TWIN FALLS -- On one wall hangs a photograph of a smiling and happy 3-year-old Janessa Horner -- her hazel eyes beaming.

On another wall are Janessa's crayon sketches: Hockey, the family cat; her father; a brightly colored garden.

Below the sketches on the floor is Janessa's bed -- pink sheets folded in place.

The unchanged room is a contrast to a family that changed forever four months ago, and a remembrance of a girl who will forever remain a jubilant 3-year-old in her parents' eyes.

On May 28, Janessa Horner suffered massive head injuries when a load of countertops fell from a forklift at The Home Depot in Twin Falls, hitting the ground and breaking into splinters. A countertop hit Janessa and knocked her down. She then fell, hitting her head against the cement floor.

Hours later, and only a few days before Janessa's fourth birthday, she was brain dead. She was pronounced dead on May 29.

The accident that killed Janessa Horner thrust her young parents into a wrenching process of talking to attorneys and expert witnesses. They are considering a settlement from -- or a civil lawsuit against -- a retail giant that reported $2.3 billion in net earnings in fiscal year 1999.

Four months later, the Horners are finally speaking about their loss, and their future.

Images and investigations

Janessa's mother, Julie Horner, vividly remembers that Sunday afternoon at The Home Depot.

"I can still hear the countertops hitting the ground. I can still hear them breaking into pieces. I can still hear Janessa running towards me," Julie Horner, 25, recalled, tying to hold back tears. As she described the accident, Julie Horner's 2-year-old daughter, Hannah, toddled to her mother's side and asked, in a quiet, concerned voice, "Mama?" as if sensing the pain in her mother's tone.

Janessa's death haunts Julie Horner and her husband Virgil, 24, who spoke with The Times-News last week in an interview from their Twin Falls home -- a modest, red-brick dwelling with pictures of Janessa and Hannah lining the home's bedroom, kitchen and living room walls.

And Janessa's sudden death was equally disturbing for the girl's biological father Matt Cunningham, 23, who works as a forklift operator in Oregon. He heard about the accident on May 29, Memorial Day, one day after the accident.

"We were out camping that weekend and we got home the next day. That's when I got the call," Cunningham said from his Philomath, Ore., home. "Julie was very frantic on the other end, crying and everything... and I asked, 'OK, what's wrong?' She said, 'There's been an accident.' She said, 'Janessa's dead,' and I just lost it. ... I dropped the phone and dropped to my knees and started crying. The pain you feel inside is unlike any other."

It's hard not to remain bitter, the Horners and Cunningham agree, especially since all three say additional safety measures could have been in place.

The Horners say the countertops which shattered on the ground were not bound together properly. And they contend the forklift that was lifting the countertops should never have been allowed in the aisle to begin with.

But an investigation into the accident by police and the county prosecutor found no evidence of criminal negligence, and no criminal charges were filed.

While a forklift was stacking countertops in an aisle at the store, Janessa and her parents stood down the aisle, beyond a barricade, County Prosecutor Grant Loebs said in June, after concluding an investigation into the accident.

Negotiations

The Horners have retained a lawyer, Breck Seiniger of Boise. At this point, the Horners are considering a lawsuit against The Home Depot.

Seiniger and the Horners said The Home Depot has offered a settlement -- with one catch. The Horners would have to keep quiet about the accident -- a common condition in liability settlements.

Silence is not an option, however, the Horners and Seiniger said.

"That's just not reasonable to take these people that had their child die right in front of their eyes and say they, for the rest of their lives, can never talk about what happened," Seiniger said. "That's just silly."

Julie Horner agreed.

"This is our life now. You can't expect to be quiet about something that happened in front of your eyes," she said. "It's hard as a parent because you do all these things to keep her safe. We'd never heard of any accidents like that. And it's hard, especially when they (Home Depot officials) don't act like they really care. We're just another cost of doing business with them."

The Horners said they attempted to negotiate with Home Depot on the settlement. They did not want to discuss any money offers.

What they want in a settlement, though, is more stringent safety rules at The Home Depot's stores, including an on-site safety inspector at each store.

But The Home Depot was unwilling to negotiate to that end, the Horners said.

