Vote to approve $1 million claim in boy’s death fails


LITTLE ROCK — The Joint Budget Committee on Wednesday rejected a recommended $1 million award in a wrongful death claim by the parents of a Bentonville boy who was killed when a soccer goal fell on him at school.

With 29-votes needed for approval, the budget panel voted 23-7 to grant the award in the case of nine-year-old Jonathan Nelson, who died after being struck by the structure on Jan. 26, 2011, during recess at Elm Tree Elementary School in Bentonville.

After the vote, Nathan Nelson, the boy’s father, said he was surprised and disappointed.

“I think we’re just extremely frustrated by this process,” Nelson said.

The budget committee’s Claims Subcommittee heard testimony in December and February on the claim against the state Department of Human Services that originally was considered by the state Claims Commission and dismissed.

Nelson also said he was led to believe that Wednesday’s vote would be a formality because the award had been recommended by the subcommittee.

“I just hate to keep dragging my family and everybody through this,” he said. “We just need closure as a family. Our whole focus and goal is to make sure that kids across the state are safe and DHS is accountable.”

Sean Keith, Nelson’s attorney, also expressed frustration.

“If DHS thinks they can lose all the way through and then by some political maneuver can get the claim not appropriated, then we’re back at square one,” he said. “it’s very frustrating.”

The committee’s vote came after Richard Weiss, director of the state Department of Finance and Administration, said the Beebe administration had “real problems” with the award.

Last month, the Claims Subcommittee found DHS liable in the boy’s death and recommended the $1 million award.

Keith argued during a Feb. 26 hearing that the school has sovereign immunity, so the family filed a $3 million wrongful death claim against the state because the soccer goal was on a playground that, along with the school, had been inspected and licensed by DHS as an after school child-care center.

The state Claims Commission last year rejected the claim, ruling that the accident occurred during school hours, the boy was not enrolled in the child-care center and he was not under the supervision of employees with the center.

Keith argued DHS was responsible because its inspector was responsible for checking equipment on the playground.

The subcommittee ultimately agreed with the family that the playground equipment, including the soccer goal, should have been inspected by DHS officials because it is on the playground used by the after school day-care children.

During Wednesday’s meeting, Sen. Jeremy Hutchinson, R-Little Rock, question whether it was a good idea for the budget committee, which had not heard any of the testimony or evidence, to overturn the recommendation of the subcommittee, which spent more than five hours hearing the case.

“I think it’s inappropriate, a bad precedent,” he said.

Rep. Lane Jean, R-Magnolia, who is on the subcommittee, said the decision to grant the award was not unanimous.

“I did not see the liability that the state had,” he said, adding the accident happened on school property during school hours.

After the meeting, Sen. Robert Thompson, D-Paragould, who is co-chairman of the subcommittee, said he was not sure what the subcommittee will do with the case. He said it might make the same recommendation to the budget panel, discuss whether to reduce the award or do nothing.