Experts disagree with jury verdict against woman in boy's drowning

Wednesday, October 05, 2005

By Paula Reed Ward, Pittsburgh Post-Gazette

Standing along the bank of a rain-swollen creek, Susan Newkirk
watched as the 2-year-old boy tumbled in and was swept away.

She couldn't swim. Instead of diving into the raging waters
after her friend's son, she yelled to his father for help.

The little boy died.

Certainly, her defense attorney argued during her trial for
endangering the welfare of a child, his client had a moral
obligation to try to save the boy. But, he continued, she
did not have a legal one.

The jurors judging Ms. Newkirk's case obviously disagreed
when they convicted her in July. Last week, the Hollidaysburg
woman was sentenced to up to 18 months in jail.

But legal experts disagree with the verdict.

Instead, they say Ms. Newkirk did not have a "duty of care"
to the little boy because she had no special relationship with him.

Her public defender, David Beyer, has vowed to appeal her
conviction, arguing that she was not the child's parent or
baby sitter, and therefore had no duty to protect him.

On Sept. 18, 2004 -- the day after Hurricane Ivan brought
torrential downpours across Western Pennsylvania -- Ms.
Newkirk, 41, joined her friend, Thomas E. Reffner, and his
2-year-old son, Hunter Delasko, to do repairs to a trailer
in Claysburg, Blair County.

While Mr. Reffner worked on the trailer, Ms. Newkirk walked
along South Poplar Run Creek.

She told police that Hunter had been with her and almost fell
in. At that point, Ms. Newkirk took the boy back to his father,
telling Mr. Reffner that Hunter should not be by the water.

A short time later, the toddler rejoined Ms. Newkirk.

"The little boy walked down to her," Mr. Beyer said.

As he was throwing sticks and stones into the water, Hunter fell in.

"She had no legal duty to go in and save this child," Mr. Beyer
said. "If a person is not a parent or guardian, then they owe
no duty to that child."

But Blair County District Attorney Dave Gorman said she was,
at that moment, the child's guardian.

"Common sense dictates someone in that close proximity to a
child is obligated to do something," Mr. Gorman said. "I think
anybody in their right mind would jump in."

Both the defense and prosecution agree that Mr. Reffner never
specifically asked Ms. Newkirk to watch his son. But the
district attorney doesn't think that matters.

"If she didn't believe she had a legal duty, then why did she
pull the kid back the first time?" Mr. Gorman asked.

Had Ms. Newkirk left the trailer after returning Hunter to his
father, she would have fulfilled her obligation, and there
would have been no charges, the prosecutor said.

"It's not just the fact she didn't go in after the kid," Mr.
Gorman said. Even having a child that close to a raging stream
violates a duty to care, he continued.

As for Ms. Newkirk's argument that she couldn't swim, Mr.
Gorman didn't think it was relevant. Two passers-by went into
the creek to try to save Hunter after he'd fallen in, and one
of them also couldn't swim. One man was able to reach Hunter,
but the boy slipped from his grasp before he could pull him
to safety, Mr. Gorman said.

David Herring, a professor of child welfare law at the
University of Pittsburgh, said there is no Good Samaritan
law in Pennsylvania.

"You can't ask them to have to sacrifice their own lives," Mr.
Herring said. "That's quite a stretch to impose that duty on her."

He called the case against Ms. Newkirk an "aggressive prosecution."

"The father's the one the law should be holding responsible,"
he said.

Mr. Reffner was charged, but he pleaded guilty to a lesser
charge -- reckless endangerment. He was offered probation
to testify against Ms. Newkirk. The prosecution, however,
never called Mr. Reffner to the stand. Mr. Gorman said his
testimony wasn't necessary.

As for the plea agreement, the district attorney said he
wasn't sure a jury would have convicted him.

"I'm not saying in any way, shape or form Mr. Reffner isn't
culpable," the prosecutor said. "I think there was an issue
as to whether a jury would have returned a guilty verdict on [him]."

But Kirk Henderson, an assistant public defender for Allegheny
County, said that's not a valid justification for the lesser
charge.

"A parent has the ultimate responsibility," he said.

Under the current case law, charging Ms. Newkirk should have
come down to whether she was aware of the duty to the child, Mr.
Henderson said. He didn't buy the district attorney's argument
that Ms. Newkirk recognized her duty when she returned Hunter
to his father the first time.

"I don't think that one time, telling a child what to do
invests that person with responsibility," Mr. Henderson said.

"People have their own choices they have to live with, but
that doesn't make it criminal."

Mr. Beyer agrees.

"The jury wanted someone to pay for this little boy," he said.
"I can understand from a moral perspective, we all think
something different should have happened here. That doesn't
mean she's guilty of a crime."


(Paula Reed Ward can be reached at or
412-263-1601.)
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