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ARKANSAS STATE
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ARKANSAS STATE
CLAIMS COMMISSIO
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NOV 14 2rip
RECEIVED
ARKATSAS STATE CLAIMS COMMISSION
NATHAN NELSON,
AS PERSONAL RI PRESF NTA riv OF
‘[lIE ESTATE OF .IONATIIAN NELSON
VS.
CLAIMANT
CASE NO.
ARKANSAS DEPA RTMENT OF I IUMAN SERVICES,
DIVISION OF CIIILDCARE AND
EARLY CIIILI)IIOOD EDUCATION
RESPONDENT
COMPLAINT
Comes now, Nathan Nelson, Individually and in his official capacity as Personal
Representative of the Estate of Jonathan Nelson, by and through his attorneys, at Keith,
Miller, Butler. Schneider. and Pawlik. PLLC and for his complaint of wrongful death
against the Respondent, the Arkansas Department of Human Services (hereinafter
ADHS”). does state and allege as follows:
1.
1.
JURISDICTION
This is an action for personal injury, wrongful death, compensatory, and
statutory damages due to the Estate of Jonathan Nelson because of Respondent’s
negligence in failing to properly inspect, monitor, and regulate facilities at a certified
Better Beginnings program as required by “Minimum Licensing Requirements for Child
Care Centers” created and promulgated by ADHS,
2.
This
damages, but also
action is
to
hrouht beibre this Commission riot only for compensatory
ensure ADHS is held to enacted standards for inspection and
regulation of areas and facilities that care fir and supervise children, A playground
at an
Arkansas child care facility should he a place for children of this state to play, grow and
he healthy and active, Parents should not fear that sending their children to school or
a
child care facility could result in that child being hospitalized or killed by playground
equipment.
The Arkansas Claims Commission has been described as the “conscience
of the state of Arkansas.” The negligence that led to Jonathan Nelson’s death should
bother the conscience of this state and should be rectified with regard to Jonathan’s
parents and brother, and should be prevented from happening to other Arkansas children
and families in the future.
4.
Venue in this action properly lies with this Commission because 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.
Additionally, this Commission has
exclusive jurisdiction of claims against the State of Arkansas and its agencies, boards,
commissions or institutions in accordance with A.C.A. 19-10-201, et seq.
5.
Claimant, Nathan Nelson, is a resident of l3enton County, Arkansas, and
resides at 503 SW Tonbridge Drive, Bentonville, AR 72712 with his wife, Sarah Nelson.
Nathan Nelson has been duly appointed as personal representative of the estate of
Jonathan Nelson, the deceased, who died in the manner alleged below on January 26,
2011, leaving as survivors his father, Nathan Nelson, his mother Sarah Nelson, and his
2
brother, Tyler Nelson, for whose benefit plaintifTh are bringing this action, The
deceased,
prior to his death, resided in BentonviHe, i3cnton County, Arkansas.
6.
Claimant is represented by attorneys Sean 1. Keith am! Anna R. Betts of
Keith, Miller, Butler, Schneider and Pawlik, PLLC, whose address is 224 South 2nd
Street, Rogers, AR 72756.
7.
The Respondent. AD1 IS. is organized under the laws of the State of
Arkansas, Act 38 of 1971, and is duly qualified and authorized to ensure that Arkansas
citizens are healthy, safe, and enjoy a high quality of life.
8.
Additionally, Act 1132 of 1997 established the Division of Child Care and
Early Childhood Education within ADHS. The purpose of the Division is to enhance the
coordination of child care and early childhood education programs within the state.
Through the licensing and accreditation unit, the Division also works to ensure that child
care centers and family child care homes meet state minimum licensing standards and
provide safe and healthy child care.
IL
9.
FACTUAL BACKGROUND
Jonathan Nelson was killed on January 26, 2011, from injuries he
sustained at or around 2:30 p.m. on that day at the Elm Tree Elementary School
playground in Bentonville, AR.
10.
January 26, 2011, began just like any other day for Jonathan Nelson. He
awakened at his usual time and ate a quick breakfast before jumping in the car with his
mother and older brother Tyler and heading off to school.
-5
Ii
Jonathan was nine years old at the time of his death and was in the fourth
grade at Elm Tree Elementary School in ilentonville. lie was well-liked by his classm
ates
and teachers. ftc was open, friendly, and funny and as result, he had numerous friends
,
12.
On the day of his tragic death, Jonathan was playing with several other
children on the playground during the last recess period of the day. The childre
n had
been cooped up all day and they were Cull of energy and ready to play. Jonath
an and a
group of friends were running, climbing, and playing. According to the police report
and
witness testimony, Jonathan and one of his friends were squatting or standing in the grass
just behind a homemade soccer goal on the playground.
playing on or around the goal.
Several other students were
It is believed that one of the students was leaning or
squatting against one of the goal posts, another was leaning on anther goal post with
his
arms extended over his head, while a third student was near or leaning against the
other
front goal posts. At some point during their play, the soccer goal began to tip backw
ards.
13.
When the goal began to tip backwards, the students who had been
climbing and leaning on the goal posts immediately jumped clear and yelled a warning to
Jonathan and his friend to do the same. Jonathan’s friend, who had been squatting in the
grass behind the goal with him, was able to get clear. However, Jonathan’s efforts to
escape were imsuccessful. He either tried to squat to get out of the way of the goal post
or he was trying to run out of the way and tripped and fell in the grass. What is known is
that the soccer goal hit Jonathan as he lay helpless in the grass. trying to get away.
14.
He was found by a teacher, lying in the grass, moaning, with his eyes
fixed and unresponsive. A large group of his classmates had already lifted the soccer
4
goal off of him and were holding it off of his body by the time the teacher arrived. The
teacher moved Jonathan and used her cell phone to call the school nurse to the scene.
15.
Attached as Exhibit A to this Complaint is the police report of the
incident, redacted to protect the information of minors, hut containing the names and
addresses of all adult witnesses.
16.
The school nurse. Cheryl McCoy arrived within a few minutes and began
CPR. She could feel a pulse, but Jonathan was completely unresponsive. The school
office called 9 I -l approximately four (4) minutes after Nurse McCoy received the call
that a student had been injured.
17.
Within fifteen (15) minutes, Jonathan was in an ambulance on his way to
the hospital fbr treatment of his injuries.
I 8.
However, Jonathan Nelson’s injuries were too severe and devastating. He
had suffered a broken neck and crushed skull. Jonathan was pronounced dead within
minutes of arnval at the hospital.
Hi.
19.
LIABILITY AND DUTY OWED BY RESPONDENT
Jonathan’s severe injuries were foreseeable and preventable. The safety
violations on the playground that day with regard to the soccer goal were numerous.
20.
Elm Tree Elementary is not only a school, it is also home to a child care
facility called the “Adventure Club at Elm Tree Elementary.”
21,
The ADHS Division of Childcare and Early Childhood Education has
certified that the “Adventure Club at Elm Tree Elementary” meets the requirements of
the Arkansas Better Beginnings program. The Adventure Club meets the definition of a
“Child Care Center,” according to the licensing requirements promulgated by ADHS.
Uhe Adventure Club child care fticility is available for children from
preschool age
to
thirteen (1 3) years old.
22.
As a certilied Better Beginnings Program, the Adventure Club at Elm Tree
Elementary is subject to the “Minimum Licensing Requirements for Child (‘are Centers,”
which are the licensing regulations produced and enforced by ADtIS.
23,
ADIIS
is
responsible for inspecting the Adventure Club and its grounds to
ensure that there are no violations of the minimum licensing regulations.
24.
The Adventure Club at Elm Tree Elementary” uses Elm Tree Elementary
School’s facilities and playground equipment for its program participants. Their use of
the facilities places the facilities and playground under the supervision and regulation of
A DFIS.
25.
Child Care Centers shall maintain compliance with the Minimum
Licensing Requirements for Child Care Centers set forth in PUB 002 at all times. To be
in substantial compliance, the Child Care Center shall meet all essential standards
necessary to protect the health, safety and welfare of the children attending the Child
Care Center.
