They lost the lawsuit
Drowning lawsuit proceeding set
By Tim Hrenchir
Three years ago, Joshua Bryant and Richard Heyroth drowned when their canoe capsized in the Kansas River in Topeka. Last week, a final pretrial conference was scheduled in a wrongful death and survivorship lawsuit that Bryant's father, Jim Bryant, is pursuing against the city of Topeka and the state of Kansas. Shawnee County District Court Judge Larry Hendricks, after initially setting the final pretrial conference for Dec. 17, 2010, issued a court order Aug. 16 rescheduling it for May 24, 2011. Hendricks indicated he planned at the time of the conference to set a jury trial date.
Bryant, 25, and Heyroth, 30, both of Topeka, drowned late Aug. 5, 2007, when the canoe they were in capsized after it went over a spillway at the south end of a low-water weir located just north of the Topeka Water Department's water treatment plant, 3245 N.W. Waterworks Drive. Bryant and Heyroth had been employed at Timberline Steak House and Grill, which has since gone out of business on S.W. Wanamaker. The men had been taking a float trip with Topekans Brandon Colcher and Daniel Wiggs, who both survived.
The Topeka Capital-Journal reported Colcher and Wiggs had been in a raft, though the lawsuit petition said they were in a canoe. The Capital-Journal reported the canoe, the raft and the life preservers of Bryant and Heyroth were recovered the following morning. Court records show that William J. Pauzauskie, an attorney representing Jim Bryant, in February 2009 sent a demand letter to Topeka city clerk Brenda Younger seeking payment from the city of about $1.4 million. That included about $500,000 for pre-death pain and suffering, fright, fear and mental anguish; about $400,000 for wrongful death non-economic losses; about $500,000 for economic losses; and $15,000 for funeral expenses.
After the city chose not to pay, Pauzauskie in July 2009 filed suit against the city and the state on behalf of Jim Bryant, the administrator of his son's estate. The lawsuit petition didn't state a specific amount being sought. That petition said the state of Kansas in 1987 granted the city an easement to build the low-water weir to funnel the river's flow toward the mouth of the water treatment plant in times of low stream flow. It contended the city at the time of the August 2007 drownings was aware it was failing to comply with conditions set forth in a U.S. Army Corps of Engineers permit requiring it to:
* Build a public boat ramp upstream from the weir. The city subsequently put in ramps earlier this year just upstream and downstream from the weir on the north riverbank.
* Provide an adequate portage route. Portage is the practice of carrying watercraft or cargo over land to avoid water obstacles.
* "Place highly visible signs above, below and at the weir, warning of possible hazards associated with boat passage over and through the weir structure during certain river flow states."
The lawsuit contended the city at the time of the drownings — which occurred about 11:10 p.m. — had one warning sign at the location. It said the sign wasn't illuminated and didn't comply with Army Corps of Engineers' conditions. The petition quoted Colcher and Wiggs as saying they saw no warning signs and "had no other warning of the approaching danger of the weir." When Bryant, Heyroth, Wiggs and Colcher arrived at the weir, the petition said, "Both canoes were caught in the fast-flowing water rushing through the low water notch, where both canoes then swiftly overturned, at which time the extreme force and pull of the undertow, all four men were sucked underwater and caught in the circular underwater turbulence."
Tuesday afternoon the Shawnee County Sheriff's Office identified the four men involved in the canoeing accident on the Kansas River. The Sheriff's office says 27 year-old Brandon Colcher, and 25 year-old Daniel Wiggs of Topeka were rescued from the river Sunday night. )n Monday the body of 25 year-old Joshua Bryant was pulled from the river. Tuesday morning the body of 30 year-old Richard Heyroth was found against a barge under the Topeka Boulevard bridge. The body was positively identified as being Heyroth's Wednesday morning using dental records. Tuesday morning, Fire Marshall Greg Bailey confirmed that recovery teams had discovered the body of the second person lost on the Kansas River when two canoes overturned Sunday night.
Search crews looking for two missing canoeists found Bryant's body Monday afternoon in the Kansas River in Topeka. The discovery was made around 3 pm, on the south side of the river, at the east end of the grain elevators. Officials will determine whether the body is that of one of the missing canoeists. Their search began late Sunday night, when emergency responders got a call about an overturned canoe and someone screaming for help near N. Hwy. 75 and Lower Silver Lake Rd. According to police reports, four men were rafting down the Kansas river in two canoes when both overturned. Nearby fisherman were able to rescue two people from the river. Rescue teams called off their initial search just before four o'clock Monday morning before suspending their efforts until daybreak. The search resumed around 6:30 in the morning. Around 10 Monday morning search crews found two life jackets. Respondents from several city and county departments including the Shawnee County Sheriff and Fire, Mission Township Fire, AMR, the City of Topeka Police and helicopter unit and Fire Department as well as the salvation Army.