CHEYENNE — A 2020 lawsuit over the injury of a child at Meadowlark Elementary School was officially dismissed by Judge Peter Froelicher through a 30-page order filed Wednesday in Laramie County District Court.
The lawsuit was originally filed against Laramie County School District 1 and playground equipment companies by Scott and Heather Hunter after their 11-year-old daughter suffered fractured spinal vertebrae on the Meadowlark playground in January 2018.
The suit alleged that the use of a playground feature and the negligence of LCSD1 caused the injury.
The girl, identified in court documents as L.H. Hunter, allegedly played on the Rocks and Ropes equipment. When playing on the structure, kids can shuffle across a bottom rope while holding a top rope to get from rock to rock.
The plaintiffs claimed that L.H. was standing on the lower rope when another unidentified child landed or jumped on the rope, causing L.H.’s injury to her thoracic vertebrae, the middle section of the spine.
L.H. was given some pain medication by the school nurse and diagnosed three weeks later, according to court documents.
Scott and Heather Hunter filed their complaint on Jan. 23, 2020, amending it in June 2022. The plaintiffs filed a complaint of strict product liability, breach of warranties and negligence against California-based Universal Precast Concrete and UPC Parks, Iowa-based Miracle Recreation Equipment Company, Colorado-based Churchich Recreation Equipment and a complaint of negligence against LCSD1. On Sept. 28, 2022, the court granted summary judgment to UPC, Miracle and Churchich, leaving only a remaining claim of negligence against LCSD1 to be resolved.
After several discovery delays, deadline extensions and six scheduling orders for a trial date, the trial was set to take place July 15 of this year.
The trial didn’t proceed past opening statements before the defense asked for a mistrial, which Judge Froelicher granted, allowing the defense 14 days to file a written motion and the plaintiffs 14 days to respond.
When Frederick J. Harrison, legal counsel for the Hunters, delivered his opening statement, Judge Froelicher determined his conduct was “not in good faith” and “poisoned the jury.” This was his reasoning for granting the mistrial on July 15.
Froelicher dismissed this case with prejudice, meaning the case is permanently dismissed and cannot be brought back to court.
“Plaintiffs’ counsel willfully failed to prosecute this matter, repeatedly violated the rules of civil procedure and discovery rules, repeatedly violated the Court’s clear orders, and violated Rule 801, U.R.D.C,” Froelicher wrote in the conclusion of his Order Following Mistrial and Order of Dismissal. “Plaintiffs voluntarily chose their attorney and are bound by the conduct of their attorney. Although dismissal is an extreme sanction, the Court finds and concludes it is appropriate in this case.”
Rule 801 requires counsel to act in good faith and reasonably cooperate with opposing counsel. According to Cornell Law Schools Legal Information Institute, “Rule 801 defines what is and what is not hearsay for the purpose of admitting a prior statement as substantive evidence.”
Though the case was dismissed with prejudice, Harrison told the Wyoming Tribune Eagle on Thursday that he and the family are “considering all options.”
“I am constrained by the code of ethics as to what I can say,” Harrison told the WTE. “I respectfully disagree with the judge on the record, the facts and the law. There are much more appropriate actions the judge could have taken than dismissal of a seriously injured and innocent young girl’s case. Further public safety is better served by holding the school district accountable.”
The WTE could not reach representation for LCSD1, Sean W. Scoggin and Ryan J. Schwartz of William, Porter, Day & Neville, PC, for comment.
LCSD1’s request for attorney’s fees and costs was also denied.
Reasons for dismissal
In his written order, Froelicher gave several examples, alleging that Harrison willfully was not complying with the court.
Froelicher referenced the four-year series of delayed discovery, filing of evidence and continued granted extensions that led up to July’s trial, writing that Harrison had failed to comply with the rules of civil procedure several times throughout the proceedings.
Both the defense and the plaintiffs made requests impacting the timeliness of this trial, and some delays were due to COVID-19 and scheduling conflicts, according to court documents.
In his dismissal, Froelicher referenced the voir dire, which is the preliminary examination of a witness or juror by counsel.
According to Froelicher, the majority of Harrison’s voir dire was “an improper attempt to argue Plaintiffs’ contentions and precondition jurors to the Plaintiff’s position, which is that Defendant’s failure to supervise its playground caused L.H.’s injury.”
Froelicher alleged in his dismissal that Harrison asked potential jurors whether and why it is important to have safety rules for supervising children. According to the court, Harrison responded to one juror by congratulating and thanking them for agreeing that properly supervised dangerous activities can be done safely.
During opening statements, Froelicher removed the jury from the courtroom to speak with Harrison and the defendant’s counsel. It was during this discussion that the court and Harrison disagreed on whether Harrison’s opening statement was reasonable, according to court documents.
Froelicher told Harrison that he would give him one more chance in front of the jury as long as he only presented facts and was not argumentative, according to court documents.
“You have flagrantly ignored what I have told you not to do,” Froelicher said in court July 15. “I’ve asked you to make an opening statement, and what you’re making is a closing argument. You’re routinely playing to the passions of the jury and suggesting that somehow this case is important because someone else might get injured. You’re violating the Court’s orders. And you’re doing it, even though I just told you not to. What’s going on, Mr. Harrison? What’s your explanation?”
Harrison responded with, “My explanation is that this is a very reasonable opening statement. It is presenting the evidence to the jury. The court is interfering and preventing me from presenting the evidence to the jury and telling the jury what we are going to prove at trial.”
The opening statement is not for presenting evidence to the jury, Froelicher said, according to court documents.
This interaction, alongside several other reasons listed in the Order Following Mistrial and Order of Dismissal, led to the dismissal of the case.
According to the initial lawsuit, no playground supervisors were present and able to prevent the incident, and no adults saw the incident occur. If adults were present, they didn’t help L.H. or report the incident.
When L.H. went to the school nurse and was given ibuprofen, the nurse made no record of her visit, nor did the nurse contact L.H.’s parents to inform them of their child’s pain and medication administration.
According to the original lawsuit, L.H.’s parents were not aware of her injury, and three weeks after the incident, they took her to a doctor to address her complaints of a sore back. X-rays showed the crushed vertebrae, which put her at risk of paralysis.
Because the case was dismissed, LCSD1 was unable to present its case, and the district’s level of responsibility for the injury of L.H., if any, was not determined.
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