Family of Caleb Schwab receives nearly $20 million in Verrückt settlements

May 04--The family of Caleb Schwab will receive nearly $20 million in settlement payments from the companies involved in the 10-year-old boy's death on the Verrückt water slide at Schlitterbahn in Kansas City, Kan., last year, The Star has learned from court documents.

It's believed to be the largest settlement of its kind paid in a wrongful death case involving a minor in either Kansas or Missouri.

"I would be shocked if there was a bigger one than that," said Roger Nail, a Kansas City trial attorney.

All told, the settlement amounts total $19,732,125 to the Schwab family. The breakdown among the four parties is as follows:

? $14 million from SVV 1 and KC Water Park, two companies associated with Texas-based water park company Schlitterbahn.

? $5 million from Henry & Sons Construction, the general contractor on the 17-story ride that broke records for the height of a water slide.

? $500,000 from Zebec of North America, which manufactured the raft that carried up to three riders down the slide.

? $232,125 from National Aquatics Safety Co. and its founder, John Hunsucker, which consulted on Verrückt.

The Schwabs and Michael Rader and Todd Scharnhorst, attorneys who represented the family, declined to comment.

The Star previously reported that the Schwab family had reached settlements with the companies involved with Verrückt in January and again in April. The settlement amounts at those times had not been disclosed, even though Johnson County District Court Judge Thomas Sutherland had reviewed documents describing the terms during a court hearing.

The Star obtained the court documents after filing motions to intervene in the two cases. The Star argued in its filings that the amounts paid by each defendant should be released to ensure those responsible for Caleb's death were held publicly accountable.

Caleb Schwab went to Schlitterbahn with his family on Aug. 7, a day when the water park allowed elected officials and their families in without charging admission. Caleb's father is Scott Schwab, a Kansas House member from Olathe.

Caleb was riding Verrückt with two women when he died of what police described as a fatal neck wound. The Kansas attorney general's office continues to evaluate an investigation of that day's events, but it's believed that Caleb's raft went airborne and that he came into contact with a netting system placed above the slide that was propped up by metal poles.

After Caleb's death, others who had taken a ride on Verrückt told The Star that their rafts had also gone airborne; others reported problems with a hook-and-loop strap that was meant to keep riders secured to the raft. Experts contacted by The Star expressed misgivings about the nature of the ride, saying it put too much risk on riders.

Caleb's ride was the last on Verrückt, which had been the subject of much hype and attention before and after it opened in 2014. The two women who took the ride with Caleb suffered serious facial injuries. They have settled their claims against the companies involved in the making of Verrückt.

According to their attorney, Lynn Johnson, the two women had insisted on Schlitterbahn agreeing to tear down Verrückt before entertaining any settlements. The terms of the settlements with Matraca Baetz and Hannah Barnes are confidential.

Schlitterbahn agreed to decommission Verrückt once a court allows it, although it remains unclear when that will happen.

"The Schwab family and all those impacted by the accident will forever be in our thoughts and prayers, and our deepest condolences are with the family," said Schlitterbahn spokeswoman Winter Prosapio in an email to The Star. "We are thankful to have reached a settlement with all parties. We will be removing the ride from our Kansas City park when given permission by the court, which we have yet to receive."

An attorney for Zebec confirmed the settlement amount for his client and did not provide further comment.

Hunsucker, the owner of Dickinson, Texas-based National Aquatics Safety Co., referred questions to his insurance company when reached by phone Wednesday.

"All of this was handled by my insurance company," he said.

Hunsucker would not disclose the identity of his insurer.

"I don't think I need to share that with you," he said. "It's not my policy to comment on this."

The amount of the settlements paid to the Schwabs is remarkable, Kansas City attorneys said, because Kansas has some of the most restrictive laws in the country when it comes to damages that can be recovered in wrongful death cases.

Under most scenarios, non-economic damages like pain and suffering are limited to $250,000. And, based on precedent set by a 1993 Kansas Supreme Court case, punitive damages are not allowed in wrongful death cases.

One tactic in Kansas wrongful death cases is to also pursue a personal injury claim if a jury could be persuaded that someone who had been killed had fear or apprehension of their death. That may have been difficult to prove in the Verrückt case, and in any event, those damages are limited to $300,000.

Aside from those caps under Kansas law, establishing economic damages in the death of a child is difficult. Unlike an adult victim in a wrongful death case, it's difficult to establish future lost wages from a child.

"Something that's often challenged is the economic loss," said Todd Johnson, a Kansas City trial attorney. "It's often hard to project out the future economic loss, like earning capacity, the money they would bring in over the course of a lifetime."

One option in litigation for Kansans involved in wrongful death cases is what's referred to as "choice of law," which is to say laws in other states could be applied to proceedings in a wrongful death case that happened in Kansas. In the Verrückt case, because Schlitterbahn is based in Texas, there would be a possibility that Texas law would govern the case. Texas laws are less restrictive than those in Kansas.

According to The Star's research, the largest reported settlement in a wrongful death case involving a minor in Kansas was $700,000. That came from a 1993 case involving a 13-year-old who was shot to death by police officers. In Missouri, a $7.1 million settlement was reached in a Jackson County case involving an 18-year-old who died in a highway accident with a tractor trailer that was driving too fast in rainy conditions. A 2007 St. Louis case that was settled for $3 million involved a 3-month-old born prematurely who died when an oxygen concentrator mixed with baby oil and led to a fatal fire.

Jeffrey Reiff, a Philadelphia attorney who has handled cases involving death or injuries from amusement park rides, called the settlement amounts "a fair result."

"You can't put a value on a human life," Reiff said. "Under the circumstances, it's a fair result."

Caleb's death and the subsequent investigations revealed the lax regulations that governed amusement park rides at the time of the Verrückt incident. The Unified Government of Wyandotte County and Kansas City, Kan., had no regulations on the safety of amusement park rides, nor were they required to under Kansas law (although Kansas law left room for municipalities to enact their own regulations so long as they did not conflict with state law).

Kansas regulated amusement park rides through the Kansas Department of Labor. The department had not inspected Verrückt since it opened in 2014.

During its current session, the Kansas Legislature approved tighter regulations of amusement park rides. In a speech before his colleagues, Scott Schwab called it a "good measure."

"I love every one of you and thank you for everything you've done for our family, but this bill is really not about Caleb," Schwab said in March on the floor of the Kansas House. "It's for the next kid who goes some place in Kansas for a fun weekend."

Steve Vockrodt: 816-234-4277, @st_vockrodt

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