Minnesota DNR wants Moorhead children’s drowning lawsuit dismissed – West Central Tribune | WHs Answers

MOORHEAD — The Minnesota Department of Natural Resources wants a judge to dismiss a lawsuit alleging the agency was responsible for the 2018 drowning of a Moorhead girl.

An Aug. 8 jury trial in Freedom Kerkula’s case was called off after DNR asked Judge Gail Kulick to rule that the agency should be exonerated from liability in the death of Kerkula’s daughter, Grace Bettie. The 9-year-old drowned in an overflowing swimming pond at Buffalo River State Park near Glyndon on June 27, 2018 during a Moorhead Police Department summer youth program.

A hearing for attorneys to present their arguments on the motion is scheduled for August 16.

Clay County prosecutors declined to pursue criminal charges in the case. Kerkula filed the wrongful death lawsuit in Clay County District Court in August 2019.

The DNR had previously argued it had recreational immunity, but the Minnesota Court of Appeals disagreed. The higher court said the agency failed to warn Grace about a hidden, dangerous condition in the pond: a sudden drop that wasn’t visible through murky water.

In a 21-page argument filed in March, the DNR denied there was evidence of a “hidden levy”. The agency also claimed the pond was not an “artificial condition” but “duplicated natural conditions.”

The pond where Grace drowned was constructed in the 1930s and was intended to resemble a “naturally occurring pond,” the DNR said. It was reconstructed in 2001 and 2004 to improve water quality.

Grace Bettie of Moorhead, right, is pictured with her mother, Freedom Kerkula, in this undated photo. Bettie, 9, drowned on June 27, 2018 in the Buffalo River State Park swimming pond near Glyndon, Minnesota. Especially for the forum

The DNR noted that deeper areas were marked with buoys and depths were indicated with signs in high traffic areas.

Immunity bars have “harsh consequences,” but if they didn’t, the state would have to create child-safe parks, the DNR said. It would “violate the spirit underlying the preservation of ‘Minnesota’s natural and historical heritage for public understanding and enjoyment,'” it added.

The dangers of swimming there were obvious and the DNR had warned swimmers of the danger, the agency argued.

On the day Grace died, a park naturalist spoke to the group of nearly 180 children about the safety of the water, the DNR said in court documents.

That conversation included telling the children about mud churning up at the bottom of the pond, pointing out the roped buoys, and warning children uncomfortable with deep water to stay away from the marked deep areas, states in the file.

The park naturalist also asked children who couldn’t swim to raise their hands, which Grace did, the filing says.

“DNR staff repeatedly told escorts that they needed to supervise the children,” the filing says.

Minnesota courts have used immunity in similar cases, the DNR argued.

In his June motion to have the case dismissed, Kerkula’s attorney Eric Magnuson called the pond artificial and added that there was ample evidence that it posed a hidden danger. He also argued that the signs did not indicate the exact locations of the cliffs or the correct depths.

He claimed that the buoys did not mark the launch sites. The depths varied and were not properly marked on the buoys, he said.

The park’s naturalist made conflicting statements about whether she told the children there were drains in the pond and she didn’t say where they were, Magnuson argued in his filing. Children are also distracted when given directions, he said.

Staff did not perform swim tests on the children or tag the children to show which were weak swimmers, he said.

“None of the lifeguards warned Grace that she was approaching the deep end of the pond,” Magnuson wrote.

A child told a lifeguard and attendant that Grace had gone underwater, but staff searched the land for 11 minutes before looking in the water. Grace’s body was found in the deep end of the pond after a five-minute search in the water.

A jury should be allowed to decide whether the DNR is entitled to immunity rather than a judge dismissing the case, Magnuson said. A jury should also decide whether the warnings about the dangers of the pond were “appropriate and effective,” he said.

The City of Moorhead and the Moorhead Police Department were also defendants in the case, but Kerkula settled with them last year.

The pond has not reopened since 2019, although officials said it was due to an inability to hire enough lifeguards.

Attorney Michael Goodwin, representing the DNR, and Magnuson have not returned any phone messages left by the forum.

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