Lassen sued over child's death in fall COURTS

Tommy Botell, Jr, 9 pictured just before the incident in which he fell to his death. Photo provided by DREYER, BABICH, BUCCOLA, WOOD, CAMPORA LLP. Tommy Botell, Jr, 9 pictured just before the incident in which he fell to his death. Photo provided by DREYER, BABICH, BUCCOLA, WOOD, CAMPORA LLP. Photo: -, Botell Family Lawyers Photo: -, Botell Family Lawyers Image 1 of / 3 Caption Close Lassen sued over child's death in fall 1 / 3 Back to Gallery

Tommy Botell was sitting aside a mountain trail in Lassen Volcanic National Park with his older sister, getting ready to pose for a family snapshot.

Suddenly, the 2-foot retaining wall supporting the trail gave way. The 9-year-old boy's brain stem was crushed as he and his sister hurtled down a steep, rocky mountainside. Within minutes, he was dead and she was covered in blood, suffering from head and jaw injuries.

The family's horror has since turned to rage against the National Park Service.

Agency officials first called the wall's collapse "unforeseen." Park Service documents, however, showed that officials had repeatedly been told that the wall was in bad shape and that the public was at risk, but they kept the trail open anyway.

What happened to Tommy could have happened to anyone, said his father, Thomas Botell, who has filed a wrongful-death lawsuit against the government in federal court in Sacramento.

'It's totally wrong'

"It seems to me there should be more responsibility," said Botell, 51, of Red Bluff. "It's totally wrong, what they've done. If you are hiking in the national forest, you have to think out of the box when it comes to safety because they aren't going to look out for you."

The Botell family was on its third visit to Mount Lassen when they set out July 29, 2009, on the Lassen Peak Trail, which climbs to the summit of the 10,457-foot volcanic dome.

Eleven-year-old Brittany Botell, the middle child of Thomas and Jennifer Botell, "was just about to sit down when the retaining wall just moved and started rolling forward," her father said.

Tommy and his 13-year-old sister, Katrina, tumbled as much as 30 feet down the slope.

"Mama, I hurt," Tommy said as Jennifer Botell pulled him toward her. "Mama, I can't see." He died in her arms.

Several months after the collapse, the park's superintendent, Darlene Koontz, said in a statement: "In the long history of the trail, there is no record of anything similar to this accident, and we had no idea that this rock wall would fail in such a manner."

The Park Service ordered an investigation. Koontz, who has been superintendent since 2007, refused to be questioned for the agency's probe, the investigator later testified.

Koontz told lawyers no one had contacted her. She declined to comment for this story, citing the litigation. Government attorneys representing the Park Service did not respond to requests for comment.

The Park Service probe found that the rocky retaining wall dated from the 1970s and that part of it had "slumped and/or migrated downhill." Hikers taking shortcuts uphill to avoid switchbacks had also damaged the wall, the report said.

$9 million suit

Based on the investigation's findings, the family filed suit, seeking $9 million. The government claimed immunity under a 1948 law that bars lawsuits against federal workers acting within their lawful discretion, but a judge refused to dismiss the case.

Meanwhile, the family sought documents about what Lassen officials had known about the wall's condition. Attorneys uncovered a 1994 Park Service memo warning that the wall had been undermined by water runoff. They also found a 2002 expert evaluation done of the park's trails that concluded parts of the Lassen Peak Trail were in "poor to fair condition" and needed to be shored up to preserve "visitor safety."

In 2007, two trail experts with the State Parks Department determined that the wall was unstable because it sat atop loose, rocky soil that was giving way.

Video revelations

Just a month before Tommy Botell's death, park workers shot three hours of video showing weak parts of the wall with an eye toward raising money to repair it. At some places, light showed through where earth should have been supporting the wall.

After the accident, a Park Service landscape architect described the wall as "long and skinny ... like a sausage, and one could put a boot on top of the wall and kick it down." The expert said she had inspected 50 trails in a decade, and that Lassen Peak Trail was "quite the worst trail I'd ever seen in terms of poor condition and safety hazard."

Koontz sought to strip what she called "strong language" about the state of the wall from the landscape architect's initial report. Koontz later acknowledged, when she testified in February, that the architect's report was supposed to assess only the trail's historic significance.

Shredded documents

Another dispute surrounds documents that workers said they had collected about the wall for park management. One worker recounted that the park's chief ranger began shredding copies of documents she gave him in March. The documents, she said, included supervisors' notes about the accident and reports of decision-making about spending on the trail.

The government has argued that the documents were not relevant.

Steve Campora, an attorney for the family, said he will call on the federal judge hearing the case to sanction the Park Service for destroying evidence.

Thomas Botell said his family is still seeking answers.

"If they were concerned with safety, they didn't do anything about it," he said. "If they were concerned, they would have roped that wall off. It was obvious it was unsafe."