When a training agency decides it is more important than its instructor members or, worse, the training agency helps the plaintiff sue its own members

This is rare and should not be viewed as common in the industry. At the same time, This is an outrage and this agency needs new directors, new officers and a new board…..NOW!

Most importantly, the training agency lied to its members, continues to lie to its members and requires them to provide information to the agency that they claim is confidential and protected that is NOT.

Privilege is protection afforded by the US constitution that allows a client to say anything and everything to his or her attorney. Privilege also applies to communications between a patient and a physician and a person and his clergy. No court can compel the attorney, physician or priest to say what they have been told.

This is a sacred right as well as a legal issue. It allows the attorney to prepare the best defense or claim because they know everything. It allows a physician to provide the best care because they know everything. It allows a clergy to provide comfort and the person to receive forgiveness because the clergy knows everything.

There is one major exception to the law that applies to patients who have injuries from gun shots. All medical personnel are required to report this to law enforcement in most states. What is said by the patient is not reported, just the type of injury.

Without privilege, an attorney would not know how to prosecute or defend a case, and that is a right guaranteed by the US Constitution. Without privilege, a person might not see their physician or be defended by their attorney. Without privilege, a sinner might never receive absolution. Privilege is a right that is given by a higher protection than any other law or right by state or federal governments except the freedoms of the constitution.

Privilege is limited in its scope. The information must be provided by the person to the professional: clergy, doctor or lawyer. It must be specific to the professional and be of the nature of the services being offered. The information can only be heard or seen by the professional. It must be done after the incident, if legal in nature, to be privileged. It must be prepared by the client for the attorney, at the attorney’s request. Any waiver or violation of these rules and the privilege is waived, or gone.

No other person, party or organization can hear or see the privileged information. If a person, party or organization does, the privilege is lost. Again, there are exceptions such as employees of the attorney. Even improper handling of the information or possible access to the information can waive privilege. Courts have ruled handing privileged information to a third party, who was able to see the information waives privilege. Having a third party over hear the communication waives privilege. Handing the information to your insurance company or training agency before, as, or any time after an incident waives privilege.

That means you cannot take a document prepared for an insurance company and give it to your attorney and call it privileged. That means you cannot prepare a report for your attorney and give a copy to your insurance company. Once it leaves your hands and goes to anyone else other than the attorney the privilege is lost. Any document prepared prior to the incident also has no privilege unless specifically prepared in anticipation of litigation by your attorney.

How that got screwed up in a scuba diving case.

(Parentheses Surround the name of the document from which the information or the quote is taken. There are a lot of documents in this case, and discovery is ongoing.)

Simplified Version of the Facts

David Tuvell was participating in a Professional Association of Scuba Instructors (PADI) Discover Scuba Diving program at the Bear Lake Aquatic Base, which is owned by the Great Salt Lake Council of the Boy Scouts of America.  The dive program was offered by Blue Water Scuba of Logan, Utah and supervised by Corbett Douglas an employee of Blue Water Scuba. Tuvell died during the dive, and his parents sued everyone.

Case

Case Number: No. 1:12CV00128 BCW

US District Court District of Utah, Northern Division

The Parties

Plaintiffs

David Christopher Tuvell, Deceased

Christopher Joseph Tuvell, father of the deceased

Sherry Lynn Tuvell, mother of the deceased

The estate of David Christopher Tuvell

Defendants

Corbett Douglas, Instructor

Boy Scouts of America (BSA)

Blue Water Scuba of Logan, Utah

Bear Lake Aquatic Base

Great Salt Lake Council of the BSA

Professional Association of Diving Instructors (PADI)

PADI Americas, Inc. legal name of PADI

Lowell Huber, owner of Blue Water Scuba of Logan

PADI

PADI was sued because it was a PADI course the deceased was taking at the time. PADI is a training agency that provides training, curriculum and other benefits to and for scuba diving instructors. PADI courses train beginning divers as well as advanced diver and dive instructors. PADI is a mixed membership organization in that it has members who are professional, commercial and non-professional divers.

PADI has a form, the first page of which is pasted below, called the “Incident Report Form.” PADI contractually requires any member of PADI to complete the form and send it to PADI for any incident, injury or fatality. The form states it is “…prepared for the purpose of receiving legal advice or for use in anticipated litigation.” This would imply that the information on the form is protected by privilege. PADI tells its members, they must complete the form and that the information is privileged. See The ABCs of Incident Reporting.

clip_image002[4]PADI’s position on this issue was set forth on a dive bulletin board. (Dive incident reports [Archive] – Scuba Diving Forum – Diving Social Network) The position was stated on the forum by PADI’s director of legal and risk management.

As was speculated on the bulletin board, any incident reports provided to PADI are considered preapred in anticipation of litigation and are therefore, confidential and not released except on the direction of legal counsel or by court order. [spelling error appeared in the original post]

PADI members are required to file incident reports, even if they were just present on the scene. The report states it is privileged; however, it isn’t. Even worse, as these facts show, PADI allegedly provides the reports to the plaintiff as part of any settlement agreement if it is sued. So PADI, in effect, to protect its own butt, lies to its members, and then helps screw its own members in court.

PADI is not a law firm. PADI is an educational organization. There is no privilege with any document or statement made to PADI by anyone for any reason. A confidential document is still provided to all parties in litigation; it just can’t be given to people, not part of the litigation.

How PADI Mislead and then Pissed off the Court

PADI was a defendant in the case. PADI secretly settled with the plaintiffs in the case. This means the parties worked out an agreement where PADI paid the plaintiffs an amount of money and the plaintiffs released PADI, and dismissed their claims against PADI.

