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Thread: Toddler drowns, woman jailed

  1. #1
    Friend of Gossip Rocks! buttmunch's Avatar
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    Default Toddler drowns, woman jailed

    Wednesday, October 05, 2005

    By Paula Reed Ward, Pittsburgh Post-Gazette



    Standing along the bank of a rain-swollen creek, Susan Newkirk watched as the 2-year-old boy tumbled in and was swept away.

    She couldn't swim. Instead of diving into the raging waters after her friend's son, she yelled to his father for help.

    The little boy died.

    Certainly, her defense attorney argued during her trial for endangering the welfare of a child, his client had a moral obligation to try to save the boy. But, he continued, she did not have a legal one.

    The jurors judging Ms. Newkirk's case obviously disagreed when they convicted her in July. Last week, the Hollidaysburg woman was sentenced to up to 18 months in jail.

    But legal experts disagree with the verdict.

    Instead, they say Ms. Newkirk did not have a "duty of care" to the little boy because she had no special relationship with him.

    Her public defender, David Beyer, has vowed to appeal her conviction, arguing that she was not the child's parent or baby sitter, and therefore had no duty to protect him.

    On Sept. 18, 2004 -- the day after Hurricane Ivan brought torrential downpours across Western Pennsylvania -- Ms. Newkirk, 41, joined her friend, Thomas E. Reffner, and his 2-year-old son, Hunter Delasko, to do repairs to a trailer in Claysburg, Blair County.

    While Mr. Reffner worked on the trailer, Ms. Newkirk walked along South Poplar Run Creek.

    She told police that Hunter had been with her and almost fell in. At that point, Ms. Newkirk took the boy back to his father, telling Mr. Reffner that Hunter should not be by the water.

    A short time later, the toddler rejoined Ms. Newkirk.

    "The little boy walked down to her," Mr. Beyer said.

    As he was throwing sticks and stones into the water, Hunter fell in.

    "She had no legal duty to go in and save this child," Mr. Beyer said. "If a person is not a parent or guardian, then they owe no duty to that child."

    But Blair County District Attorney Dave Gorman said she was, at that moment, the child's guardian.

    "Common sense dictates someone in that close proximity to a child is obligated to do something," Mr. Gorman said. "I think anybody in their right mind would jump in."

    Both the defense and prosecution agree that Mr. Reffner never specifically asked Ms. Newkirk to watch his son. But the district attorney doesn't think that matters.

    "If she didn't believe she had a legal duty, then why did she pull the kid back the first time?" Mr. Gorman asked.

    Had Ms. Newkirk left the trailer after returning Hunter to his father, she would have fulfilled her obligation, and there would have been no charges, the prosecutor said.

    "It's not just the fact she didn't go in after the kid," Mr. Gorman said. Even having a child that close to a raging stream violates a duty to care, he continued.

    As for Ms. Newkirk's argument that she couldn't swim, Mr. Gorman didn't think it was relevant. Two passers-by went into the creek to try to save Hunter after he'd fallen in, and one of them also couldn't swim. One man was able to reach Hunter, but the boy slipped from his grasp before he could pull him to safety, Mr. Gorman said.

    David Herring, a professor of child welfare law at the University of Pittsburgh, said there is no Good Samaritan law in Pennsylvania.

    "You can't ask them to have to sacrifice their own lives," Mr. Herring said. "That's quite a stretch to impose that duty on her."

    He called the case against Ms. Newkirk an "aggressive prosecution."

    "The father's the one the law should be holding responsible," he said.

    Mr. Reffner was charged, but he pleaded guilty to a lesser charge -- reckless endangerment. He was offered probation to testify against Ms. Newkirk. The prosecution, however, never called Mr. Reffner to the stand. Mr. Gorman said his testimony wasn't necessary.

    As for the plea agreement, the district attorney said he wasn't sure a jury would have convicted him.

    "I'm not saying in any way, shape or form Mr. Reffner isn't culpable," the prosecutor said. "I think there was an issue as to whether a jury would have returned a guilty verdict on [him]."

    But Kirk Henderson, an assistant public defender for Allegheny County, said that's not a valid justification for the lesser charge.

    "A parent has the ultimate responsibility," he said.

    Under the current case law, charging Ms. Newkirk should have come down to whether she was aware of the duty to the child, Mr. Henderson said. He didn't buy the district attorney's argument that Ms. Newkirk recognized her duty when she returned Hunter to his father the first time.

    "I don't think that one time, telling a child what to do invests that person with responsibility," Mr. Henderson said.

    "People have their own choices they have to live with, but that doesn't make it criminal."

    Mr. Beyer agrees.

