park service workers could have been helpful to the Botells' case.

Botell's parents filed the lawsuit in federal court in 2011 alleging wrongful death, negligence and negligent infliction of emotional distress after the National Park Service denied their original claim.

In March, Magistrate Judge Gregory G. Hollows was unstinting in his rebuke of the park service's handling of the case. He rejected the government's argument that workers knocked down what remained of the wall shortly after the accident because they felt it posed a danger to other hikers.

The magistrate said there was no need to destroy the wall because "there is no doubt that the scene of the accident, i.e., the remaining part of the wall, was important for investigative purposes."

He said officials could have closed the trail or erected a barrier around the accident site to preserve the evidence.

Instead, Hollows wrote, "It has become all too apparent that the defendant has purposely destroyed material evidence in this case."

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