26.
Each Child Care Center shall be reviewed by the Child Care Licensing
unit, which is an arm or division of ADHS. to determine whether the facility is in
compliance with all the Minimum Licensing Requirements for Child Care Centers.
27.
ADHS has a duty to enforce these regulations and ensure that child care
facilities follow the regulations created and promulgated by ADHS.
28.
Ark. Admin. Code 016.22.2-900 states that it is recommended that child
care centers abide by the guidelines in the CPSC’s “Handbook for Public Playground
6
Safttv” (hereinafter, “I Iandhook”.
I his I landhook states that
key to making playground equipment stable.
secure anchoring is the
The Handbook’s safety checklist also
recommends ensuring that all equipment is securely anchored. This soccer goal clearly
violated the I landhooks guidelines lbr safety and in addition to violating ADHS
requirements that all playground “equipment, which is designed to he anchored, shall be
properly anchored.”
29.
The CPSC guidelines for playgrounds require that soccer goals he
anchored securely to prevent
SCrIOUS
injury or death of children on public playgrounds.
Public Playgrounds are deñned as “equipment for use by children ages 6 months through
12 years in the playground areas of:... Schools
30,
The goal that ftll on and killed Jonathan Nelson was made of 2” x 2”
square metal tubing. Its construction consisted of right angles. The base is the same
width as the top, rather than being longer and wider to better stabilize the goal. lie goal
is top-heavy and was situated on soft, uneven ground. When upright, the back of the goal
was lower than the front due to its positioning on the soft ground. This was a homemade
goal with no known origin and was not anchored to the ground in any fashion.
31.
Section 900 of Minimum Licensing Requirements for Child Care Centers
set forth in PUB 002, states that child care facilities are encouraged to meet CPSC
guidelines listed in the “Handbook for Public Playground Safety.” However, there are
certain requirements that ADHS has made mandatory. One these required regulations
states: “Equipment, which is designed to be anchored, shall he properly anchored so that
the anchoring devices are below ground level.”
7
2.
Fhe minimum
licensing requirements slate that the grounds area of
playgrounds “shall he free of hazards or potentially hazardous objects
’ and that
“equipment, which is designed to be anchored, shall be property anchored.”
(See Section
‘)02 “General Hazards”).
3.
[he regulations also state that “jaill equipment should be sturdy, clean and
;afi.” (See Section 1050 “Furniture and Equipment”).
The soccer goal that caused
Jonathan’s death was an obvious hazard in that it was neither sturdy nor safe.
34,
As described above, the soccer goal was situated on unlevel ground and
was not anchored in the soil making it prone to tip over. This was a violation
of both
ADI-IS requirements and the CPSC requirements for playgrounds.
35.
ADHS is required to inspect child care centers for violations of these
minimum licensing regulations.
36.
The Adventure Club at Elm Tree Elementary was inspected by ADHS on
November 30, 2010, December 22. 2010, February 8, 2011, and February 18,
2011.
None of these inspections resulted in any citations or noted violations. This indicates that
either the deadly soccer goal was either unnoticed or ignored.
37.
Had ADHS performed its inspection of the Adventure Club Elm Tree
Elementary properly, carefully, and to the standard of care with which they are charge
d,
this soccer goal would either not have been on the field or it would have been on firm
ground and securely, and properly anchored so as not to present a hazard to Adventure
Club participants and any other children or adults on the playground.
38.
Furthermore, in recognition of the tip over hazard that has been shown to
be associated with soccer goals, the CPSC has also recommended guidelines specific to
8
soccer goals to prevent deaths and serious injuries resulting Irom soccer goal tip over.”
lhesc guidelines state that it is “imperative” that all soccer goals are anchored to the
ground. They also state that goals should only he used on level, flat ground. Finally, the
guidelines note that almost all of the goals involved in tip over accidents resulting in
injury are homemade goals, which are often very heavy and unstable.
These CPSC
guidelines arc readily available over the internet and are easy to find. These guidelines
were available at and before the time of Jonathan’s death.
39.
It is clear that ADHS disregarded the aforementioned guidelines in almost
every way possible. The soccer goal that killed Jonathan was not anchored to the ground,
was not positioned on level ground, and was a homemade, heavy, unstable goal. The
risks associated with such a piece of equipment are obvious and the failure to ensure the
safety of this playground and goal is inexcusable.
40,
Although homemade goals are less expensive than their manufactured
counterparts, this does not excuse the fact that all types of soccer goals should he
anchored down. The fact that this soccer goal was homemade actually highlights the
need for it to have been anchored down since it was likely not constructed with the same
counterbalancing measures routinely used in commercial soccer goal production. The
cost that would have been incurred to purchase an anchor for the goal is negligible when
compared to the value of a child’s life and the countless other individuals that have been
impacted by this tragedy,
41.
There are at least seven different types of goal anchors
Ofl
the market
today that are available at a wide variety of sporting goods stores as well as over the
internet.
Of these possibilities, the most inexpensive is the nylon peg, which is ten
9
dollars (Sl000) [br a set of six. Only two to four of these pegs are needed to anchor
one
goal.
The sandbag anchor is the easiest option, and costs about thirtytwo dollars
($32.00) per sandbag. Only two sandbags are needed to anchor one goal.
42.
ADHS should have recognized and addressed the playground violations at
Elm l’ree Elementary’s Adventure Club. They should have mandated that the child care
focility install or used an anchor for this goal because it is clear the goal was not sturdy
and was unsafe, ADHS had an obligation to inspect this playground to ensure that this
playground was safe. They disregarded that responsibility and allowed unsafe equipment
to remain on Elm Tree Elementary’s playground. These actions resulted in the untimely
death of Jonathan Nelson.
43.
The injury and death of Jonathan was caused by ADHS failure to follow
its own guidelines tbr safety. Al)HS disregarded the rights and safety of others which
was a proximate cause of Jonathan’s death in the following particulars:
a.
In permitting a child care facility to operate with unsafe, hazardous
equipment:
b.
In failing to inspect the playground equipment at the Adventure
Club at Elm ‘Free Elementary;
c.
In thiling to cite the Elm Tree Elementary Adventure Club for the
unsafe playground equipment which would have required them to remove the
soccer goal, or at least properly anchor it; and
d.
In failing to enforce its own guidelines which require that
playground equipment he properly anchored.
10
44.
AIMIS’s Failure to monitor and ensure that there were no
safety violations
was a direct cause ot Jonathan Nelson’s injuries and subseq
uent death. But for ADFIS’s
negligence, Jonathan would not have died in this tragic fashion
.
IV.
45.
him.
DAMAGES
At the time of his death, Jonathan was a child with his entire life ahead
of
ills earning capabilities, although not known with certainty,
can be reasonably
ascertained by looking closely at Jonathan himself, his reputation
as being a good student
and having great interpersonal skills. Additionally, by looking at
Jonathan’s parents and
their jobs and education levels, it is more likely than not that Jonath
an would have earned
a college degree and held a white-collar job.
Nathan Nelson, Jonathan’s father is
employed by PI3M Products, a supplier of milk and formula produc
ts to Wal-Mart. Sarah
Nelson, Jonathan’s mother, is employed by OneNetwork, a compu
ter logistics network
that works with customers to increase profitability and efficiencies
by optimizing their
supply chain operations.
36.
An economic report outlining Jonathan’s potential earning capacity
has
been attached as Exhibit B to this Complaint.
47.
As a result of the negligence of the Arkansas Department of Human
Services, Jonathan Nelson incurred a complete loss of future earning
s and earnings
capacity.
48.
Jonathan had a remaining life expectancy of sixty-eight, point sevent
y-
three (68.73) years pursuant to A.C.A.
§
18-2-105, of which forty-three (43) or more of
those years would have been spent earning income.
11
43.
