Panel awards $1 million in death of 9-year-old

Lawmakers: DHS liable in soccer-field accident

The Joint Budget Committee’s Claims Subcommittee reversed a Claims Commission ruling Monday evening and found the Department of Human Services liable in the death of a 9-year-old boy who was crushed to death by a soccer goalpost.

The subcommittee awarded the parents of Jonathan Nelson $1 million in their son’s death. The decision now moves to the Joint Budget Committee for review.

Sen. Robert Thompson, D-Paragould, who is co-chairman of the subcommittee, said the group had reviewed enough information in the hearing and a previous hearing in December to reverse the decision.

“The committee, after hearing this for three hours originally ... and then two-and-a-half hours, now have heard a sufficient amount of evidence and testimony in this case,” Thompson said before recognizing a motion to reverse the commission’s decision.

Jonathan was killed on Jan. 26, 2011, after a soccer goal post tipped over and fell on him during recess at Elm Tree Elementary School in Bentonville.

Sean Keith, a Rogers attorney representing the family, said several children were playing on or around the goalpost at the time of the accident

The others escaped injury but Jonathan suffered a broken neck and a crushed skull.

Keith said the family could not pursue a lawsuit against the school because it had sovereign immunity under the Arkansas Constitution; instead, they sought help from the claims commission, whichhas the authority to award damages to those who have been harmed by the state.

Even though Elm Tree Elementary is a local school - not a state-run institution - Keith said that the Department of Human Services was responsible for making sure the area was safe because it also licensed an after-school program called Adventure Club at the school.

Commission Director Norman Hodges told the committee that the commission dismissed and denied the claim in January 2012.

The commissioners found Jonathan was not enrolled in the state-approved childcare program, was not on that program’s property, was not under supervision of that program at the time of the accident and was not using its equipment.

In a letter dated Feb. 17,Keith requested the subcommittee review the claim, calling Jonathan’s death “foreseeable and preventable.”

The homemade goal that killed Jonathan was top-heavy and “situated on soft, unlevel ground,” Keith wrote in the letter, and should have been discovered and addressed by the agency as part of the licensing requirements for the after-school program.

Keith cited the “minimum licensing requirements for child care centers” maintained by the Department, which state “equipment, which is designed to be anchored, shall beproperly anchored.”

Adventure Club at Elm Tree Elementary, a “better beginnings” program certified by the Department, operated at the school, but agency attorney E.J. Reyes countered that the area was outside the program’s designated bounds.

Reyes said the agency had records of specific areas where inspections were conducted based on the areas a site administrator recognizedas those used by the group. Those areas were limited to two playground areas away from the goalpost.

Rep. Fred Love, D-Little Rock, asked how the bounds could be so absolute when the area in question was considered part of the school’s playground area.

“If you consider something a playground, then you would just naturally assume that kids would play there,” Love said.

Northwest Arkansas, Pages 7 on 02/26/2013

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