Senators urge settling claim in boy’s death

Panel stuck over liability in 2011 goal post accident

Tuesday, December 18, 2012

Two state senators Monday urged state Department of Human Services officials and the parents of a dead Bentonville fourth-grader to settle a $3 million wrongful death claim.

That came after a legislative panel deadlocked. Some wanted to pay the money, while others wanted to send the case back to the Arkansas Claims Commission for reconsideration.

Nine-year-old Jonathan Nelson died at a hospital, after a goal post tipped over and hit him in the head at Elm Tree Elementary School on Jan. 26, 2011.

The school has sovereign immunity, and its insurance policies don’t cover the type of accident that killed the elementary school student, an attorney for the dead boy’s estate told lawmakers.

The accident occurred during a recess, according to a police report.

The attorney for the estate argued the department is liable because it failed to ensure that the soccer goal was properly anchored.

It was the department’s duty to make sure the playground was safe because it authorized a child-care center to use the school facilities, including its playground, before and after school, the attorney argued.

In January, the Claims Commission unanimously dismissed the claim because Jonathan Nelson was not enrolled in a state-approved child care program, not on property used by the state-approved program, not under the supervision of the program’s employees, and not using equipment under the control or ownership of the program, said Norman Hodges, director for the commission.

“He was in a public school, was playing on school property, was under the supervision of a school district employee and utilizing school property - not property owned, operated or controlled by [the department],” Hodges told lawmakers.

“This was a school district situation - not a state matter,” Hodges said.

The Legislative Council Claims Review Subcommittee ultimately decided that a legislative subcommittee could consider the estate’s appeal of the commission’s dismissal of the claim during the 2013 session.

But Subcommittee Co-Chairman Sen. Robert Thompson, D-Paragould, said it’s clearly that the majority of the subcommittee’s members believe that the department “had a duty and it violated the duty.”

“Given that, I would strongly suggest that before January both sides meet and see if there is any common ground that you can find in settling this claim,” he said.

Term-limited Sen. Jimmy Jeffress, D-Crossett, also urged settlement negotiations.

The state Claims Commission dismissed the claim in January 2012.

Attorney Sean Keith of Rogers, representing the estate of Jonathan Nelson, appealed the commission’s dismissal of the claim to the legislative council subcommittee, which held a hearing for more than two hours on the appeal on Monday.

Elm Tree Elementary School “has no insurance policies to cover the damages alleged in this complaint, and there are no other remedies which Jonathan’s Estate and family may pursue for compensation of damages incurred” besides the state Claims Commission, Keith wrote to the commission in November 2011.

With tears running down his face, Nathan Nelson recalled learning in a phone call from his wife, Sarah, that their son was dead, while he waited for a flight back home after his son was injured.

“You all are my last opportunity,” he told lawmakers.

“There is nothing else that we can do as a family. There is nowhere else I can go for justice and accountability for my boy’s death, and we need to make sure that the message is sent so this does not happen to another child,” Nathan Nelson said.

Keith told lawmakers that the elementary school is the location for a child care program called the Adventure Club that’s certified by the state Department of Human Services and regulated by the department’s minimum licensing requirements.

The department didn’t properly inspect the playground where the soccer goal was located, he said. The goal was probably located on the playground for at least a year or two years before the injury occurred, and the department’s inspections didn’t result in any citation, he said.

“This goal was either unnoticed or ignored,” Keith said. “Had the Department of Human Services done their job, they would have protected Jonathan and allother children who use that playground.”

Under the department’s minimum licensing requirements, equipment that is designed to be anchored “shall be anchored,” and the soccer goal that killed Jonathan Nelson was not anchored in any manner, he said.

Keith said the department argues that Jonathan Nelson was not killed on one of its authorized playgrounds, but that’s contradicted by witness testimony.

Terri Dombroski, a third grade teacher at Elm Tree Elementary School, said she has seen Adventure Club students playing on the playground, where the soccer goal was located, over the past two years.

But Melissa Myers, a child care licensing specialist for the department in Benton County, said she inspected playground equipment and grassy areas for the program, and program officials never told her that the soccer goal was used by Adventure Club students. “I never saw the goal,” she said.

Cindy Estes, an attorney for the state Department of Human Services, said the soccer goal wasn’t required to be anchored down when Jonathan Nelson died, but a law enacted in 2011 now requires such goals to be anchored. The law is called “Jonathan’s Law,” after Jonathan Nelson.

Northwest Arkansas, Pages 7 on 12/18/2012