    "The jury wanted someone to pay for this little boy," he said. "I can understand from a moral perspective, we all think something different should have happened here. That doesn't mean she's guilty of a crime."
    I can't quite get my head around this one. I mean, she couldn't swim so should she have basically killed herself so that she didn't go to jail?
    'Those who sacrifice liberty for security deserve neither.' Ben Franklin

    "When fascism comes to America, it will be wrapped in the flag and carrying the cross."
    --Sinclair Lewis

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    Hit By Ban Bus! DisruptiveHair's Avatar
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    I wonder how one would prove that they couldn't swim.

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    Elite Member muchlove's Avatar
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    I have a problem with this, too. She wasn't even the mother or anything, and they're blaming her for not drowning herself to save a kid she has no attachment to? But the father isn't in as much trouble as she is? That makes no sense.

    I can't swim... I can't even float, and I freak when I'm in deep water, so if I'd been in her position, I'd just be screwed.

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    Hit By Ban Bus! WickedHo's Avatar
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    The entire stupid jury can kiss my ass. It's the father's responsibility to ensure the welfare of his child. The first time Ms. Newkirk brought the boy back, he should have stayed there with his father. AND SHE SHOULD NOT BE RESPONSIBLE FOR SAVING THIS BOY'S LIFE!! She was NOT the primary care-giver, AND SHE COULDN'T FUCKING SWIM!! I'm sure her obituary would be in the papers by now if she had jumped into the water.

    Stupid fucking jury. This is why people generally suck.

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    Friend of Gossip Rocks! buttmunch's Avatar
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    I think if she knew how to swim, as a human being she should have jumped in and saved the kid. I mean, that's just human responsibility. But given the fact that she couldn't swim, it's stupid to blame her. Is she supposed to kill herself?

    And as far as finding out whether she really could or not, I guess it would be a matter of tossing her in the deep end and seeing what happened. But I can't imagine that she would ignore a drowning child if she realy could swim.
    'Those who sacrifice liberty for security deserve neither.' Ben Franklin

    "When fascism comes to America, it will be wrapped in the flag and carrying the cross."
    --Sinclair Lewis

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    Elite Member LynnieD's Avatar
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    Quote Originally Posted by Killjoy View Post
    I agree w/ everyone so far. When did we as a society start blaming everyone but ourselves when horrible things happen? If the dad would have watched his kid or asked his friend to stay w/ the kid but not around the water none of this would have occurred.
    If I'm too stupid to look both ways before crossing the street can I blame the people standing with me that didn't cross when I get hit by a car? Should people push me out of the way or jump in front of the car to save me? See this is so obvious that everyone says well, duh you were stupid and nobody would die trying to save you. It's the same w/ the kid. Sure she could have jumped in but then two people would be dead instead of one.
    When did we start blaming everyone else by ourselves when horrible things happen??? It's called TRIAL/PLAINTIFF attorneys exploiting the smallest of issues and loopholes in the laws and an extreme shift in political correctness.
    That's really really frightening.....in essence, any of us could be sitting at a restaurant and someone could start choking and dies, and we could be held responsible for their death even though we don't know the hiemlick (sp?).
    Anyone remember the last episode of 'Seinfeld'?? The reason they all went to jail was because of the 'good samartian' law...Is there such a thing for real??
    If there isn't, this seems to look an awful lot like it.
    Don't agree w/this at all....

  7. #7
    Elite Member muchlove's Avatar
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    Yes, there really is such a thing as a Good Samaritan law. They don't have it everywhere, though.

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    Elite Member muchlove's Avatar
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    Actually, the bf just told me that he doesn't think the it's the same in the US as it was on the Seinfeld episode... they were poking fun at a foreign law. The good samaritan law we have here seems to be to mostly protect a rescuer in case they make a mistake, they can't be blamed (like if you hurt someone while performing the heimlich).

    "a person is not obligated by law to do first aid in most states, not unless it's part of a job description obviously. Some states will consider it an act of negligence though, if we don't at least call for help. Beyond this, assisting is optional and voluntary, partly due to preserving the rescuer's own health in the process." http://pa.essortment.com/goodsamaritanl_redg.htm

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    Elite Member LynnieD's Avatar
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    Quote Originally Posted by muchlove View Post
    Actually, the bf just told me that he doesn't think the it's the same in the US as it was on the Seinfeld episode... they were poking fun at a foreign law. The good samaritan law we have here seems to be to mostly protect a rescuer in case they make a mistake, they can't be blamed (like if you hurt someone while performing the heimlich).

    "a person is not obligated by law to do first aid in most states, not unless it's part of a job description obviously. Some states will consider it an act of negligence though, if we don't at least call for help. Beyond this, assisting is optional and voluntary, partly due to preserving the rescuer's own health in the process." http://pa.essortment.com/goodsamaritanl_redg.htm
    Damn girl you are quick with that stuff!! Thanks for the legal briefing!

    My issue is, how far will this kind of thing be taken??? Where's the line?
    I think this is over the line personally, and could just be used in such a way that would truly suck for the next unlucky people that will be arrested...

    Sad....we're going backwards.....this is not advancement....

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