Jonathan Jell the kllowing beneficiaries surviving him pursuant to A.C.A.
§16-62l02:
50.
a.
Nathan Nelson. decedent’s thther:
b.
Sarah Nelson, decedent’s mother;
c.
Tyler Nelson, decedent’s brother.
Jonathan’s ftimily lost all benefit of his contributions to his family and his
beneficiaries, are entitled to recover for the following damages. all of which were
proximately caused by the negligence of the Respondent.
a.
Pecuniary injuries sustained by them because of the loss of
contributions of Jonathan’s future support, love, care, comfort, affection, society,
presence, companionship and protection all in an amount greater than the
statutory minimum required for diversity jurisdiction in federal court;
b.
Mental anguish suffered by them because of the violent, untimely
and horrific manner in which Jonathan died all in an amount greater than the
statutory minimum required for diversity jurisdiction in federal court;
c.
Medical bills in the amount of $1,270.27, after health insurance
payments.
d.
Funeral and burial expenses of$1.510.50;
e.
Conscious pain and suffering of Jonathan Nelson, prior to his death
in an amount greater than the statutory minimum required for diversity
jurisdiction in a federal court.
51.
The Estate of Jonathan Nelson respectfully requests the Arkansas State
Claims Commission to acknowledge negligence on the part of the Arkansas Department
12
ol Human Services, and rightfully compensate the Nelson family for the medica
l hills and
limeral expenses of Jonathan Nelson, as well as grant damages fur Jonathan’s
loss of life
and compensate his parents’ and brother fur their loss of Jonathan’s
services and
companionship in the amount of three million dollars ($3,000,000.00).
52.
The Estate o Jonathan Nelson asks that this he considered by the
Arkansas State Claims Commission and that a hearing be set, if necessary, to make
a
determination. Our office is available to the Commission to answer whatever questio
ns
ihe Commission may have or to provide any ftirther requested documentation.
WHEREFORE, the Claimant, as Personal Representative of the Estate Jonath
an
Nelson, prays for a judgment against the Respondent, Arkansas Department of Human
Services, for personal injuries and wrongful death, compensatory damages, costs
and for
any and all other proper relief to which the Estate may be entitled.
NATHAN NELSON,
As Personal Representative of the
Estate of Jonathan Nelson
I
2 /
,)/1
:j
13Y:
Sean T. Keith
Lic. No. 93158
Anna R. Betts
Lic. No. 09176
Keith, Miller, Butler,
Schneider & Pawilk, PLLC
224 S. 2nd Street
Rogers, AR 72756
(479) 621-0006
‘3
______
Ir..iawz
Bentonville Police Department
Detail
Print DatelThne:
Login ID:
Case Number:
02)2212011 08:20
Il
‘
t3untorivde Police Depariment
lindsay
201100001233
ORI Number:
AROO4O100
tnitial Narrative Will Gardner
On Wednesday 1/26/11 I was dispatched to Elm Tree Elementary School (101 NW Elm Tree Road, [lentonville) to assist
EMS who was on scene handling a medical call.
Upon my arrival at 1435 hours, I was advised by EMS they were working a code” and they asked me to assist them in
carrying equipment from the ambulance to the patient. I assisted EMS by carrying a backboard to where the patient was
located. I then went back to where the ambulance was parked to clear the roadway of cars waiting to pIck up children
due to school letting out.
Once EMS had departed the scene, I spoke with the teacher who was outside on recess duty when the incident occurred.
I spoke with Elizabeth Seyfaith, who Is an Instructional Assistant for the 4th grade at Elm Tree
Elizabeth said that she and a substitute teacher wore outside standing in the north school bus driveway. As she was
about to interrupt a football game due to the children playing too rough, she was interrupted by another student. The
student, Christopher t3erger, told Elizabeth that
“fl, was trapped under the net and directed her attention
to the soccer goal to the north of her location. Elizabeth said she jumped over the fence and ran to the soccer goal. As
she was running, there approximately eight students were lifting the soccer goal back upright. Elizabeth said she cleared
the area of all the other students and checked on
She sair
was moaning, his eyes were fixed, and
she felt a pulse in his neck; however, he was unresponsive.
—
Elizabeth said she used her cell phone (at 1422 hoUrs) and called the school office to advise them to send the nurse; she
had a student that appeared to be hurt very badly. The Elm Tree nurse, Cheryl McCoy, other office staff, and the Spring
Hill Middle School nurse, Shelly King, arrived at the scene. Elizabeth said Cheryl McCoy felt for a pulse and did not
locate one and immediately started CPR. I later spoke with the school Principal, Mrs. Sharp, who advised me that 9-1-1
was called from the office at 1426 hours. Based on dispatch records, EMS arrived on scene at 1434. Elizabeth said
once the proper help was with
F jnd CPR was being adminIstered, she went to flag down the ambulance to direct
them to the scene.
My investigation revealed that the soccer goal was approximately 230 feet from where Elizabeth was standing prior to the
incident. The goal was made of 2x2 square metal tubing.
At the time I was speaking with Elizabeth she could only remember the names of two other students who were at the
scene. Elizabeth did not know If they witnessed the incident or were just In the area to see what was going on. The
names of the students are Santi Shaddox and Sebastian Garcia.
After completing my investigation at the school, I went to the hospital and met with detectives and Dr. Jackson, the
attending physician, Refer to Detective Mark Jordan’s supplemental for further details.
Dash Cam: NO
William Gardner #929
follow up 1-26-1 1 Det Jordan
on January 26, 2011 I responded to the Elm i’ree Elementary School after hearing the radio traffic about an accident on
the playground involving a young boy. A/hen I arrived, the ambulance was getting ready to leave. Since other officers
and detectives were also there, Lieutenant Jon Simpson requested I go to the hospital. Before leaving, I learned from
Officer Will Gardner that according to the duty teachers, it was believed that the victim had been playing near one of’ the
soccer goals when it fell on him.
a nine year old fourth grader. I also learned that he
At the hospital I teamed the boy’s name was
was injured while playing near one of the soccer goals. Apparently, it fell backwards and struck his head.
While waiting in the emergency room area, Lt. Simpson arrived along with Detectives Tom Boyle, Tony Marveggio,
—
Paoe: 6otB
Bentonville Pohce Department
Print Date!Ttme:
Login ID:
Case Number:
02122/2011 08:20
jJ
i3entonville Police Deportment
ORI Number:
lindsay
AROO4OIOO
201100001233
jiad passed away. We
Glynn Bertrand, and Officer Will Gardner. After several minutes, it was learned tha’
spoke briefly with Dr. Jackson while waiting on the coroner. While waiting on the coroner, Lt. Simpson and I met briefly
with Mrs. Sharp. the Principal at Elm Tree Elementary School. I told her that I would be in contact with her in a day or two
and requested she contact me with any information she received concerning the accident.
On January 27, 2011, I made telephonic contact with Mrs. Sharp and learned they were stilt meeting with several
students who were talking with counselors. She was still trying to find out who saw the accident,
On January 28, 2011, I received a call from Mrs. Sharp. She had talked with several students and teamed that three
were near the soccer goal when the accident happened. I requested to speak with those students. She advised she
would make the arrangements for me to talk with them at 1030 hours.
Therefore, at approximately 1030 hours, I met with Mrs. Sharp and Mrs. Hyseil (counselor) at the school. We spoke
with three students and their parents (separately) in one of the counselors work rooms. After meeting with all three
was standing behind the soccer goal when he
(Chris l3erger, Kobe Anderson, & Drew McDaniel), I learned that
was injured, He was not touching the soccer goal or net, One of the students was squatting (or leaning) on the soccer
net (or bottom cross bar> while balancing himself with his hands above his head. Another student was leaning against
one of the front poles while another student was standing near the other front pole. One of the students thought there
was another student near the net, but he wasn’t certain nor did he know what that student was doing. As the three
standing behind
students were playing, the soccer goal began to tip backwards. One of the students notic&
tried to move, the students didn’t know if he tripped as he ran backwards
the net and yelled for him to move. As
and the goal hit him while he was on the ground or if the goal hit him while he was still moving backwards knocking him to
the ground.
