IOWA CITY– The Clear Creek Amana Community School District (CCA) has been named as the defendant in a lawsuit filed by the parents of Mackenzie Lown, who died in October, 2011, in a car accident near the school. Lown’s parents, Michael Lown and Kelly Smith, filed the suit on Thursday, June 21, in Johnson County District Court.
Lown and Smith allege the district failed to ensure their daughter had safe transportation from cross country practice back to the high school; failed to provide transportation in a district-owned vehicle with a district employee driving; enlisted the services of a fellow student, Zachary Swenka, to provide transportation in his private vehicle without obtaining their permission; failed to adequately supervise Lown during a cross country team practice session; and failed to “exercise the care for Mackenzie Lown while she was in the care, custody and control of CCA, that a parent would exercise under comparable circumstances.”
Lown was a freshman and a member of the CCA cross country team. Following a practice session at Kent Park on Oct. 17, 2011, Lown got into a 1996 Chevrolet Lumina driven by senior Zachary Swenka. As they traveled eastbound back to the high school in Tiffin, Swenka partially dropped off the roadway to the right, swerved across the centerline, then swerved back into his lane but not before an oncoming van struck the left rear of the vehicle. Lown was seated in the left rear portion of the car, which was torn away from the vehicle due to the impact. Lown was pronounced dead at the scene. The five other students in the car and two people in the van were all injured and transported to the University of Iowa Hospitals and Clinics in varying conditions from serious to minor.
Michael Lown and Smith filed suit in February against Swenka for reckless operation of a motor vehicle, driving at excessive speed and failing to maintain control, resulting in the death of their daughter. The suit alleged Swenka was driving at “an estimated speed of approximately 100 miles per hour” at the time of the accident. No charges against Swenka have been filed either by the Johnson County Sheriff’s Department or the Iowa State Patrol.
County Attorney Janet Lyness received the final technical investigation report from the State Patrol in mid-June. Lyness would not comment if charges were pending when asked on June 20, but said she would be reviewing the report.
Lown and Smith dismissed the suit against Swenka on Friday, June 1. Lillian Olson, the owner of the car Swenka was driving at the time, was also named in the suit and dismissal. The suit was dismissed “with prejudice,” meaning Lown and Smith cannot re-file the same suit at a later date.
In the suit against CCA, Lown and Smith cite district policy 904.1 “Transporting Students in Private Vehicles” which states in part:
“Generally, transporting students for school purposes is done in a vehicle owned by the school district and driven by a school bus driver. Students may be transported in private vehicles for school purposes. It is within the discretion of the superintendent to determine when this is appropriate.” The policy states individuals transporting students must have the superintendent’s permission and provide proof of insurance. In addition, parents of students to be transported must have provided written permission to the superintendent. Lown and Smith claim they did not provide written permission for their daughter.
However, the district’s policy also states, “The school district assumes no responsibility for those students who have not received the approval of the superintendent and who ride in private vehicles for school purposes.” The policy was initially approved in August of 1995, reviewed in February, 2004, and revised in May, 2011.
Lown and Smith claim “CCA generally requested, encouraged, relied on or allowed older students with driver’s licenses and vehicles to provide transportation to younger students by driving them to off-site locations.” In particular, the plaintiffs note that in the fall of 2011, the school district’s website included a post that said, “Upper Classmen: please make sure Freshmen and Sophomores have a ride to off-site locations.” No such statement exists on the current cross country team page or the homepage for CCA athletics.
Since CCA utilized Swenka to drive, the plaintiffs contend Swenka was acting as an employee of the district per Iowa Code 670.2, and the district is therefore liable for negligent conduct of its uncompensated employee, making the district responsible for Lown’s death.
A jury trial has been requested. The suit does not give the amount of money being sought from the district other than “an amount that will fully and fairly compensate plaintiffs for their damages, together with interest and costs of this action.”
CCA Superintendent Denise Schares was unable to comment on the suit but issued the following statement: “We continue to mourn the loss of Mackenzie and to work together as a school community to support the students and the families involved in the accident.”