Minnesota DNR wants Moorhead child drowning lawsuit dismissed
The state agency said it is immune to the lawsuit that claims it is responsible for the death of 9-year-old Grace Bettie. The DNR said the Buffalo River State Park pond where Grace drowned was meant to duplicate nature, and childproofing it would “violate the spirit underlying the preservation of ‘Minnesota’s natural and historical heritage for public understanding and enjoyment.’”
MOORHEAD — The Minnesota Department of Natural Resources wants a judge to dismiss a lawsuit that claims the agency is responsible for the 2018 drowning of a Moorhead girl.
An Aug. 8 jury trial in Freedom Kerkula’s case was canceled after the DNR requested Judge Gail Kulick rule that the agency is immune from liability for the death of Kerkula’s daughter, Grace Bettie. The 9-year-old drowned June 27, 2018, in a crowded swimming pond at Buffalo River State Park near Glyndon during a Moorhead Police Department summer youth program.
A hearing for attorneys to make their arguments on the motion is scheduled for Aug. 16.
Prosecutors in Clay County declined to pursue criminal charges in the case. Kerkula filed the wrongful death lawsuit in August 2019 in Clay County District Court.
The DNR previously argued it had recreational immunity, but the Minnesota Court of Appeals disagreed. The higher court said the agency did not warn Grace of a concealed, dangerous condition within the pond: a sudden drop-off hidden from view by cloudy water.
In a 21-page argument filed in March, the DNR disputed that there was evidence of a “hidden drop-off.” The agency also claimed the pond was not “an artificial condition,” but “duplicated natural conditions.”
The pond where Grace drowned was built in the 1930s and was designed to resemble a “naturally occurring pond,” the DNR said. It was reconstructed in 2001 and 2004 to improve water quality.
The DNR noted it marked deeper areas with buoys and indicated the depths with signage in high-traffic areas.
Immunity bars have “harsh consequences,” but not having that in place would require the state to childproof parks, the DNR said. That 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 warned swimmers about the danger, the agency argued.
On the day Grace died, a park naturalist spoke to the group of nearly 180 children about water safety, the DNR said in court documents.
That talk included telling the children about clay stirring up at the bottom of the pond, pointing out the roped buoys and warning children uncomfortable with deep waters to stay out of the marked deep areas, the filing said.
The park naturalist also asked children who could not swim to raise their hands, which Grace did, the filing said.
“DNR staff repeatedly told the chaperones that they were required to supervise the children,” the filing said.
Minnesota courts have applied immunity in similar cases, the DNR argued.
In his June filing opposing the dismissal of the case, Kerkula’s attorney, Eric Magnuson, called the pond man-made, adding there is ample evidence to show it presented a hidden danger. He also argued the signs did not give the exact locations of the drop-offs or show the correct depths.
He claimed the roped buoys did not mark the drop-off locations. The depths varied and were not properly marked on the buoys, he said.
The park naturalist made contradictory statements about whether she told the children that there were drop-offs in the pond, and she did not say where they were, Magnuson argued in his filing. Children also were distracted when instructions were given, he said.
Staff did not conduct swim tests on the children or mark the kids to show which ones were weak swimmers, he said.
“None of the lifeguards warned Grace that she was approaching the drop-off in the deep area of the pond,” Magnuson wrote.
One child told a lifeguard and a chaperone Grace went under the water, 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 five minutes of searching in the water.
A jury should be allowed to determine if the DNR is entitled to immunity instead of a judge dismissing the case, Magnuson said. A jury also should decide whether the warnings regarding the pond’s dangers were “reasonable and effective,” he said.
The City of Moorhead and the Moorhead Police Department also were defendants in the case, but Kerkula settled with them last year.
The pond has not reopened since 2019, though officials said that was due to an inability to hire enough lifeguards.
Attorney Michael Goodwin, who represents the DNR, and Magnuson did not return phone messages left by The Forum.