‘iad been injured by the soccer goal, one ran for help while the others picked up
When the students realized
the goal. A few seconds later, teachers arrived to help.
Since this accident occurred, I have spoken with several members who work for the Bentonville School District about
the soccer goal. I learned that Elm Tree Elementary School first opened in the Fail of 1994 or 1995. I spoke with the
principal and assistant principal who were at the school at that time. No one knows where this particular soccer goal
came from. It is unknown if it was donated or purchased by the school or if it was brought to the playground during the
summer for summer league soccer practice. (Note: There is also another soccer goal like this one on the playground. In
fact, it was learned that these are the only two soccer goals like this in the entire school district. It should also be noted
that I have driven by the school after school hours and in the summer and have seen soccer teams practicing on the
playground. Therefore, it is possible that these two soccer goals were put there by a private coach/team.)
On the day of the incident, LI. Simpson, Detective Marvegglo. and Detective l3ertrand examined this particular soccer
goal and noticed it was made of metal (two inch tubing) and appeared to be home-made. They also noticed the bottom
was the same length as the top. It was made of only right angles, rather than a longer, wider base which might better
stabilize It. One could also toil it was somewhat unsteady due to being topheavy. The top of the goal had a crossbar in
the front and back whereas the bottom portion of the goal was open which would allow the goalie to position himself in
front of the goal.
No markings, serial or model numbers, factory or company name, could be found on it. It was made of metal and the
orange/red paint was faded. t.t. Simpson advised me that he noticed the ground was soft and unlevol where the goai had
been before it tipped over backwards. He could tell that when upright, the back of the goal would be lower than the front
since the ground was soft.
On January 28, 2011, Detective Tom Ooylo and I looked at the goal again along with Scott Passmore, who is
employed with the Bentonville School District. The goal, and the other orange goal, had been moved to a secure area
whore the Bentonville School buses are parked (the bus barn> when not in use. We took more pictures and also looked
for any markings that might help identify the manufacturer. However, none could be found. We did notice welding
markings on the bottom portion of the goal.
‘
“
‘
We measured the goal and found the following:
Height-----approximatety 6 8”
approximately 12 4’
Width
Depth—— approximately 311’
(refer to photos for further)
(Note: Mr. Passmore advised he would find someone to weigh the goal.)
Pae: 7ofB
8entonvile Police Department
Detail
Print DatelTime:
Login ID:
Case Number:
02122/2011 08:20
hndsay
2011-00001233
1121
11)1
f.14iC]1ni1U1
rt.ntonvilIe PoUce Doparimeni
ORI Number: AHOO4O100
After speaking with the witnesses and medical personnel and examining the soccer goal, it was determined that the
was an accident. Therefore, this Investigation is closed.
unfortunate death of
Detective Mark Jordan
F’outIng:
Paue: 8of8
Exhibit B
ECONOMIC AND FINANCIAL CONSULTING
GROUP, INC.
6 RICI4LAND HILLS COVE• CONWAY, AR 72034 ‘(501)450-1306
October 18, 2011
Mr. Sean T. Keith
Attorney at Law
Keith, Miller, Schneider & Pawlik
nd
224 South 2
Street
Rogers, AR 72756
RE: Estate of Jonathan Nelson
ARKANSAS STATE
CLAIMS COMMISSION
N I V 1 4 Z 011
RECEIVED
Dear Mr. Keith:
At your request, I have calculated the value of the loss of life of Jonathan Nelson (“Nelson”) in
connection with the wrongful death lawsuit resulting from his death on January 26, 2011. My
computations are discussed in detail below and are summarized in the attached tables.
LOSS OF LIFE
Running through the history of economic thought there has been a general consensus that the
monetary value of life can, at a minimum, be determined by the present value of projected
lifetime earnings. Present value represents the amount of money that would be needed at a point
in time so that with appropriate financial investments a flow of lifetime earnings could be
duplicated. The present value of projected lifetime earnings is commonly called “human capital”
in economic literature. Conceptually, human capital is identically equal to the concept of
“earning capacity” that appears in tort litigation. The present value of projected lifetime earnings
can be simultaneously interpreted as a measure of the loss of life suffered by the decedent
because it represents the loss of human capital or earning capacity that would have provided the
basis for lifetime personal expenditures and also a societal loss because of the elimination of the
decedent’s productive efforts from which society would have derived benefit. It should be
stressed that the valuation of human capital is identical to computations of lost earning capacity
which arise in personal injury litigation and can be calculated with equal precision. As stated
above this approach should be construed as yielding a minimum measure of the value of life
because it focuses exclusively on lifetime earnings and ignores many aspects of the “enjoyment
of life”. Given these comments a starting point for my analysis of loss of Life would entail a
consideration of the present value of the income flows that would have been generated by Nelson
had he remained alive. This component of loss of life as well as “loss of enjoyment of life” is
discussed below.
Present Value of Potential Lifetime Earnings
The evaluation of the present value of Nelson’s potential lifetime earnings, which represents his
human capital, entails a consideration of the income flows that he could have generated had he
remained alive. In assigning a value to these income flows a distinction should be made between
past and projected future magnitudes. Past potential earnings are not discounted; however future
potential earnings should be discounted and converted into present value terms. Past earnings are
not calculated in the present instance. In calculating future potential lifetime earnings I have
considered two scenarios concerning alternative assumed levels of educational attainment.
Scenario (1) assumes that by age 19 Nelson would have finished high school and found
employment generating the average earnings of white, non-Hispanic males with that level of
educational attainment. Scenario (2) assumes that by age 24 Nelson would have completed a
college degree and found employment generating the average earnings of white, non-Hispanic
males with that level of educational attainment. The present value of projected future income for
these scenarios is calculated in accordance with the equation below:
T
Present Value of Future Income E Base ancome/( 1 + r)’
t= 1
where T = work life expectancy, which is alternatively assumed to be 37.21 or 48.00
additional years at age 19 for Scenario (1) and 37.39 or 43.00 additional years at
age 24 for Scenario (2). The lower end of these ranges is based on statistical work
life expectancies based on Gary R. Skoog and James 13. Ciecka: “A Markov
(Increment-Decrement) Model of Labor Force Activity: New Results Beyond
Work-life Expectancies”, Journal ofLegal Economics, Spring/Summer 2001. The
upper end of the ranges is based on an assumed retirement at age 67.
Base Income (Scenario I)
$45,742.00 per year based on the United States Census
Bureau publication: Current Population Survey: 2010 Annual Social and
&‘onomzc Supplement, table PlNC04.
Base Income (Scenario 2)
publication.
r
=
$82,508.00 per year based on the above cited Census Bureau
discount factor used to convert future magnitudes into present value terms. For
computational purposes I have assumed r to be equal to 2.5% to reflect the real
rate of return (interest minus inflation) on inflation indexed government bonds.
These bonds would be a financial instrument almost perfectly suited to protecting
against the effects of future inflation.
Performing the calculation indicated by the equation and assumptions above yields a present
value of projec.ted future inwme ranging from $859,016 90 to $1,490,674 47 My computations
are presented on a year by year basis in the attathed rabies (1) and (2), which are based on
Scenarios (1) and (2), respectively.
Fringe Benefits
For computational purposes, fringe benefits are assumed to amount to 29.0% of income. This
figure is based on data contained in the United States Department of Labor publication:
Employer Costs for Employee Compensation June 2011 which indicates that fringe benefits,
net of paid vacation and time off, on average amount to 29.0% of income for civilian employees
in the United States Applying this percentage to the present value of projected future income,
calculated above, yields fringe benefit valuations in the range $249,114.90 to $432,295.60.
Fringe benefit losses can be generated on a year by year basis by multiplying the figures in Tables
(1) and (2) by the assumed fringe benefit percentage.
