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Pool victims' fathers suing DHR, workers, daycare owner The fathers of two toddlers who almost drowned in a daycare pool near Jackson on March 8 have filed a lawsuit against the Alabama Department of Human Resources (DHR), employees of the agency and the owner of the daycare, charging negligence in allowing the accident to happen. Grove Hill attorney Wyman O. "Gil" Gilmore Jr. filed the civil complaint in Clarke County Circuit Court Wednesday on behalf of Robert Hicks, father of Cole Hicks, and Thomas C. "Chad" Atchison, father of John Thomas Atchison. Both children are 2- years-old. The defendants include DHR and employees Kathy Rager, Debbie Smith Davis, Gloria Higgins, Eric Williamson, Teresa Turner and Peggye Tucker. Tucker is now retired but is a former director of the Clarke County DHR. Nancy Overstreet, owner of Nancy's Day Care in the Stave Creek community near Jackson is also a defendant as are any others unnamed or unknown at this point who may be determined to have had responsibility also, the suit states. No specific monetary damages are requested at this point, only that a jury trial be held so that "such damages as a jury may determine to be appropriate" can be levied. The suit lays out the specifics of the matter, how the youngsters were among several kept by Overstreet at her residence and how they got out of the house "without supervision," climbed over a fence surrounding a swimming pool and fell into the pool. "Both minor children sustained significant physical injuries as a result of near drowning in Nancy's Day Care swimming pool," the complaint states. The suit alleges that DHR and its employees were charged with inspecting and reviewing family day care homes, including Nancy's Day Care to ensure that they met minimum standards and regulations established by DHR. The agency and the employees were negligent in their duties, the suit states. A specific violation was the swimming pool's 37-inch high fence "which was significantly shorter than the minimum four (4) foot height requirement of the Regulations." All of the named DHR employees except Tucker had visited and inspected the daycare facility but failed to take action in regard to the pool and fence, the lawsuit states. Tucker was cited for issuing the license for the day care "when she knew, or should have known" about the fence. As a state agency, DHR is usually immune from suits such as this. The lawsuit says that the DHR employees do not have immunity in the case because they breached their duties in failing to ensure compliance with a state regulation that does not allow for discretionary judgment.
Nancy Overstreet, owner of the daycare, is accused of negligently maintaining the day care property in a safe condition, failing to comply with day care standards and failing to supervise the children property, as well as other negligent acts.
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