News 2 I-Team: Family of toddler opens up about drowning at James Island County Park

It’s been nearly a year since a three-year-old boy drowned at James Island County Park.   The family of Duffy McLemore filed a lawsuit against the park and Charleston County Tuesday in hopes a court battle will force the park to make changes to protect other children.

As law enforcement responded to help with the search, Bonnie and Steven held out hopeful he would be found alive.

“Everything is hard,” Steven McLemore, Duffy McLemore’s father, told News 2. “It’s hard waking up because he won’t be there.”

The family says a simple fence and gate would make them feel better about the proximity of the spray pad and pond where Duffy died.  There are no visible changes around the pond to prevent this tragedy from ever happening again.

According to police reports, Duffy’s family was packing up to leave the park on Saturday, May 14, 2016  just before 5:00 p.m.  When Bonnie Eagle, Duffy’s mother,  says she took her eyes off her three-year-old son briefly,  he disappeared.

As law enforcement responded to help with the search, Bonnie and Steven held out hopeful he would be found alive.

“They asked me if we wanted to eat,”  Eagle remembered. “I order his favorite meal from McDonalds. Five minutes later they told me he was gone.”

The blond haired little boy loved trains, his sisters, and the color blue. He was the baby Eagle prayed for.

“I’m stuck,” Eagle said, barley keeping her composure.  “He’s the thing I wanted my whole life.”

“My son was definitely tricked,” McLemore said.

His parents say Duffy didn’t have a chance of surviving the pond waters.

“My son was definitely tricked,” McLemore said. “It looked like grass. It didn’t look like water. If I was three, I would think I was just running into grass.”

One explanation for the growth in the pond, seen in pictures taken by the family,  is the park isn’t required to submit a maintenance plan to the  Department of Health and Environmental Control.  According to a spokesman with DHEC, the ponds at the James Island County Park were dug in the 1980’s.  The state didn’t require maintenance plans until 1993.  Ponds built before the regulations don’t have to meet current standards.

Since 1993 DHEC has required a construction permit from the Department. These permit applications are required to have a description of a maintenance program for storm water management practices. As part of this maintenance plan, the owner/operator of the pond is required to conduct preventive maintenance to ensure proper functioning of the pond. Plans also must include checking the condition of vegetation, spillways, embankments, outlet channels, and sediment load.

When the I-Team visited the park, the water was cleaned up, but there is no fence and no gate on the dock.

“The park doesn’t have to worry about making changes. They are protected by the state and its machine,” the family’s attorney, John Harrell, told News 2.

Harrell says his only option to force change is the 13 page lawsuit filed Tuesday, in which he called the pond “an attractive nuisance.”

“It’s a condition on real property the child perceives as safe when it’s not safe,” Harrell explained.

And Harrell says the government, who runs the park, has an obligation to compensate the family for their loss because they failed to maintain the pond. At the time of Duffy's death the pond was overgrown and covered in algae, the suit states.

“We pay taxes that pay for this Insurance Reserve Fund,” he explained. “But when Duffy dies because of an attractive nuisance at the county park and the parents bring the claim, they don’t even respond to them. They blow them off.”

The I-Team requested maintenance logs of the pond, but haven’t received anything from the park.

The I-Team reached out to the park six times for comment and to respond to allegations made by the family and their attorney.

James Island County Park wouldn’t respond to specific questions about the family’s claims or measures being taken to protect other children, but sent News 2 the following statement:

“On behalf of the Charleston County Park and Recreation Commission, we continue to extend our deepest sympathies to the McLemore family for their loss.  We remain committed to making all of our facilities as safe as possible for the enjoyment of our many patrons, and will continue to follow and exceed industry standards for safety at each of our parks and facilities.”

The I-Team requested maintenance logs of the pond, but haven’t received anything from the park.  DHEC has no such records.   A spokesman DHEC wouldn’t exercise any oversight of the pond unless there was a complaint. When News 2 called, there had been no complaints.

The state and its entities are protected by what’s called the Tort Claims Act.  The law protects the state from massive payouts should cases move into jury trials or judgments.   There are caps on claims filed against the state, but the family of Duffy told News 2 they aren’t interested in a big check.  They hope filing the lawsuit will force the park to make changes to protect other children who play there.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s