—
Adding the values of projected income and fringe benefits yields a total valuation in the range
$1,108,131.80 to $1,922,970.07. This range should be interpreted as a measure Nelson’s human
capital or earning capacity.
Loss of Enjoyment of Life
As discussed above, the present value of lifetime earnings would represent a minimum valuation
of the loss of life because it focuses exclusively on productivity and ignores other aspects of the
value of life. Many other joys and pleasures which are independent of earning capacity and are
generally considered to be “priceless” have been lost as a result of Nelson’s death. Consequently
my figures should not be interpreted as capturing the total value of loss of life but rather those
aspects of loss of life that arc readily quantifiable In the attached Table (3) 1 have noted that an
additional figure for loss of enjoyment of life is to be determined by the jury. I have provided
information on Nelson’s statistical life expectancy, 67.3 additional years at the time of his death
(based on the Center for Disease Control publication: United States Ljfr Tables, 2006), to assist
the jury in this determination, I have also provided computations, summarized in the attached
Table (4), in which future loss of life figures can be reduced to present value. The methodology
encompassed in my computations could be utilized for any annual value determined by the jury.
In summary, Nelson’s loss of life would be worth at least $1,1O8,13L80 to $1,922,970.07 (the
present value of his expected lifetime earnings or human capital). Losses associated with the lost
enjoyment of life should be considered in addition to this amount in order to arrive at a more
accurate valuation of the loss of life suffered by Nelson,
My computations of economic loss are summarized in the attached tables. If you have any
questions or if! can be of further assistance in this matter please do not hesitate to contact me,
Yours very truly,
RALPH ft SCO11, JR., Ph.D.
E.’ pqiqxJ
Statement of charges
EMERGENCY PHYSICIAN STATEMENT
BENTON EMERGENCY GROUP, LLC P0 BOX 2995 SAN ANTONIO, TX 78299-2995
ACCOUNT NUMBER
STATEMENT DATE
3/11 /11
0016899875
L
—-—
PATIENt !AME
OATh OF SEPVC
NELSON, JONATHAN
1126111
I’
PLACE OF SøVCE
TAX I,D. NC
t’”
EMERGENCY PHVSAN
NORTHWEST MED CTR SENTON
HUGH JACKSON MD
BENTONVILLE, AR
DATE OF ER VICE
CPT CODES
92950
99285-25
DESCRIVflON OF SEA VCESIPROCEDIJRE$
AMOUNT
CARDIOPULMONARY RESUSCITATION, (CPR)
EMERGENCY EVALUATION & MANAGEMENT SERVICES
TOTAL CHARGES
2402.00
TRANSACTIONS;
2/09/11
Ins. Claim Mailed to; BC/BS OF ARKANSAS
3/08/11
Payment
BCIBS OF ARKANSAS
3/08/11
Adjustment BLUE SHIELD DISCOUNT
442.671944 33-
Payment Reminder Flexible Spending Accounts and Health Savings accounts may be used for all
unpaid balances. Please consider our pay online option when selecting your electronic payment
method. You may also call 8OO-25-0953 for assistance with processing your payment. Thank You
DUE DATE
Pay online http I!epay pdc4u com1040042
C4R
4EMG
NDN1C
BALANCE DUE
4/08/ti
N*PT$..43ttA
Y01P 4IiY QU !QNSASOUTTHlSllLL PLASEQO
8O0-85$6838) TO AVØID fEAK HOUR$ CALl.. TUE-)RfBETWEEN V%M AND 7PM (ENTRAL rANPARD TIME
ARKANSAS STATE
CLAIMS COMMISSION
NOV 1 4 2011
RECEIVED
—
______________________________
___
_____
_____
____
Epting Funeral Tome
CASH ADVANCFS
“Our Family Serving Yours”
ASSISTING YOU
Mai’ing
Address:
70914 Walton iloukr#errd
BentonvIUe Ark 72712
479) 273-3443
CatilI
WITH ThREE NWA LOCATIONS
Physical Addrcss:
3210 lkllo Vista WVV
283 College
lWta Vsaz Ark 72714
Pavruewlk Ark 72701
(‘479) $55-391m
(47w 443-3443
www.eptingfuneralhome. webscom
9eceased:
9ate OfDeath:
1ace Of Death:
9te OfStatemem’:
s41
l
ins OF The Death Ccmficate
‘CopicS
Clergy
Miuician
Paid ObIt Notices.., (
PaidOhitNetices. (
Paid Obit Noticcs..(
Open/Closing Of The Grave
1-lairstyting
Honor Ciottrd
*
—
)
tOTAL CASh ADVANCES
SUMMARY OF CHARGES
Total Funeral Home Charges
Loca1Sa1esTm(
%)
total Cash Advances
7
‘rofksriwtal Services:
Services of the Funeral Director and Staff
mbamin..
)ther Prupa on of th Body...
lase
*
.....
*
‘acthaea Eqwpmen4 and Siqif
GRAND TOTAL:
LeasCmdits
or
or Funeral
serv(e
I
)
Other
FOR S1!RY1CFS SECLECWO.
iinoñai
)
Other
-
*
JIARGE
Each
.
—
-
____
___
/S_Q3i
)
--
-
or Gntveside Serviç,,
:QrChurch Service
—
}ansporkuion:
‘ffRemains To The Puecud Home
BALANCE DUE: $
—0
——
Billing Address:
edan
Disclosures:
rvice/UtiIity Vehicle
)ther ServicesfFacilitieWEqwpment:
Reason For EnihulyP’
TOTAL:
—
Ifany law, cemetery or crematory requirements have rrquiredthe purchase ofany
ite,n I k4_thelmPoK
frementis
‘J{ARGFS FOR MERCHANDiSE SWECFEU
asket(
uter Burial Container (_____J...,,,.______
FuR Paynaent is due no later than:
hank-You Cards......(
Other Instructions)Terms of Payment:
_
).4SlO per box..,..
—
egister Book
einal Folders
Ilwrefry acknowledge that ihave the 1egelrgh1 to mvunge thefinal servicesfor the
decease4 andlouthorize thisflua
b#shmentoperforin the
esselectea
flmtslrgoods and incur outside d
esspecftedin tins Statement Iathwwledge U
I have received the General Price L1s1 mul the Casket Price List and the Outer
Burial
Conkzhwr Price List. Charger are onlyfor the items thatyvundected or that are
requited Zfwe are ‘equired by law or bya cemetery or crematory to use any item. wi
have explained it in writing above. Iyou selected afimeral that requinsd embalm ing
you may have opayfor embalming If we chargedyoçfor embalming we have
explained ft above.
folders
too
‘emation Urn (
epsakeUrn (
onwncat(
inctyLocaxiun(
her
(
Signature
)
TOTAL:
—
Please P#iutN*me
lARGE fOR MERCHANDISE SECECED “SPECIAL CHARGES”
Social Security Number:
mediate Burial
Secondary Signature:_____________________________________
Please Print Name:
—i’lc:
-
Social Security Nnmber
This Funeral Estirbiishment agrees loproukie all servi
advances lisied on this statement
_—-
ilvesy and Set Up of the Outside Container
TOTAL:______
)TAL FUNERAL HOME CHARGES...
7Q I
Funeral
Director’s Signs
EmalMddress:
___________
______________________
___________
_______
________
____
_____
______
______
_______
________
______
__
___________
___________
___________
___________
____
_____
____
____
___
Epting Funeral YLome
CASH AI)VANCES:
“Our Famisy Serving Ycirs”
ASSISTING
Mailing Mdress
Certified Copies OF The Death Certificate
FHREE NWA LOCATIONS
YOU Will!
