OR: Near-drowning probe shows no negligence

'It appears to be just a terrible accident'

By Anita Burke
Mail Tribune
October 17, 2008 6:00 AM

http://www.mailtribune.com/apps/pbcs.dll/article?AID=/20081017/NEWS/810170329

An internal investigation by the Southern Oregon Education Service District has concluded employees followed protocol and weren't negligent when a 6-year-old boy wandered away from a special education class at Jacksonville Elementary last week and nearly drowned in an irrigation ditch.

Jacksonville police have completed their investigation, too, and forwarded it to Jackson County District Attorney Mark Huddleston, Chief David Towe said.

"It appears to be just a terrible accident," Towe said.

Luke Baehne, who has autism and attends a life-skills program called STEPS at the school, was found in a Medford Irrigation District ditch at about 1:40 p.m. on Oct. 7 by a school employee who was searching for him after he failed to line up following afternoon recess. He was pulled from the water unconscious and not breathing, but was revived and sent to Doernbecher Children's Hospital in Portland. He is no longer listed on a public roster of patients there and family members were unavailable for comment Thursday.

Southern Oregon Education Service District Superintendent Steve Boyarsky said the internal investigation the district completed has been forwarded to PACE, a property and casualty insurance pool for educational institutions. Claims consultants and attorneys for the insurance provider will do an investigation of their own and have advised the district not to release details, he said.

The district had not received formal notification of intent to sue Thursday morning, but Luke's father, Phillip Baehne, previously said the family had met with an attorney.

The Medford School District is doing its own internal review of the incident, too, and is consulting with the ESD and other investigators, Superintendent Phil Long said.

Towe said his investigation couldn't conclusively determine when or how Luke fell in the water.

"I don't feel like we will ever know where he went in," Towe said.

The irrigation ditch runs through an underground culvert adjacent to the school grounds and resurfaces next to North Fifth Street near the city limits. Luke was found in that roadside portion of the ditch and that's likely where he fell in, Towe said.

Towe said employees at the school had seen Luke on the playground with other children just minutes before the bell rang at 1:20 p.m. to summon pupils back to class. When the students lined up to go inside, teachers noticed Luke was missing and started searching for him.

Gail Durst, a teacher's aide, suspected the boy might have gone to look at fish in a water feature in front of businesses on North Fifth Street, a few blocks from school. She found him floating in the ditch and held his head up, but couldn't pull him out of the water onto the steeply sloped banks by herself. She called 9-1-1.

Towe said he interviewed employees at a gas station, dental office and eye care center near the ditch, but no one had noticed the little boy wandering outside. He said Luke reportedly didn't talk much before the accident, so investigators don't expect to be able to interview him for details.

The Jacksonville police report will be released to the public after the district attorney reviews it, Towe said.

Reach reporter Anita Burke at 776-4485, or e-mail aburke@mailtribune.com.