MOORHEAD, Minn. — Portions of a lawsuit related to a girl’s death in a state park pond will go forward against the city of Moorhead and the state of Minnesota, according to documents filed this week in Clay County District Court.

Grace Bettie, 9, of Moorhead, drowned June 27, 2018 at Buffalo River State Park near Glyndon while taking part in a summer youth program along with approximately 170 other children.

Her mother, Freedom Kerkula, filed a wrongful death claim against the state Department of Natural Resources, which owns the park, and the city of Moorhead and its police department, which operated the youth program.

Both entities asked for the lawsuit to be dismissed based on recreational-use immunity grounds.

In papers filed Feb. 22, the Minnesota Court of Appeals affirmed a district court decision to deny the city’s motion that the case be dismissed.

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The appeals court agreed Moorhead and its police department were not entitled to such immunity.

William Lubov, an attorney in Golden Valley, Minn., who represents Kerkula, said he wasn’t surprised by the ruling.

“They thought they should have some immunity. We didn't believe that was the correct meaning of the law,” Lubov said.

Kenneth Bayliss, an attorney representing the city of Moorhead, said he would not comment on the litigation.

The Court of Appeals also affirmed in part and reversed in part the dismissal of wrongful-death action against the Minnesota DNR.

The Court agreed that the DNR is immune from liability of claims that the DNR and park lifeguards failed to adequately supervise Grace.

However, it said the district court erred in part by dismissing Kerkula’s claims that the DNR did not warn Grace of a concealed, dangerous condition within the pond.

It said the city and DNR were aware of cloudy water and a sudden drop-off hidden from view by the cloudy water, but failed to advise Grace of them.

Harrietta Bettie, aunt and godmother of drowning victim Grace Bettie, gets emotional as she looks over the swimming area at Buffalo River State Park near Glyndon on Monday, July 2, 2018.David Samson / The Forum
Harrietta Bettie, aunt and godmother of drowning victim Grace Bettie, gets emotional as she looks over the swimming area at Buffalo River State Park near Glyndon on Monday, July 2, 2018.David Samson / The Forum

Also, they knew she could not swim, but neither the city nor the DNR afforded Grace any extra level of supervision, the document said.

"There was no way for individuals to even be able to tell where the drop offs were… certainly not for 175 young people taking on the experience of swimming in the pond," Lubov said.

In the Appeals Court decision, the document stated the city arranged for DNR lifeguards to inform kids of the importance of wearing life jackets, but neither city nor DNR furnished lifejackets that day.

“In fact, the municipality advised parents not to provide life jackets to their children,” the document states.

After other children, who saw Bettie struggle in the water that day, notified a lifeguard and a chaperone, lifeguards and other park personnel searched on land for 11 minutes before searching the water. After five minutes of searching in the water, the girl's body was found in the deep end of the pond.

The pond did not reopen to swimmers in 2019, after Buffalo River State Park was unable to hire enough lifeguards to safeguard it.

The appeals court said the allegations in the complaint support an exception to the DNR’s recreational-use immunity, because it failed to warn of a concealed danger.

It also rejected the DNR’s argument that Grace knew of the danger of swimming in the pond because she reported she was a non-swimmer.

Regarding the appeals court decision, the DNR released this statement:

"The Minnesota Department of Natural Resources is reviewing the court’s ruling and we extend our continued sympathies to Grace Bettie’s family," the statement read.

Lubov said each of the defendants has a limited amount of time to request that the Minnesota Supreme Court consider those claims.

Typically, the court requires an alternative dispute resolution such as mediation to resolve a claim. If not, the matter will proceed to trial, he said.