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Swenka files cross-claim against CCA

By Lori Lindner
and Chris Umscheid

IOWA CITY– Zachary Lee Swenka of North Liberty has filed a cross claim against the Clear Creek Amana Community School District (CCACSD) as part of the lawsuit brought against him by an Oxford couple.
The parties were involved in a vehicle accident in October 2011, which resulted in a fatality.
Bryan Scott Cooling and Toni Harney Cooling filed suit against Swenka, Lillian M. Olson of Linn County, and the Clear Creek Amana Community School District in October. The lawsuit claims Swenka was driving recklessly and carelessly, drag racing in an exhibition of speed, driving at excessive speed, failed to maintain control of his vehicle and driving improperly on the left half of the road, on Oct. 17, 2011, when Swenka was driving a 1996 Chevy Lumina eastbound on Highway 6 about two miles west of Tiffin. According to state patrol investigative records, Swenka was driving at a high rate of speed through a curve when his tires fell to the shoulder of the road. Swenka overcorrected, causing him to swerve into the lane of oncoming traffic. When Swenka attempted to return to the right side of the road, according to reports, the rear driver’s side of the Lumina was struck by a minivan driven by Bryan Cooling.
Swenka was carrying four passengers at the time, fellow cross-country teammates who had been practicing at F.W. Kent State Park west of Tiffin. Swenka and passengers Daniel Brechtel, Dustin Cox, Chloe Keith and Claire Riggan sustained injuries and were treated at the University of Iowa Hospitals and Clinics (UIHC). Fourteen-year-old passenger Mackenzie Lown was pronounced dead at the scene. The Coolings were also injured and treated at UIHC.
Swenka, represented by attorney Matt Adam, entered an Alford plea to the charge of involuntary manslaughter with Iowa’s Sixth Judicial District Court on Oct. 24, and was sentenced to two years in prison for Lown’s death.
The Cooling’s lawsuit claims Swenka is at fault for injuries they sustained and will continue to sustain due to the collision, and the couple seeks punitive damages.
Olson is named in the lawsuit as the owner of the Chevy Lumina, and alleges she consented to Swenka driving the car and is therefore also responsible.
The charges against CCA state that Swenka was in effect providing transportation services and acting as an employee of the district.
“Swenka was transporting students of defendant CCACSD, including members of the CCA High School cross country team, from a school athletic event or practice,” court documents in the Cooling lawsuit state. “Defendant CCACSD is liable for the torts of defendant Zachary L. Swenka and the damages sustained by the plaintiff.”
The Coolings are demanding a jury trial in the case.
However, attorney James P. Craig filed an answer to the plaintiff’s claims on Nov. 4, denying the claims against Swenka and Olson, and indicating Olson had given ownership of the Lumina to Swenka prior to the accident.
In Swenka’s cross-claim, he states he was providing transportation services for CCA by driving cross country team members back to school from the practice at Kent Park. The cross-claim states CCACSD was therefore negligent on several counts, including: directing Swenka to transport five other student athletes without obtaining parental consent to do so; directing Swenka to transport the students without determining his ability to do so safely because of a health condition; failing to supervise school drivers transporting student athletes at the district’s direction; and failing to provide transportation to students participating in a school-sponsored, off-site cross country practice.
The cross-claim seeks contribution from CCACSD should Swenka be found liable for any injuries and damages to the Coolings.
Last week, attorney for CCACSD, Terry J. Abernathy, filed a response denying any claims against the district.
The district’s transportation policy for extracurricular activities was adopted in 2012 and modeled to mirror that of the Iowa Association of School Boards’; it states, in part, “students participating or attending extracurricular events, other than those held at the school district facilities, may be transported to the extracurricular event by school district transportation vehicles or by another means approved by the superintendent.” The policy also states students who are provided transportation in district vehicles for extracurricular events will ride both to and from the event in school vehicles unless arrangements have been made with the building principal prior to the event.
No formal modifications to the district’s transportation policy has been made since 2012.
Outside of board policy, according to district officials, the district also provides release forms to student athletes and their parents that would allow one student to ride with another to and from an extra-curricular activity with parental consent. Those forms are typically distributed to parents in a pre-season meeting between students, parents and coaches as part of the students’ participation in the extracurricular activity or sport.
Mackenzie Lown’s parents, Michael Lown and Kelly Smith, also filed suit against the school district in June 2012. The district offered a $300,000 settlement to Lown’s family, who accepted the settlement and dropped the case on Oct. 8.
Lown and Smith also filed a civil suit against Swenka in February 2012, but dismissed the suit in June 2012 before filing the replacement suit against the school district.