Janeway case to proceed to trial

BY ERIC LINDBERG
DAILY SOUND STAFF WRITER

A lawsuit against the city of Santa Barbara involving the drowning death of 14-year-old Katie Janeway in 2002 during a city summer camp for developmentally disabled children will go to trial after a California Supreme Court ruling yesterday.
The state's highest court agreed with lower courts that a waiver signed by Janeway's mother covered ordinary negligence but not gross negligence, denying the city's appeal contending that the release covered all forms of liability and requesting that the case be dismissed.

“It’s a victory for the Janeways,” Roland Wrinkle, attorney for the Janeway family, told the Daily Sound. “It’s a victory for anybody whose loved one was injured through someone else’s gross negligence.”
Santa Barbara City Attorney Stephen Wiley said although city officials are disappointed the court didn’t dismiss the case, they are confident moving forward in the trial, which will take place in Santa Barbara County Superior Court.
“They made it clear that the release is valid unless the Janeways’ attorney can prove there was gross negligence,” Wiley said, adding that he doesn’t believe that to be the case. “There was a lot of supervision and a lot of care at the camp and given to Katie. ... We’re very confident that they can’t prove that there was any gross negligence.”
Gross negligence is defined as failure to use even the slightest amount of care in a way that shows recklessness or willful disregard for the safety of others.
Janeway, who suffered from cerebral palsy, epilepsy and other disabilities, drowned while swimming at the Los Banos Pool in Santa Barbara as part of the city's Adventure Camp for children with developmental disabilities, which she had participated in since 1999, according to court documents.
Janeway's parents, Terrall and Maureen, filed a wrongful death suit against the city alleging their daughter’s death resulted from negligence on the part of the city and the camp counselor assigned to watch Janeway, Veronica Malong.
In July 2002, Katie Janeway participated without incident in the first of two swimming days at the Los Banos Pool in Santa Barbara as part of the first week of the summer camp, according to court documents. On the second day, Janeway dove into the water, came to the surface and began swimming to the edge of the pool.
Malong, a college student and former special education aide who had been assigned to keep Janeway under close observation during the swimming sessions, momentarily turned away, court documents state, and when she looked back, she was no longer in her sight. Five minutes later, lifeguards pulled Janeway from the bottom of the pool. She died the next day.
Roland Wrinkle said he is confident that these facts, which he said are “largely undisputed,” will prove the city is responsible for Janeway’s death.
“If you take those facts, I think it cries out for a ruling of gross negligence,” Wrinkle said.
According to court documents, 300 other children used the pool at the same time as the Adventure Camp participants. Also, earlier that morning on the day she died, Janeway suffered a mild seizure that lasted a few moments, and Malong sent another counselor to report the incident to her supervisor.
The supervisor told authorities that the report was never received, court documents stated. After 45 minutes, with no word from her supervisor, Malong decided it was safe for Janeway to swim.
In 2001, Janeway also suffered a seizure on the pool deck and at a skating rink while taking part in the summer camp. However, according to court documents, Janeway’s mother never sought to prevent or restrict her daughter’s participation in the swimming sessions, describing her as a “good swimmer,” but warned camp organizers that Katie was prone to epileptic seizures that often occurred in water.
Malong, who had previously witnessed Janeway have seizures while working as a special education aide at her middle school, received training from the city on handling seizures and other first aid matters, court documents stated.
Santa Barbara Mayor Marty Blum told the Daily Sound she is familiar with the case and is comfortable with the court’s decision to deny the appeal.
“I think we hoped that the filing of those [release] slips would not cause any lawsuits, but I can see where the Supreme Court is coming from,” Mayor Blum said. “...If the Janeways’ attorney can prove that we were grossly negligent, then that’s really bad.”
Mayor Blum went on to say that if the court rules in favor of the Janeways, city officials will examine city recreation programs and make any necessary changes to make them safer.
After Janeway’s parents filed a wrongful death lawsuit, the city made a motion for summary judgment in April 2004 based on the argument that the release signed by Janeway’s mother covered all forms of liability, including negligence. The Superior Court denied the motion, concluding that there was a triable issue of fact as to whether the city and Malong acted with gross negligence not covered by the waiver.
The city contested that decision in an appellate court, which also denied the motion in March 2006. A month later, the California Supreme Court agreed to review the case after a further appeal by the city, ultimately agreeing with the lower courts.
Wrinkle said he is glad the appeal process is over and is looking forward to trying the case.
“All avenues for getting the case dismissed have been exhausted,” Wrinkle said. “...We’re ready to try the case right now. We’ve been ready since the motion for summary judgment.”
City Attorney Wiley said the Janeways initially filed a $200 million suit against the city and Malong, but that amount is no longer included. Wrinkle said in personal injury and wrongful death suits, specific damages are not requested, and the jury will ultimately decide the dollar amount awarded, if at all.
The case will go through the standard pretrial procedures, Wiley said, adding that the actual trial is still “months away.”