http://www.naplesnews.com/news/2012/jan ... sh-driver/Lawsuit filed over fatal 'Swamp boys' crash; driver had 18 tickets, suspended license By AISLING SWIFT
Posted January 3, 2012 at 10:05 p.m.
Johnson Atilard
The parents of a Gulf Coast High School student killed during an at-risk youth outing last month are suing the driver's estate and his employer, alleging they let him drive teens despite knowing his bad driving record.
José L. and Anita Huerta of Bonita Springs are suing the estate of Johnson Atilard, 25, of Cape Coral, and Big Cypress Wilderness Institute Inc. over the crash in Ochopee that killed their 17-year-old son, Daniel, as he and six other teens returned on Dec. 11 from a flag football game in Daytona Beach.
The lawsuit, filed Friday in Collier Circuit Court, alleges Atilard's employer, a state Department of Juvenile Justice contractor, knew of his past driving and criminal history, that his license was suspended and warned him in a February 2011 memo that he was not fit to operate company vehicles for the AMIkids' Big Cypress program in Ochopee, Collier County.
Collier and Lee county court records show Atilard had been ticketed 18 times since 2006, including five times for speeding, once for driving on the wrong side of the road, driving an unsafe vehicle and leaving the scene of a crash.
"Here you have a guy who lied about his driving record and who provided alcohol to kids," said the Huertas' attorney, Stephen Schwed of Palm Beach Gardens. "He looks like an accident waiting to happen. ... And you're not going to fire him after he lied on his job application?"
" ... He was driving like a lunatic," said Schwed, co-counsel on the lawsuit with Howard Kanner of Delray Beach. "The family of another kid said they were telling him to slow down."
Atilard was returning the seven teens to AMIkids Big Cypress center, a wilderness institute for at-risk youth known as "Swamp Kids," and lost control while negotiating a nearly 90-degree turn on Wagon Wheel Road, about three miles west of Turner River Road. The 2003 Ford Expedition hit a traffic sign and flipped into a canal at about 10 p.m., killing him and Huerta and causing minor injuries to the six others.
Records show, Atilard's license had been suspended six times and that night, his license had been suspended three months.
His record also includes providing alcohol to a minor, a misdemeanor charge that ended in a no-contest plea, but didn't end in conviction due to a deferred prosecution agreement. And in the months after his July 2010 hiring, records show, he racked up nine tickets, including four for speeding, failure to obey a traffic control device, a red light running violation and improper right turn.
The president of Big Cypress Wilderness Institute, Scott Hennells, was out of town and couldn't be reached for comment, but the vice president, Jim Meerpohl, said the institute is a local board for AMIkids that provides local input and insight into what would benefit the kids and community.
He referred questions to AMIkids, but called the crash a tragedy the board would discuss at its meeting next week.
"It's a horrible curve," Meerpohl said. "It's dicey during the day, let alone at night."
Shawna Vercher, a spokeswoman for AMIkids, which provides 50 programs in nine states, said they can't comment on pending litigation. However, she said an internal investigation is continuing and as a result, AMIkids Big Cypress has a new director and will soon announce a new director of operations.
"Recognizing the tragic nature of the loss sustained by the Huerta family, we hope that an amicable resolution can be reached with the family," Vercher said.
Atilard's relatives couldn't be reached for comment.
The lawsuit cites Atilard's history of driving infractions and his misdemeanor arrest and no-contest plea for providing alcohol to minors.
"Despite actual and/or constructive knowledge of all of these facts, Cypress entrusted the lives of seven boys to Atilard for a drive covering hundreds of miles in each direction on a single day," the lawsuit says, alleging that Cypress' negligent entrustment caused Huerta's death.
The lawsuit also seeks damages for the negligence of Atilard, contends Cypress is vicariously liable for his negligence because it employed him, and was negligent for hiring and retaining him.
"Cypress became aware that Atilard had falsified his application for employment regarding his past traffic and criminal history," the lawsuit alleges.
The lawsuit seeks damages for medical and funeral expenses, pain and suffering and mental pain and suffering for the Huertas.
"The liability issues rise to the level of recklessness and carelessness that result in punitive damages," Schwed said of punitive damages, which often result in hefty jury awards and are meant to punish and deter wrongdoing by sending a message.
AMIkids' insurance policy is $11 million, he said, and a settlement conference is expected soon.
"I already know the circumstances," he said of liability, adding that he's looking into who authorized the trip and knew Atilard was driving. "This is a nightmare for an employer. I just think it's pathetic that they would hire this guy. ... I'm sure there are a lot of people embarrassed by this and the firings aren't over."
He doubted this was Atilard's first drive since the February memo.
Huerta enrolled in the wilderness program when he was deemed a juvenile delinquent after a school fight, Schwed said. Heurta was scheduled to complete the program on Dec. 23 and had spoken to military recruiters, Schwed said.
"He was going to come home for Christmas and tell his parents as a Christmas present that he was going to join the Marines," Schwed said. "He was a success story and they killed him."
A Florida Highway Patrol crash report, which shows Huerta sitting behind Atilard, says air bags didn't deploy, but Atilard and Huerta wore seat belts, as did four others.
The report says Atilard was driving in a careless or negligent manner and was speeding, at least 45 mph in a 30-mph zone before veering left onto a grassy shoulder. The SUV hit a traffic sign and overturned into the canal, where troopers found it partially submerged.
"His parents want to know 'How did this happen? Did he die peacefully?' " Schwed said, adding that they were told he drowned.
They learned of the crash after a friend called at 2 a.m., he said, adding that AMIkids paid for the funeral, but didn't speak to them or send flowers.
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