David Rutherford, senior corporate counsel of litigation for The Home Depot, disputes this.

"That simply is not true. We have a very stringent ongoing safety program. I hope the Horners feel that we can reach some kind of middle ground," Rutherford said. "The Horners identified a number of additional safety points. Home Depot is willing to continue discussing those points with the Horners."

Rutherford would not discuss the proposed settlement or any details of it -- including a possible confidentiality clause.

Seiniger said there is no deadline on signing a settlement.

"My clients are very concerned that the public safety issues with this case be dealt with," he said. "In particular, these big-bucks stores that use high stacking as a technique are a tremendous hazard to the public. The practices that killed off the competition are killing consumers."

Safety record

Accidents at retail and warehouse stores, like the one involving Janessa in May, have happened at other Home Depot sites.

A 79-year-old Santa Monica, Calif., woman was killed in November 1999 at a Los Angeles Home Depot when a 19-year-old forklift operator accidentally tipped a load of lumber, stacked several feet above her, the Los Angeles Times reported.

And a 41-year-old Connecticut man was killed at his neighborhood Home Depot when a 2,000-pound pallet of landscaping timbers fell and pinned him to the ground.

Home Depot officials say their stores are safe.

"We, on an ongoing daily basis, are evaluating and revising our safety standards," Rutherford said.

Safety standards were followed on May 28, the day of the accident involving Janessa, a company spokesman said. Workers had closed off the aisle where the forklift was in operation, and a second worker, known as a "spotter," kept watch over the aisle.

"In the instance of this horrible accident, the safety rules were being followed -- there was a spotter and the aisle was closed off. But unfortunately that didn't prevent this horrible tragedy," company spokesman Jerry Shields said in June.

Seiniger said the Horners have hired J. Terrance Grisim, president of Safety Management Consultants LLC of Chicago, to investigate the accident.

Grisim is a liability expert witness.

"It's my duty to educate the jury on what the standard of care is in a situation," Grisim said. "I was asked to go out and take a look at the store and this accident scene and at least form some preliminary opinions and conclusions."

Grisim said he did not want to talk about his findings because, until a suit has been filed, it would be unfair to the parties involved.

Grisim did agree that safety standards at warehouse stores such as The Home Depot could be improved. If workers hadn't been operating a forklift during store hours, then the accident involving Janessa most surely could have been prevented, Grisim said.

"You are dealing with some very heavy materials that are being put up in high stacking," Grisim said. "No deaths happened until they starting mixing forklift trucks with members of the public."

Step by step

Julie and Virgil Horner said they don't plan to shop at The Home Depot again. Neither does Cunningham.

The Horners said they have spoken with their church's pastor about the accident. Virgil Horner, who is attending Bible school in hopes of becoming a pastor, said he received some counseling to deal with the trauma after the accident.

Cunningham said he has not been able to sleep well or eat properly since finding out about his daughter's death.

And work is almost unmanageable for both the Horners and Cunningham.

"Every time I get on the forklift at work, my knees start shaking. I can't keep it together hardly," Cunningham said. "You can't sleep, you have nightmares, you wake up in cold sweats. It's just unbelievable pain."

It will probably be a while before Julie Horner said she'll go back to work at the Boys and Girls Club -- where Janessa's photo was taken just four days before her death.

"When I go back, the kids will ask, 'Your daughter died, didn't she, and your other daughter can die too?'" Julie Horner said. "That's a little too much right now."

Still, the Horners and Cunningham plan to educate as many people as they can about their experience.

The Horners have even talked about taking their story to Congress -- which, Grisim said, could be a skeptical audience.

"Over the last two, three, four years, I don't think you've seen enough numbers where you're going to get our Congress involved," Grisim said.

The Horners and Cunningham said they have learned a lesson from Janessa's death. And they're hoping Janessa's death will bring changes.

"I'm hoping that (Home Depot) will consider that lives are valuable," Julie Horner said, holding her husband's hand. "That they'll realize it's more important to have safety of their customers than making billions of dollars a year."

To find out more about Janessa Horner's life, visit her parents' memorial website at www.angelcities.com/members/jmh3