Parents sue school district for fault in daughter's death

The parents of a 14-year-old Clear Creek Amana High School student killed in a car accident in October have filed a new lawsuit against the school district after the first lawsuit they filed in February against the teenage driver involved in the collision was dismissed earlier this month.

Michael Lown and Kelly Smith, parents of Mackenzie Lown, are suing the Clear Creek Amana Community School District for, among other things, violating their own policy by failing to provide safe transportation for cross-country students to and from practice, according to the lawsuit filed Thursday in Johnson County District Court.

The lawsuit states that, at the time of the accident, Mackenzie Lown and Zachary Swenka, then 18, were members of the Clear Creek Amana cross country team, which periodically held practices at Kent Park, outside Tiffin.

Even though district policy required “transportation of a student for student purposes to be in a district-owned vehicle driven by a school bus driver,” the district didn't provide school-issued transportation for the cross country team's commute between Clear Creek Amana High School and Kent Park, according to the lawsuit.

Instead, the district used older student team members with driver's licenses to provide rides in their personal vehicles to younger students without licenses, according to the lawsuit. In fact, the lawsuit states, the district “requested, encouraged, relied on or allowed older students with driver's licenses and vehicles to provide transportation to younger students” headed to off-site locations.

In fall 2011, for example, the district on its website made the following request, according to the lawsuit. “Upper classmen: please make sure freshmen and sophomores have a ride to off-site locations.”

The district, during that period of time, also had a policy regarding the use of private vehicles to transport students. It stated that people only were allowed to transport students for school purposes in private vehicles when “parents of the students to be transported have given written permission to the superintendent,” according to the lawsuit.

Michael Lown and Smith allege in the suit that the district didn't request or obtain their permission for their daughter to ride with Swenka or any other team member to and from cross country practice.

Still, on Oct. 17 after a cross country practice at Kent Park, Swenka took five other team members – including freshmen member Mackenzie Lown – in his 1996 Chevrolet Lumina from Kent Park toward the high school, according to the lawsuit.

He was traveling at an “extremely high rate of speed while traveling an ‘S' curve and crossing a bridge,” according to the couple's earlier lawsuit against Swenka. They estimate the teen was going 100 mph in a 55 mph zone when he veered to the right and then swerved back left, crossing the center line and colliding with an oncoming minivan, according to the original lawsuit.

The left rear portion of Swenka's car was torn off, and Lown was ejected and suffered fatal injuries, according to the lawsuits.

Michael Lown and Smith are suing the school district for fault, claiming it failed to provide and assure safe transportation for their daughter, used Swenka to provide transportation without ensuring it was safe and without getting parental permission and failed to supervise the teens during practice.

The district also is liable, according to the lawsuit, because by allowing Swenka to drive cross country team members to and from practice, it was allowing Swenka to act an employee. An employee is defined as someone who provides services for the district with our without compensation, according to the lawsuit.

The parents are demanding a jury trial for their losses, including pain and suffering, loss of estate accumulation by virtue of her early death, and interest and funeral and burial expenses.

The couple's original lawsuit named Swenka, now 19, as a defendant. It accused him of operating his vehicle recklessly, driving at an excessive speed and failing to maintain control.

The lawsuit was dismissed June 1, according to court records. Swenka doesn't face criminal charges in connection with the crash.

Iowa State Patrol troopers said all of the teenagers in Swenka's car at the time of the crash were hurt. Chloe Keith, 14, Dustin Cox, 14, Daniel Brechtel, 15 and Swenka were taken to the University of Iowa Hospitals and Clinics by ambulance.

Claire Riggan, 14, was airlifted to the hospital, according to troopers.

The two people in the minivan – Bryan Scott Cooling, 47, and Toni Harney Cooling, 42, both of Oxford – also were injured and hospitalized. The current conditions of those who were injured is unknown.

At least a dozen Clear Creek Amana High School students witnessed the crash. Lown's high school peers created a Facebook page honoring the teen. Friends continue to post remembrances to that page, and Michael Lown is backing an effort to change the state law regarding the number of passengers a teenage driver can have in a car at one time.