Who’s Responsible for Katie Janeway?

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With more suits before the bar than spectators sitting in Judge Thomas Anderle’s courtroom on April 8, representatives for both the City of Santa Barbara and for the family of Katie Janeway hemmed and hawed through a pretrial hearing, readying the wrongful death civil case for trial next week. Though the trial — which seeks to assign blame in the case of a 14-year-old disabled child who died in Los Baños del Mar public pool during a 2002 city-run summer camp — is just a week away, the two sides continue to talk of a settlement. Nonetheless, jury selection is scheduled to begin April 14, and attorneys have set aside nearly four weeks for the trial. Attorneys for the Janeways whittled their witness list down to 34 for the hearing, including Mayor Marty Blum, city staff, and Janeway’s parents, Terrell and Maureen. But in an unusual scenario, Anderle excluded seven witnesses and may exclude two more because plaintiffs’ attorney Roland Wrinkle apparently didn’t disclose the witnesses in response to a written request from the defense.

Based on the city’s attorneys’ planned course of defense, the trial promises to be contentious, as one of the two main defenses will attempt to cast some blame on Janeway’s parents. Irvine-based insurance defense attorney James Baratta, hired on behalf of the city, indicated that the city plans to argue comparative fault, meaning the victim or the parents should bear some responsibility for the incident. Should this argument find traction with the jury, it would reduce any monetary damages against the city. Baratta’s second line of defense comes in light of a decision made in this case last year by the California Supreme Court, which ruled that written waivers cover negligence, but not gross negligence, regardless of the wording of the waiver. Gross negligence, as defined by the high court, is “either a want of even scant care or an extreme departure from the ordinary standard of conduct.” Because of the Supreme Court decision, they can no longer argue the “assumption of risk” was taken by the Janeways when the mother signed the city’s waiver, and instead the defense will argue a secondary “assumption of risk,” which, in general terms, means that risks undertaken in participating in certain activities are implied and apparent.

Janeway, who suffered from cerebral palsy, epilepsy, and other disabilities, was swimming at Los Baños as part of Adventure Camp, a program for children with developmental problems, which she attended from 1999 to 2002. The day she drowned, Janeway went swimming about an hour after having a seizure. Janeway’s camp counselor said in a deposition she had looked away from the pool for about 15 seconds. When she looked back, she couldn’t locate the girl. Five minutes later, after the counselor had jumped into the pool to search and it had been evacuated, Janeway was found at the bottom. She died the next day.

Sitting in the front row observing the hearing were Oded Gottesman and Matthew Clarke, an attorney with Cappello & Noel, the firm representing Gottesman in a wrongful death suit against the Cathedral Oaks Athletic Club. Gottesman’s four-year-old son Yoni drowned in the Cathedral Oaks pool in 2005. The two cases are similar, Clarke explained, when asked why he was sitting in on the hearing. He expects the judge to follow comparable rationale in the Janeway case as he did in the Gottesman case, which is currently waiting on the state Court of Appeal to rule on a defense motion to disqualify Cappello & Noel from the case because of a relationship between Cappello and athletic club owner Richard Berti.

At the end of the Janeway hearing Tuesday, Anderle issued a gag order on the involved lawyers because of recent news articles on the case, so none could comment on it.

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