Physical
709 N, Watto.s Roukwud
Benloiwifle. Ai& 72712
2I0 lklkz Vlxta Way
Bella Vista. Ark 72714
479) 273-3443
(479) 855-3900
—
Address:
28£ College
Fayeuevitie Ark 72701
(47) 443-3443
www.epungfinteraIhomewebs.com
Jeceased:
Copies
Each
—
Clcny
Musician
PaidObitNoticcs.,,.(
PaidObitNotices,,. (
Paid 0611 Nodces..(
OpeswCloaing Of The Grave
Kaustyhng
)
)
—
—
—,
F1c,nor Guard
/
)ate OfDeath:
Dlace OfDeath:
‘)ate OfStatement
—
Othcr(
-
Other(
II
SUMMARY OF CHARGES
Total Funeral Home Charges
Local Sales Tax (
%)
Total Cash Advances
i1ARGJ FOR SERVICES SECLFCTEft
‘rofes,gkjnal &rvtces:
lasic Services of the Funeral Director arid StalE,
C)
TOTAL CASH ADVANCES:
—
I SO
,‘_iT;:_2,:-
mbalming.....
GRAND TOTAL:
ARKANSAS STATE
QLAIMS..cOMMJSSJ0N
or Visitation
or Funeral Ceremony
or Memonal Service
LcssCreds
—
:z:NrIII:4: 2011
or Graves ide Service
or
2
$
Church Service
ransportation:
ransfar of Remains To
ineral Vehicle
fl
BALANCll DUE: $
R
H<
-
Billing Address:
imo
alan
:rvice/Utihty Vehicle
ther8ervrceslfacildles./Eq*4pmenz:
Disclosures:
ReasenForEmba1adng
TOTAL:
—
C’
If any law, cemeiy or crematoly requirements ha ere.qufredthepurciwse f any
ka,ts liste4 me law or requlremewl is plainedbelaiv—”
IIARGFS FOR MERCHANrnSE SECECIED
der Burial Container
ank-You Cards
(
Full Payment is due no Eater than:
(-.J
)..(?) $10 per boir
—
Other Instructions/Terms of Payment:
gisrer Book C
I hereby aclarowledge that Ihave the legal right to arrange thefinal servicesfor the
decwe4 andlauthorlee tbmfi era!
limet’,, to perfirm the services selected,
furnish good.s w
cur uts*k charges specfled in thi&atement lacknowledge :.
I have received the General Price List, and the Casket Price Ltet and the Outer Burial
Container Price LtsL Charges are onlyfur the items that you selected or that are
requireiL f we are required by law or by a cemeteiy or crematory to use any items, we
have espláhwd it hi writing above. .ffyou selected afweeral that iwquired embalming
you may have topayforemboinang jf we chargedyoufor embalming we have
explained it above.
:monal Folders CLgrgcQLiemIJ_J folders
matioiiUrn(
3
,.
1
sake Urn
nument(
netery Location (
er
)
(
Signature of Purchaser:____________________________________
)
TOTAL:
Please PriutNanie:
—________
ARCE FOR MERCHANDISE SECECILI) ‘SPEClAL CHARGES”
Social Security Number;
cdialt Burial
ct Cremation.
Secondary Signature:,____________________________________
Pleitse l’dntName
Social Seriwfty Number:
This Funeral Establishment agreesto provide all service.
cash
advances listed on this statement
—________
3
ivery and Set Up of the Outside Container
,
TOTAL:
TAL FUNERAL HOME CHARGES...
C’
—
Foneral Director’s Slgnature
Email Address: pl
uieralhomeQltnbor.com
-
Bii026O5j8
01/29/il
01/26/11
#2fl i/li
o i 11/11
JONATHAN N
SON
0
Billed Balarca
ELECTRQDE 5/PlC
26/11
01/26/il
DB 02
SCfl$ OUT OF STATE
SCBS
6, 1936Q
1010
l,l?34 74CR
3,975.91CR
Accourt Ba1ance
Estimated Insurance Liability’
Patient RespT$1bijty’
1,104.05
0.00
1,104.05
ThañlcY for seletting Northwest iieafth Siim for
tour hea1thcare needs.
Yaw- insurance has paid. this account and thebajance
is now your
responsibility to pay,
Payment is cfte uppn rev1tt of th1 bilL
Customer
Service Staff 1s aa1Iafre fr4tfl 8:O am’ 4Opm
Mdy’
Fri4ay at
8?7 45ê94?Z r, 4T41
-
If you
the
are unable to pay the ba1anc in fiii1 at this time,
please contac.t
regaidno am*t. ors
Ho.te
SUMMARY OFACGOUr’4T FOR:
NAJHAN J 4ELS0N
,
FQwbPAccotj
TOALCH*RG5ANJUsTMe
TOThLiNSUANCE PAYMENTs
TOTAL PATIENT PAYMENTS
toTAl.ACcOUNTBALANOE
E1*4ATED1NSURCEUAjUTY
AMOUNt tUE
ARKANSAS STATE
CLAIMS COMMISSION
NOV 1 4 2011
RECEIVED
6 193
1 , 113
3,975
0
.60
64CR
91CR
00
.
.
l,Q4.fl5
0.00
1 , 104. 05
BENTONVILLE AMBULANCE
801.) SW A STREET
I4ENTONVTLLE, AR 72742
(877)927-9910
NATHAN NELSON
03 SW TUNHRIDGE DR
l’age 1
HENTONVILLE, AR 72712
Account Number: NELS000009
April 4, 2011
Date
Patient
Bill No,
Description
01/26/2041
01/26/2011
01/26/2011
01/26/2011
01/26/2011
01/26/2011
JONATHAN
JONATHAN
JONAThAN
JONATHAN
JONATHAN
JONATHAN
20110320
20110320
.01 10320
20110320
20110320
20410320
01/26/2011
JONATHAN
JONATHAN
JONATHAN
ALS LEVEL 2
MILEAGE- GROUND, PER STATUTE MILE
EXT DEFIB PACING ELECTRODES
IV ADMIN W/WO SAUNE
SALINE SOLUTION 1000 ML
EPINEPHRINE
20110320
20110320
20110320
ADDL AMBULANCE SERVICES
INTUI3ATIONFOAORFT
SODIUM BIGARI3
01/26/2011
01/26/2011
Amount
Total for Hill No. 20110320
03/31/2011
PAYMENT- BLUE CROSS
Estimated Insurance Responsibility
Patient Responsibility Now Due
>
30 Days
>
60 Days
$177.22
>
90 Days
PLEASE NOTE:
ARKANSAS STATE
CLAIMS COMMlSSjOf4
NOV 1 4 2011
RECEIVED
$4.42
$10.00
$50.00
$2000
$2.45
$770.12
($592.90)
Total Patient Payments
Total Insurance Payments
Current
$55000
$35.25
$48.00
$50.00
$0.00
($592.90)
$0.00
$177.22
Balance
$477.22
Exhibit D
IN THE CIRCUIT COURT OF BENTON COUNTY, ARKANSAS
PROBATE DIVISION
IN TIlE MATTER OF THE ESTATE OF
JONATHAN NELSON, DECEASED
)
)
NO. PR-201 1-501-5
)
LETTERS OF ADMINISTRATION
lIE IT KNOWN:
That Nathan Nelson, whose address is 503 SW Tonbridge Drive, Bentonville, Arkansas
72712, having been duly appointed Special Administrator of the estate of Jonathan Nelson,
deceased, who died on January 26, 2011, and having qualified as such Special Administrator, is
hereby authorized w act as such Special Administrator, for and on behalf of the estate and to take
possession of the property thereof as authorized by saw.
ISSUED this
day of September, 2011
I3enton County and Probate Clerk
ByJ
Deputy Clerk
ARKANSAS STATE
CLAIMS COMMISSION
NOV 1 4 2011
RECEIVED
u
BEFORE TIlE CLAIMS COMMISSION
OF TIlE STATE OF ARKANSAS
NAThAN NELSON,
AS PERSONAL REPR ESENTA riv OF
[HE FSTATE OF JONATIION NELSON
VS.
CLAIMANT
Claim No. 12-0401-CC
ARKANSAS DEPARTMENT OF hUMAN SERVICES.
