Judge finds no fault by school district in child’s tragic pool accident
The Santa Monica-Malibu Unified School District recently settled out of a $25 million lawsuit that accused the district of being partly to blame for an accident that paralyzed a student.
Even though Santa Monica Superior Court Judge Richard Neidorf late last month found the school district was not at fault because the accident occurred at a graduation party that was held on private property, attorneys for the school district still agreed to pay $85,000 to be released from the lawsuit.
At the party, 12-year-old David Cueva was injured while playing in James B. Upchurch’s Georgina Avenue swimming pool during a graduation party held last June.
According to the lawsuit’s complaint, Cueva suffered severe brain damage, neurological defects, injury to his vision, hearing and balance. He was rendered a quad-riplegic.
There were several adults and up to 30 children present when the accident happened, according to court records. The children had gathered for Karaoke in the guest house when a parent went to get an item outside and noticed something at the bottom of the pool. Upchurch jumped in and pulled Cueva out, said an attorney involved in the case.
Cueva’s family is suing for $2 million in medical bills and $23 million in pain and suffering, emotional distress, loss of quality of life, and past, present and future medical and hospital related expenses.
The lawsuit now targets Upchurch and other adults at the party.
Mark A. Gottesman, who had just dropped his daughter off at the pool party, will appear in court on April 8 to convince Judge Neidorf to release him from the lawsuit.
“We do not feel he was involved,” said Gottesman’s attorney, Tim Walker, “and now they are trying to bring his wife into the case as well and she wasn’t even there.”
The school settlement clears the district from any future claims stemming from the incident.
“We didn’t have to pay anything because the court agreed with us that we had no liability,” said John W. Allen, a school district attorney. “That settlement was reached simply to buy our peace, but the district had absolutely no liability.”
Jay Willinger, Cueva’s attorney, said it is against his company’s policy to talk to the press about pending litigation. He had no comment on the school district’s settlement.
Calls to the student’s father, Andres Cueva, a Santa Monica resident who works as a janitor at Crossroads School, were not returned.
The school district was originally named in the lawsuit because teachers at Roosevelt Elementary School passed out invitations to students advertising the party. And according to court records, at least one teacher was present at the party.
“Basically, there are various immunities provided in the government code,” Allen said. “The school had nothing to do with the party, therefore they are not at fault.”
Paul V. Ash, an attorney for Upchurch, also declined to comment on the settlement and requests for an interview with Upchurch were not returned.
Upchurch had counter-sued the school district, but Judge Neidorf dismissed it when the school district was cleared of all wrong doing late last month.
Originally published in the Santa Monica Daily Press print edition on March 23, 2003. Read the original PDF.