A Wrongful Death Lawsuit Delivers Justice for Grieving Family

A $250,000 judgment  awarded to a woman  in a wrongful death lawsuit relating to her baby’s death at a Topeka, Kansas daycare is being hailed for delivering a measure of justice that the criminal justice system failed to provide. The suit may also bring pressure for criminal charges to be brought in connection with the tragic case.

Mother-uses-civil-court-after-infants-death-mishandledIn 2013, Misty Durham brought her infant son, Caleb Stewart, to his daycare center, operated by Tara Johnson. According to a possibly incomplete police report, Johnson left the center after laying Caleb on a deeply-cushioned surface, rather than a crib. Her friend, Destiny McClusky, was placed in charge. At some point, McClusky realized Caleb wasn’t breathing, and contacted Johnson. Johnson returned with her boyfriend Russell Morris, called 911 and attempted CPR, according to the report. Caleb could not be revived, and was pronounced dead at Stormont Vail Hospital.

Johnson, McClusky, and Morris were named in the wrongful death lawsuit, and the Shawnee County District Court awarded Durham $250,000 — the maximum amount allowed. All three of the named defendants are ordered to pay Durham this amount.

Caleb’s mother has said that the lawsuit was her last resort in a frustrating process that resulted in no criminal charges brought against the three individuals. She alleges that the investigating officer, detective Erin Thompson of the Shawnee County Sheriff’s Office, failed to competently investigate the case. Even more troubling — Thompson may have actually falsified information in her incident report.

The Kansas Bureau of Investigation is currently looking into incidents in which Thompson may have falsified affidavits and mishandled investigations. Durham believes the investigation into Caleb’s death is one of those cases.

In cases such as these, a civil suit brings the only measure of justice currently available to Misty Durham. It is hoped that the police investigation may one day be re-opened and result in criminal charges — largely as a result of Durham’s successful civil suit. For now, Durham can find some measure of peace knowing that the day care operator and her friends have been found responsible for Caleb’s death in the civil court system.