DIVISION OF (If ILDCARE AND
EARLY CHILDHOOD EDt CATION
RESPONDENT
ANSWER
Comes now the Respondent herein, by and through its attorney, Erasmo
J. Reycs, of the
Office of Chief Counsel and lbr its Answer thereto states as follows:
I.
information
Respondent denies all liability in the above referenced claim. Account
is:
Agency Number:
Cost Center:
Internal Order:
Fund:
Fund Center:
2.
071 ()
41 7728
EIDMXO5XX
PWP 3000
896
Respondent atlirmatively
asserts
that this claim should he dismissed under Rule
12(b)(6) of the Arkansas Rules of Civil Procedure as it fails to state
facts
upon which relief can
be granted.
3.
Respondent affirmatively asserts that it is not a proper party to this suit and
as
such, the complaint should be dismissed.
4.
Respondent affirmatively asserts that this accident occurred in an area outside
and
beyond the playground area licensed and approved by the agency tbr use by the child
care center.
See Evhihit A. As such, Respondent is not liable for this accident and the Complaint
should he
dismissed.
3A31A(E
5.
These affirmative detenses are more fully argued in the accompanying Motion to
Dismiss am! Brief in Support of the Motion to Dismiss.
WI-I ER EFOR F, Respondent respectfully requests that this Honorable Commission
dismiss the complaint and discharge the Respondent
from
any liability thereon.
Respectfully submitted.
ARKANSAS DEPARTMENT OF HUMAN SERVICES
OFFICE OF CHIEF COUNSEL
BY
—
-1rasrno J. Reyes
Attorney Bar #2006-246
700 Main Street Suite 260
Little Rock, AR 72201
Tel: 501-683-5925
Fax: 501-682-1390
--
—
CERTIFICATE OF SERVICE
I, the undersigned, do hereby certify that on this day of December, 2011 a true
and
correct copy of the firegoing Answer was mailed to the thilowing individual via first class
mail,
United States Postal Service.
Mr. Sean Keith
Attorney at Law
224 S. 2h1 Street
Rogers, AR 72756
Erasmo J. Reyes
.z
Arkansas Department
of Human Services
Division of Child Care and Early Childhood Education
Benton County
900 SE
th
13
Court
entonviI1e, AR 72712
•
479-273-9011
•
FAX 479-273-9055
ovember 30, 201 1
lo whom it may cnncem:
My name is Melissa Myers. I am a child care licensing specialist for Benton County. Adventure Club at
Elm Tree is a facility that is on my caseload to monitor, Adventure Club at Elm Tree is a before and after
school child care center located at Elm Tree Elementary School in Bentonville. AR. The normal hours of
operation are 6am to 7:30am and 2:30pm to 6pm. The program is open ftill days occasionally when
school is closed tor Christmas. spring, and summer breaks. Adventure Club at Elm Tree was monitored
on 12/22/10, 02/1 5/Il, and on 10/26/11. [)uring monitoring visits the playground area is inspected.
Adventure Club at Elm Tree has two separate playground areas with two separate play structures. One
playground area measures 100 feet by 100 feet and the other playground area measures 53 feet 6 inches by
169 feet, These are the only two playgrounds areas that are inspected and approved for use by child care
licensing. The soccer fields and other play areas are not allowed for use by child care licensing and
therefore are not inspected. During the inspections noted previously, there were not any violations
concerning the licensed playground areas. There are two areas that contain soccer goals on the school
grounds. One area is to the left of the licensed playgrounds and one area is to the right of the licensed
playgrounds. The area to the left of the licensed playgrounds is a considerable distance from the
playground. There is a pavilion, a fenced off retention pond area, and a small baseball diamond
separating the soccer goals and the playground. The area to the right of the licensed playground is a small
distance apart and has a chain link fence on the side nearest the playground. The chain link fence does
not completely enclose the soccer area hut is does divide it from the playground. If I may be of further
assistance please do not hesitate to contact me at 479-273-9011 ext 176.
Sincerely,
Melissa L Myers
Benton County Child Care Licensing Specialist
www.arkansas.govkthhs
Serving more than one million Arkansans each year
BEFORE TIlE CLAIMS COMMISSION
011’ TIlE STrE OF ARKANSAS
NAIHAN NELSON,
AS PERSONAL REPRESEN [AlIVE OF
THE ESTATE OF JONA [lION NELSON
CLAIMANT
Claim No. 12M4OUCC
VS.
ARKANSAS [)EPARPMENT OF’ HUMAN SERV[CES,
DIVISION OF (‘IIILDCARE AND
EARLY (1 IILDITOOD EDt ICATION
RESPONDENT
MOTION TO DISMISS COMPLAINT
Comes now the Respondent herein, by and through its attorney, Erasmo J. Reycs, of the
DHS Office of (‘hief Counsel, and fur its Motion to Dismiss Complaint, states as tbllows:
I. According to Rule .1 of the General Rules of Practice and Procedure befure the
Arkansas State Claims Commission, the Rules of Civil Procedure as adopted by the Supreme
Court of Arkansas will apply to complaints tiled with the Commission.
2. Respondent asserts that this action should be dismissed pursuant to Rule 12(b)(6)
of the Arkansas Rules of Civil Procedure tbr failure to state facts upon which relief can he
granted.
3, Respondent asserts that the facts plead by the Claimant do not support a cause of
action for wrongftil death against the Department of Human Services
—
Division of Childcare and
Early Childhood Education.
4.
Respondent further asserts that it pertbrms regulatory functions and does not own
or operate the facility mentioned in the Complaint. As such, it is not a proper party to this suit.
l’his cause of action should have been brought against the facility that owned the property on
which the unfortunate event occurred.
5. ;\dditionallv. Respondent asserts that ihe accident occurred in an area outside and
beyond the playground area licensed and approved by the Department for use by child care
center. As such, the Department is not liable fur this accident.
6.
This
Motion
is supported by an accompanying brief
WHEREFORE, Respondent respectfully requests that this Honorable Commission
dismiss the complaint and discharge the Respondent from any liability thereon.
Respectfully submitted,
ARKANSAS I)EPARTMENT OF HUMAN SERV[CES
OFFICE OF CHIEF COUNSEL
1
BY
Erasmo J. Reyes
Attorney Bar #2dö6-246
700 Main Street Suite 260
Little Rock, AR 72201
Tel: 501-683-5925
Fax: 501-682-1390
--
—
CERTIFICATE OF SERVICE
1, the undersied, do hereby certify that on this y of December, 2011 a true and
correct copy of the foregoing Motion to Dismiss the Complaint was mailed to the following
individual via tirst class mail, United States Postal Service.
Mr. Sean Keith
Attorney at Law
nd
224 S. 2
Street
Rogers, AR 72756
oJRey
HEFORE TilE CLAIMS COMMISSION OF TIlE STATE OF ARKANSAS
NATHAN NELSON, AS 1ERSONAL
REPRESENTATIVE OF THE ESTATE
OF JONATHAN NELSON
VS.
CLAIMANT
CLAIM NO. 12-0401-CC
ARKANSAS DEPARTMENT OF
HUMAN SERVICES, DIVISION OF
CIIILDCARE AND EARLY
ChILDHOOD EDUCATION
RESPONDENT
Claimant’s Response to Respondent’s Motion to Dismiss
COMES NOW, the Claimant, by and through his attorneys at Keith, Miller,
Butler, Schneider & Pawlik, PLLC, and for his Response to the Respondent’s Motion to
Dismiss, states as follows:
1.
Fhe Claimant’s Complaint has sufficiently stated a claim against the Respondent.
2. The Respondent’s Motion to Dismiss is premised on arguments and facts that are
beyond the Pleadings which is inappropriate for an Ark. R. Civ. P. 12(b)(6) Motion to
Dismiss and should not be considered.
3. Ark. R. Civ. P. 12(b)(6) does not allow for new facts and evidence to be
introduced through the motion to dismiss. Any insufficiencies of fact or law alleged by
Respondent are to be based upon the allegations contained solely in the Complaint.
