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Originally published Sunday, October 5, 2008 at 12:00 AM

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Pierce County jury awards millions over day-care death

A Pierce County jury has awarded $11.7 million to the parents of a 2-year-old boy who wandered away from a state-licensed day care and drowned in Lake Tapps in 2004.

TACOMA — A Pierce County jury has awarded $11.7 million to the parents of a 2-year-old boy who wandered away from a state-licensed day care and drowned in Lake Tapps in 2004.

Jurors made the award Friday to the parents and the estate of Gabriel Tobin, the family's lawyer, Tacoma attorney Ben Barcus, told The News Tribune.

The jury deliberated for less than two days after a three-week trial, in which the family argued that the day care should not have been licensed because it didn't have a fence to prevent children from reaching the lake.

Gabriel made his way out of the front door of the Bonney Lake day care on July 13, 2004, crossed a public street, and walked through a yard to the water. Searchers found his body under a dock nearly two hours later.

Day-care operator Lisa Fish was breaking up an altercation between some of the other children at the facility at the time, according to court records.

The child's parents sued the state and several employees of the Department of Social and Health Services (DSHS) in October 2006, alleging gross negligence.

The Tobins claimed in their lawsuit that DSHS rules required a fence, and that the agency's inspectors twice issued the facility a license even though it didn't have one. Such conduct constituted "deliberate indifference" and was "beyond the pale of human decency," the Tobins contended.

The state argued that DSHS rules did not require the front yard to be fenced, only an outdoor play area in the back yard.

That area was properly fenced, according to documents filed in the case by assistant attorney general Peter Helmberger.

Jurors found the state responsible for 81 percent of the judgment and the Fish family responsible for 19 percent.

Barcus said his clients were vindicated.

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