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Day Care Provider Thwarts Wrongful Death Lawsuit in Bankruptcy Court

In Columbus, Nebraska, a former day care provider has filed bankruptcy and successfully put a jury trial in a wrongful death lawsuit against her on hold, possibly forever. The lawsuit was filed by the parents of a 13-month-old boy who died in 2004.

The former day care provider, Marjorie Walnofer, was filing bankruptcy in the U.S. bankruptcy court and notified the Platte County District Court that she has filed the bankruptcy documents. The bankruptcy filing puts an automatic stay on all civil proceedings against her.

A trial by jury was all set to start in district court on October 29th.

A wrongful death lawsuit has been filed against Walnofer by Keli Forney. Forney is the mother and personal representative of the estate of her son Konnar Thomas Perry-Forney. The child died on January 6, 2004.

Forney's wrongful death lawsuit seeks to recover more than $43,000 in medical and funeral expenses and an unspecified amount of punitive damages for Konnar's death.

Konnar, who had been in Walnofer's care, had a seven inch fracture to his skull and died as a result of blunt force trauma to the head.

Forney's attorney in the lawsuit, David Copple of Norfolk, has said today that he is researching if the suit's "theory of recovery" from Walnofer would or would not be barred in a bankruptcy proceeding. Copple is concerned that Walnofer's bankruptcy proceeding could possibly discharge any recovery they might win in the lawsuit. If any judgment that could be won against Walnofer would automatically be discharged in her bankruptcy, it would not be worth going forward with the civil lawsuit against her.

Walnofer is represented by attorney John Turco of Omaha. Her recent bankruptcy court filing seeks to convert a 2003 filing she had made for debt relief from Chapter 13 bankruptcy to a Chapter 7.

With Chapter 7 bankruptcy, cases move through the U.S. bankruptcy court fairly quickly and filers usually receive a discharge in a matter of several months.

A discharge under Chapter 7 bankruptcy would likely wipe out all unsecured debts such as credit card debt, medical bills, most personal loans, judgments resulting from car accidents, deficiencies on repossessed vehicles, some older tax debts, payday loans and garnishments.

In Forney's wrongful death lawsuit, she accuses Walnofer of negligence in supervising and monitoring her son.

She alleges that Walnofer failed to remove, or actually placed or kept the child in a position of danger and failed to provide a safe environment while Konnar was in her care.

The lawsuit also alleges that Walnofer failed to inform Forney, other authorities or medical professionals of the child's injuries, failed to prepare and maintain records and did not obtain a Nebraska Daycare License.

In the lawsuit, Forney states that as a result of Walnofer's negligence, Konnar's next of kin have been deprived of his society, companionship, care, comfort, nurture and support.

The lawsuit argues that "their investment of money, affection, guidance, security and love in the decedent has been destroyed."

On August 1, 2004, Walnofer was found not guilty of child abuse resulting in death by a Platte County District Court jury. She had faced a maximum sentence of life in prison and a minimum of 20 years behind bars if she had been convicted in the criminal trial.

Forney picked up Konnar at Walnofer's day care the day before he died.

He was sleeping when she came to get him, and two hours later she found him unresponsive in his crib. He died the next day from a head injury.

At the criminal trial, doctors who testified for the prosecution said that Konnar's injuries had to have occurred on January 5, 2004. Konnar had been in Walnofer's care on that day from 8 a.m.-5 p.m.

An expert for the defense contradicted the prosecution's witnesses and testified that the head injury that killed Konnar could have happened days earlier. There was no physical evidence linking Walnofer to the crime, and there were no witnesses and she was acquitted of the criminal charges.

It remains to be seen whether or not Forney and Walnofer will face off in court again.

If Walnofer's bankruptcy will discharge any monetary award that Forney may be entitled to as a result of her son's death, there will be absolutely no reason to go through the financial and emotional expense of another trial.

If Walnofer's bankruptcy filing does not protect her from the possible outcome of the wrongful death lawsuit, the case will likely proceed to trial as soon as her bankruptcy is discharged.

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