A Toddler Falls Into a Creek And Drowns While a Woman Watches. Is She Responsible?

Here’s a link to the full story. About a year ago, a day after major flooding in my area, a woman, Susan Newkirk was helping a friend of hers, Thomas Reffner, make some repairs to a trailer near a creek. Mr. Reffner had his two year old son, Hunter Delasko, with him. At one point while she was walking along the creek, the little boy appeared and nearly fell in. She took him back to his father and told his father he needed to keep a closer eye on the boy. She went back to the creek and some time later, the little boy came back. This time, he did fall in. She yelled for Mr. Reffner, but didn’t jump in after the boy because the water was high and she couldn’t swim. Ms. Newkirk has been convicted by a jury for “endangering the welfare of a child.” The prosecution’s argument was, in part, that she assumed responsibility for the child when she took him back to his father the first time and that she should have endangered her life to save his. According to the local paper, legal experts are disagreeing with this verdict. I’m wondering what you make of it.

It doesn’t seem right to me. I haven’t read anything that indicates Mr. Reffner brought Ms. Newkirk along to babysit his child. I’ve also seen creeks around here after a major storm. It’s not advisable for non-swimmers to jump into them after a major storm, although two other people, one of whom couldn’t swim did jump into the creek to save the child. The father did plead guilty to a lesser charge, reckless endangerment.

What are the ramifications of this? If I tell one of the kids at my church “Don’t run into traffic” and they do so and get hit, have I assumed responsibility for the child by doing that, and am I responsible for his or her death? Also, my feminist streak insists I ask would the expectations have been different if Ms. Newkirk had been a man? I honestly don’t know and I’m looking forward to reading your opinions.


Expectations? Yeah, the hypothetical Mr Newkirk would have been expected to jump in whether he could swim or not, and improvise as necessary. You also say:

Any data on the sex of the people, including the one who couldn’t swim, who jumped in? How’d they manage to survive?

This seems a little ridiculous to me. The father or in this case, the female friend is expected BY LAW accomplish absolutely nothing, except perhaps get herself killed, and certainly make things worse for any rescuers by jumping in the river after the boy?

Where is the logic in this? If she can’t swim, she can’t swim, she’s going to drown, and she’s certainly not going to be of nay help to the kid.

Retarded is what that is.

Methinks there must be more to this story than the article tells us. I simply can’t imagine a jury returning an unanimous verdict of guilty with the facts presented.

Many times when you hear these “outrageous verdict” stories, there’s more to the story than the media presents, because they want a sensational article.

Sorry, folks. All I’ve got is the one linked article which was buried in the middle of the local section. If I come across more, or if anyone else has more information, I’d be interested in seeing it. If I can, I’ll search the paper’s archives at lunch.


There is no legal expectation to render aid.
Unless a caretaker relationship (such as a parent-child or doctor-patient relationship) exists prior to the illness or injury, or the "Good Samaritan " is responsible for the existence of the illness or injury, no person is required to give aid of any sort to a victim.
IMHO expecting a non-swimmer to jump into the “raging waters of a rain-swollen creek” is equivalent to expecting a paraplegic to jump into a swimming pool.

Given these facts I can’t believe that this won’t be overturned on appeal.

Crikey, that reeks of injustice; is it not actually possible to perform an act without assuming it as a duty?

What Crows said. The Common Law imposes no requirement to give aid. I am unaware of any specific law that in this case would point the other way.

To me, the crucial thing is:

So she did the best she could, which was to try to sdummon someone else to help. She did not just stand by and watch the kid drown.

(A long time ago, I was at a friend’s house, with lots of other people standing around a swimming pool, chatting, drinking, etc. Then I saw my two-year-old daughter at the bottom of the pool. As I was fully dressed, and I’m not a good swimmer, I yelled for someone else to pull her out – they did, and she was saved. Now, clearly I did have a duty to look after my daughter (I no longer do, since she’s an adult): would that jury have convicted me of reckless endangerment ofr the like, since in a similar case I did no more than Ms Newkirk did, though I had a greater responsibility to the child?)

Is it possible that during deliberation the jury decided that Ms. Newkirk knew that the boy would follow her (or was following her around) and that she was aware that by going near the river that the boy would follow her?

If you are aware that a child is following you and you cross a busy street, what is your responsibility?

And there’s this "San Marcos man hindered emergency workers’ ability to assess situation, authorities say. "

In view of two other people, one of whom also couldn’t swim, going in after the child, I don’t know that she did the best she could.

Your pool example is not quite the same thing. There you had help almost literally within arm’s reach and the certainty of communicating the emergency in seconds. Mind you, I’m puzzled by “not a good swimmer” as meaning you could not keep yourself and two-year-old afloat for the time it would take to haul her to the poolside.

I would think this would be overturned on appeal.

I agree with Lissa that there is probably more to the story. The pertinent side of this was that an adult (who could not swim) allowed a child to play near swift moving water. There is some negligence involved with that aspect of it. Although she wasn’t directly responsible for the child she had established a bond of trust/interaction with the child. The article didn’t specify the depth or speed of the water so it’s impossible to say if it was practical for her to attempt a rescue attempt beyond seeking the help of others.

It wouldn’t surprise me if this was overturned.

Why wouldn’t the Judge overturn it and “set aside” the jury verdict if it was such an obvious miscarriage of justice?

From the article–

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.

The father knew the child was liable to fall in the creek and drown. How in the world did he let him out of his sight? Her duty, if indeed she had one, was discharged when she informed the father the first time. What if she had caught the child playing with matches, told the father, and later the house burned down? Once you are aware that your child is a danger to himself it is up to you to protect him.

IANAL but having done expert witness work for over 23 years, I believe that an appeal cannot change a verdict no matter how unfair it may be…From what I understand an appeal deals strictly with the legality of issues…

An appeals court cannot overturn a decision made by a judge or jury no matter how unfair the decision was if proper legal rules and laws were followed.

i would like to hear from an atty as to the veracity of my statement.

Damned if you do, damned if you don’t. Sheesh.

Apparently, she was the girlfriend (live-in?) of the boy’s father.

Another article.

::reads the link::

So she was nailed, not for failing to jump in after the kid, but for not keeping him away from the water?