3.
ITherefore, because the allegations in the Claimant’s Complaint, if taken as true,
state a cause of action against the Respondent and because the Respondent has premised
SiAfE
t\MS CCMMlSSON
I
Oil
rECE!’JED
__________
us Motion on
in
argument that does riot test the suf liciency of the Complaint, the Motion
to Dismiss should he denied.
.
Respondent has admitted that it has regulatory and licensing power that
hildcare lacilities
to
allows
legally operate .As result, Respondent’s inspection and licensing
powers directly allow childcare Ficilities to operate in the State of Arkansas, Part of this
licensing and regulatory power includes inspecting and ensuring the safety of playground
equipment at licensed facilities. For this reason, a cause of action against Respondent is
proper.
6.
Respondent’s failure to properly inspect and regulate playground equipment was
negligence and was the direct cause of Jonathan Nelson’s death.
7. Claimant’s Response is supported by an accompanying hrief
WHEREFORE, the Claimant prays that the Respondent’s Motion to Dismiss is
denied. ft)r their costs and attorneys
Ibes
in preparing this Response, and all other relief
6w which they may be entitled.
RESPECTFULLY SUBMITTED.
Nathan Nelson, as Personal Representative of the
Estate of Jonathan Nelson
I
zt-__
f _I/vj
Sean T. Keith
Bar No. 93158
Anna R. Betts
Bar No. 09176
Keith, Miller, Butler, Schneider & Pawlik, PLLC
224 S. 2nd Street
Rogers, AR 72756
Telephone: (479 6210006
(‘KRTIFICA[E OI’ SKRVI(1
1. .\nna R. Betts, do hereby certify that on this 14th day of December, .O1 I.
caused the above document to he served on the individuals named below, by First Class
US. Mail, postage paid.
Erasma J Re yes
OO Main Street, Ste. 26()
little Rack, 1
1R 72Ol
I,
(;u}
Anna lietts
STA
CLAIMS COMMISSION DL
OPINION
3,000,000.00
Amount of Claim $
I 2040ICC
Claim
Attorneys
Nathan Nelson
-
vs,
Sean KeiLh. Atrorne
Claimant
Claimant
Breck I lopkins. Chief Counsel
Erasmo J. Reyes, Attorney
ent
-
State of Arkansas
Date Filed
KET
R spondent
Jerry Bern’, Fiscal Officer
Type of Claim iongfii1Deafl_
NicmbtrJL2QLL
FINDING OF’ FACTS
ihe Claims Commission hereby unanimously grants the Respondent’
s Motion to
[)ismiss” for the reasons contained therein. Therefore, this claim is hereby
unanimously
denied and dismissed.
IT IS SO ORI)EIUD.
CONCLUSION
The Claims Commission hereby unanimously grants the Respon
dent’s “Motion to
Dismiss” for the reasons contained therein. Therefore, this
claim is hereby unanimously
denied and dismissed.
Date of Hearing
January 12, 2012
—,
z’
-
January 12, 2012
Date of Disposition
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B 172012 FRI 02:43 PM keith miller butler webb
P. 01
FX NO, 4196316890
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February 17, 2012
hi
VIA FAX 5Oi-6a2-2$23
Arkansas State Claims Commission
101 East Capitol Avenue, Suite 410
Little Rock, AR 72201-3823
RE:
ijr’
-,.,
i-Tearing before the Legislative Committee on the Matter of the Wrongful Death of
Jonathan Nelson, ACC Claim No. 12-0401-CC
To Whom It May Concern:
Please accept this letter as a request for a hearing in front of the joint Legislative Claims
Review Committee subsequent to the denial of the Estate of Jonathan Nelson’s claim by the
Arkansas Claims Commission.
Brief Summary of the Claim
On January 26, 2011, the day of Jorwthan Nelson’s tragic death, be was playing with
several of his friends during the last recess session of the day. Located on the playground where
the children were playing were two uratnchored, homemade soccer goals. Jonathan and one of
his friends were squatting in the grass just behind one of the soccer goals. Several other students
were playing on or around the goal. Although no one was climbing on the goal or rocking it, it
began to tip. As the goal began to tip backwards, the students who had been leaning on the goal
posts immediately jumped clear and yelled to Jonathan and his friend to do the same. Jonathan’s
friend was able to get clear. However, as Jonathan tried to run away from the falling goal, he
tripped and sprawled out in the grass. As Jonathan lay there helpless, there is Little doubt that
from this supine position, he saw the goal falling towards him just before it crushed his skull and
broke his neck.
Jonathan’s death was foreseeable and preventable. The safety violations on the
playground that day with regard to the soccer goal were numerous. The goal that killed Jonathan
Nelson was made of 2”x2” square metal tubing. It was a homemade goal, with the bottom being
the same width as the top, rather than being wider for better stabilization of the goal. Not only
was the goal top-heavy, it was also situated on soft, unlevel ground. Additionally, the unsafe
goal was not located in a soccer fiel4, but was instead placed on a playground where children
could play on and around it.
Pub-002, the Mtniniu.m Licensing Requirements for Child Care Centers,” regulations
promulgated by the t)epartment of Human Services (PBS), mandate safety guidelines for
playgrounds at child care centers in Arkansas. AU child care centers in Arkansas are required to
abide by these regulations which are partially adopted from Consumer Product Safety
Commission (CPSC) guidelines and are based off their recommendations. These regulations
22-I Suuih 2nd Srreei. Rngi.rs. Arkinsii 72756
470-621 —0006 ( pliunc) 470-63 I -6I0 ( ‘ex I wwwurka ILnrncys.cum
FEB—17-2012
42:44 PM keith miller butler webb
F4X NO. 4796316890
P. 02
Estate of Jonathan Nelson
Page 2 of 2
objects” and that “equipment, which is designed to be anchored, shall be properly anchored.”
(See Section 902 “General Hazards”). The regulations also state that “[ajil equipment should be
sturdy, clean, and safe.” (See Section 1050 “Furniture and Equipment”). The soccer goal that
caused Jonathan’s death was an obvious hazard and clearly not sturdy or safe. Thus this goal
was inherently hazardous and was in the playground area in violation of the guidelines set out by
OHS.
DFTS is required to inspect child care centers for violations of these regulations. The
Adventure Club at Elm Tree Elementary was inspected on November 30, 2010, and December
22, 2010. Neither of these inspections resulted in arty citations or violations to the Adventure
Club. Had OHS performed their inspections to the standard of care they are charged with, this
goal would not have been on the playground to fall on and kill Jonathan.
DHS has attempted to (lodge responsibility by stating that the Adventure Club has not
authorized the use of’ the playground where Jonathan was killed and therefore they cannot be
responsible for deadly, dangerous equipment on that playground. They have offered no affidavits
to this effect and have not clearly identified which two (2) areas they have approved. Because
OHS claims that the playground where Jonathan was killed was not within their “approved
areas,” they are not responsible for inspecting the playground equipment on that particular
playground. Flowever, we will provide testimony or affidavits from the principal and a teacher
at Elm Tree Elementary who have regularly observed the Adventure Club teachers and children
using all five (5) of the play areas on the Elm Tree Elementary premises, rather than just two (2)
as described by OHS.
What happened to Jonathan could happen to any other child in this state if nothing is
done to ensure that OHS fultills their obligation to properly inspect child care facilities. The
Nelson family has brought this claim against OHS in hopes that OHS will take responsibility for
their careless actions and faulty inspections. Their desire is to effect change so that no other
family has to endure the unimaginable grief and pain they have suffered through the loss of their
young son.
ConciDsian
The Estate of Jonathan Nelson respectfidly requests a hearing before the joint Legislative
Claims Review Committee. My office is available to the Committee to answer whatever
questions the Committee may have or to provide any further requested documentation.
Sincerely,
Sean T. Keith
Keith, Mifler, Butler
Schneider & Pawlik, PLLC
STKJmI