The family of a 10-year-old Libertyville boy killed last summer while tubing on Petite Lake is suing the Fox Waterway Agency, accusing it of not implementing boat safety rules on the Chain O' Lakes.
Family members of Tony Borcia in Libertyville are seeking more than $250,000 in damages from the Fox Lake-based agency, saying it did not establish boating speed limits, restrict the size of boats allowed on the waterway, or establish areas where people can safely tube and water-ski as other waterways do, attorney Matthew Dudley of Libertyville said Tuesday.
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It amends an existing wrongful death lawsuit in the case and adds the Fox Waterway Agency because it was tasked by state lawmakers to help prevent tragedies like the one that killed Tony Borcia on July 28, 2012, Dudley said.
"The Fox Waterway Agency is tasked to keep the lakes safe," he said. "If Petite Lake is so dangerous, and the Fox Waterway Agency knows this, then they should declare the lake off-limits to tubing."
Attempts to reach Fox Waterway Executive Director Ron Barker and Chairman Wayne Blake for comment were unsuccessful Tuesday.
The agency was added to the existing wrongful death lawsuit filed by the Borcia family against David Hatyina, 51, of Bartlett, and his girlfriend Renee Melbourne.
Hatyina was sentenced to 10 years in prison earlier this year after pleading guilty to being intoxicated with cocaine in his system while driving his 29-foot Baja watercraft nicknamed "Purple Haze" when he struck Tony Borcia on Petite Lake, killing him.
Melbourne was not charged after the crash but was named in the wrongful death suit because, the lawsuit contends, she was a passenger in the boat with Hatyina when the crash took place, helped pay for the boat, and allowed Hatyina to operate the boat while intoxicated.
Under the initial lawsuit, Margaret Borcia and each member of the family who witnessed the crash are seeking more than $50,000 from Hatyina and another $50,000 from Melbourne.
Under the amended lawsuit, each family member is also seeking $50,000 from the Fox Waterway Agency and $50,000 from Spring Lake Marina in Antioch.
Dudley said the marina was added because it rented the boat to Tony Borcia's father, Jim Borcia, and told him it was safe to tube on Petite Lake.
"(The Fox Waterway) knew this wasn't an appropriate place to tube," Dudley said. "Had (Jim Borcia) known ahead of time this wasn't an appropriate place to take his family tubing, he wouldn't have gone there."
A separate lawsuit was also filed against the Fox Waterway Agency to force the state-funded agency to adopt and pay to enforce rules for safe boating, sailing, canoeing and water skiing on the Chain O' Lakes.
That lawsuit was filed by the Y-Not Project Ltd., a not-for-profit corporation created by the Borcia family in honor of Tony and dedicated to stopping intoxicated boat drivers.
The corporation filed the writ of mandamus that, if enacted, forces the agency to adopt reasonable and necessary rules to "allow for safe boating" and other recreational uses on the Chain.
If enacted, the writ would also force the Fox Waterway Agency to budget reasonable funds to enforce safe boating rules and enter into intergovernmental agreements with sheriff's offices in Lake and McHenry counties for marine patrol services.
The suit states the agency has not paid sheriff's offices in those counties for marine patrol services since 2011, despite having agreements with those offices to patrol the waterways.
The two sides are expected to meet in court Wednesday to discuss the lawsuits, which were filed in Lake County court July 26.