Update:  March 5, 2013

As of this morning the Joint Budget Committee has still not taken up the agenda item which would fund the claim.  The matter is on the agenda for the March 6, 2013 meeting and the family is hopeful that any politics will be taken care of and they can begin to reach some closure in Jonathan’s death.

On Friday night the delay of the claim was the top news story for KNWA and can be seen here:

 http://nwahomepage.com/fulltext/?nxd_id=409602

Update:  March 6, 2013

This morning the claim was presented to the 56 person Joint Budget Committee.  The only person allowed to speak was Richard Wise from the Department of Finance of Administration.  Mr. Wise had attended no hearings regarding this claim and knew nothing of the evidence that was presented.  He simply said it shouldn’t be paid.  After a voice vote was taken the claim was clearly passed among those present at the meeting.  Three people asked for a roll call vote which is highly unusual in an appropriation matter.  Senator Stephanie Malone of Ft. Smith was one of those asking for the roll call vote.  The Committee voted 23-7 in favor of the claim.  However, because there are 56 members on the Committee it has to pass with a 29 vote majority.  Because there were only 30 members present the vote failed.  It was then referred BACK to the same sub committee that decided the claim last Monday for yet another hearing.  This is extremely frustrating as it appears DHS has again avoided responsibility for Jonathan’s death.  The family will continue to fight what has clearly now become a political process.

In the early morning hours of January 26, 2011 Nathan Nelson gave a good bye kiss to his wife Sara and two boys, Tyler and Jonathan.  The boys, despite their age difference,  still chose to share the same room.  Nathan would have never imagined that this would be the last time that he would see 9 year old Jonathan alive.  That afternoon, as Nathan sat in a meeting with a customer in

Toronto, Canada his phone began to ring with calls from unknown numbers.  Believing that his meeting would be over very soon and not recognizing the numbers he didn’t answer.  But the phone continued to ring  with different unknown numbers.  Picking up the latest call and saying hello, Nathan was told that Jonathan had been in an accident on the school playground, that a goal post had hit him in the head and that he had been taken to the hospital.

Nathan assumed that Jonathan, the energetic child that he was, had run into a goal post and that he would be okay.  Nevertheless his co workers took him to the airport to catch a flight back home.  As he stood at the ticket counter he received a call from a friend that made him aware that the situation was very bad and Jonathan was in a fight for his life.  He made his way as quickly as possible to the gate, feeling desperate to get home to his son

and feeling helpless so far away.  As he finished getting through airport security, Nathan’s phone rang- it was his wife Sara.  He answered quickly, hoping for good news, but there was none.  As he stood in a line of strangers Sara told him that Jonathan was dead.  How does this happen?  Jonathan was at recess at school- he was supposed to be protected.  The answer that Nathan did not know was that his son’s death was a complete and total preventable tragedy.

Jonathan died on a playground that was not only used for his elementary school but also for an after school child care program called the Adventure Club.   Because of that-it  should have been the safest playground at the school.  The Department of Human Services (DHS) has a duty to ensure that any playgrounds that are certified for child care meet certain regulations.  One of the most important regulations requires that any equipment, such as a soccer goal, that needs to be anchored, shall be anchored on the playground.  DHS employed inspectors whose job was to inspect these playgrounds twice a year  to ensure that these rules are followed.

Jonathan died from a home made soccer goal which did not meet any of the regulations set forth by DHS.

According to the police report the goal tipped over backwards for a reason that was never determined.  Jonathan, who was four or five feet away from the back of the goal when it began to tip, tripped as he scrambled to get out of the way of the 500 pound piece of equipment and the top of it struck him in the forehead crushing his small skull and breaking his neck.  He was pronounced dead shortly after arriving at the hospital.   The area in which the goal sat was supposed to have been inspected by the DHS inspector at least twice a year.

As the Nelson family’s devastation changed to anger they wanted to understand how this happened.  They discovered that 36  children had died over the previous decades from tipped goals.  They also discovered  that because of this known danger– DHS had in its own guidelines requirements this goal should have been anchored, by either two sandbags or a five dollar metal anchor, to prevent it from tipping on the children that played around it.  They discovered that if it wasn’t anchored the DHS inspector should have had the goal removed.  And they discovered that the DHS inspector had allegedly inspected this area twice in the three months prior to Jonathan’s death and twice a year for several years before.

And yet despite this goal violating their most basic rules regarding equipment for several years the inspector had done nothing to either anchor it or have it removed- both of which were within her authority.

After working to ensure that a law was placed on the books to require that soccer goals would be anchored on all playgrounds, not only child care playgrounds, during the 2011 legislative session, the family turned to holding DHS responsible.  Because you can not sue DHS, which is a State agency, their only alternative was the State Claims Commission which was established by the Constitution to be the “conscious of the State”.   DHS denied responsibility throughout the process and tried to blame everyone but themselves.

In December of 2012 and February of 2013 a hearing was held in front of the 14 person legislative committee that oversees the claims process.  Multiple witnesses were called by both sides and arguments were heard from both the Nelson family’s attorney and two different attorneys for DHS.  After 30 minutes of deliberation the Committee ruled, without any votes against it, that DHS was liable for the death of Jonathan and the State should pay a claim in the amount of 1 million dollars.

The Nelson family’s vindication and feeling that DHS had been held responsible was short lived.  Despite the committee’s ruling and the family being told that the remaining approval by another committee was a rubber stamp the leadership of DHS, including its director, continued to lobby against this family.  Because there was no

more hearings and it was only a vote, DHS had the upper hand because they could lobby personally with the politicians to prevent this claim from ever being paid.  And they have been successful.  As of March 1, 2013 the claim which was awarded remains in limbo in a committee with no vote being taken to have it paid.  And the Nelsons, who thought they were finally going to have closure, continue to have to fight for their little boy knowing that they will never be able to put his death behind him until DHS is held accountable.  The Nelsons know if DHS is not held accountable there is nothing to ensure that this won’t happen again to another child on another playground.

Here is a link to a news story on the current status:

http://5newsonline.com/2013/03/01/1-million-claim-in-death-of-9-year-old-boy-under-review/