Settlement agreements are signed when the parties agree to settle their dispute and quit suing each other. A settlement agreement in litigation has two parts. The first is the agreement between the parties which outlines the amounts and the terms of the agreement. The second is the motion to dismiss based on the settlement agreement that is filed with the court. The court and the other parties never see the settlement agreement itself. Nor does the motion state anything other than the parties have settled.

The court then dismisses the case. In this case, however, several “odd things” occurred. Odd should be replaced by outright fraudulent things.

First, the settlement agreement was signed but no motion to dismiss PADI was made to the court. The original complaint was then amended, with PADI’s consent and allegedly PADI’s help, to remove most of the claims against PADI, even though PADI had settled ALL claims against it.

Once the motion is filed, the Judge reviews the motion to dismiss and grants the motion 99.999% of the time and dismisses the parties from the case, or if one party is staying, the claims between the parties. As a result, one defendant is gone from the case.

PADI signed a settlement agreement with the plaintiffs. The settlement agreement in part stated:

Claimants further understand and agree that this settlement is a compromise of disputed claims and that payment is not to be construed as an admission of liability on the part of any of the Released Parties who are released herein and by whom liability is expressly denied. Even though PADI is settling, it maintains and believes that Claimants are correct that defendants Blue Water Scuba, Lowell Huber, and Corbett Douglas acted improperly and were the primary if not sole cause of this tragic event. PADI desires and intends to remain a party to this action to the extent the court will allow in order to defend the professional reputation of PADI and to defend and represent PADI employees and agents who may be witnesses in this action. [emphasize added] (PADI-Tuvell Settlement Agreement)

I’ve practiced law for thirty plus years, and I have never seen anything like this. I’ve reviewed or written several dozen settlement agreements, and I have never seen or written anything like this.

PADI and other plaintiffs intended to keep their settlement agreement a secret. However, Utah law requires a settlement agreement releasing one defendant to be turned to the other defendants in discovery. When the plaintiffs’ attorney let it slip during a court hearing that a settlement had been reached with PADI, the other defendants demanded that the settlement agreement be provided to everyone in discovery.  

Meanwhile, discovery in the case proceeded and, just before it looked like PADI would be dismissed from the case in accordance with its complete settlement of all the plaintiffs’ claims against it, PADI “inadvertently” produced its Members’ incident reports to the plaintiffs without a discovery request and without first notifying the Members that their confidential reports would be produced. After a few days went by, the attorneys for PADI notified the other parties that the documents had been “inadvertently” produced and asked the documents be destroyed because the Blue Water Defendants might want to claim that they were protected by the attorney-client privilege. (Letter from PADI’s Counsel 10-18-2013, Objections to PADI’s Disclosures.)  This is absolute BS. See above information on privilege.

Eventually, the court found out what was going on with the secret settlement. (Order granting Mtn for Sanctions 08-27-2014.) The court granted sanctions (monetary damages) to the remaining defendants because PADI had:

·         Not immediately notifying the court of the settlement agreement

·         It prolonged the litigation by not leaving the case

·         Entering into a secret settlement agreement

·         Colluding with the plaintiff to file false and misleading claims post-settlement with the court

What unhinges me is this statement.

Plaintiffs and PADI have admitted that PADI insisted that it remain a party to the case, even after PADI and the Plaintiffs had reached a complete settlement of all claims, so PADI could assist the Plaintiffs in proving their claims against the Blue Water Defendants. [emphasis added]

The treachery lies and fraud in this case are unreal.

1.     PADI put itself before its own members. This was not a Spock issue were sacrificing one would save the world. This was simply we are going to sacrifice our member for no reason.

2.     This is another example of abuse of members by telling them they can protect them by completing forms.

3.     PADI lied and deceived its members to collect information about incidents they had no right to have and no right to say was privileged.

Again, this is BS. There is no privilege except between an attorney and the attorney’s client. Anything prepared in anticipation of litigation is prepared for the attorney, no one else. That has been the law since I passed the bar (the test to become an attorney). The attorney can only see the document, no third party, and no non law firm people.

Think you trade association represents you? You better make sure it does.

Do Something

At the very least let, PADI know. I suggest you join another association or form a new one.

NEVER EVER FILL OUT ANY INCIDENT REPORT FORM FOR ANYONE EXCEPT YOUR ATTORNEY.

 

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About these ads

New IRS rulings or old rules are not problems for youth groups

In the past, a unit (BSA, GSA, etc.) would go do a project and earn money. The money would be credited to the individuals who worked. New ruling implies that is not OK, but that is not the real facts.

Money

Money (Photo credit: Tax Credits)

 

The money has always been the units. If the youth who earned the money left the unit, the money stayed with the unit

 

because the check was written to the unit. The incentive to get kids out to work was the idea that they could reduce their cost of a future event by working today. (Besides it got around underage employment laws……).

 

The money has always been the unit’s money. It may be credited to different members of the unit in different ways, but it was never earned by the members. (That would make the IRS mad.)

 

The issue then settles down to how the money is attributed to the individual youth not to rattle the IRS. This may take a little more finesse. However several options can work.

 

1.   Make sure the money is never given to the individual.

 

2.   The unit should write checks out of the account to the activity or the event. (Makes bookkeeping easier because you have one check rather than 30).

 

3.   Round up your bookkeeping. Instead of tracking exact amounts say each youth will get a credit, or a percentage. Don’t keep track of the money for each kid in dollars and cents.

 

4.   Make sure the unit keeps some part of the money for the unit. If a 10 youth work four hours for the unit and the unit receives a $100 check for the work, have the unit credit one credit each to the scouts and keep $60 for the unit.

 

5.   Make sure everyone understand the money is for the unit and if a youth leaves the money stays.

 

Besides, there needs to be some way to help those that can’t. If you have an older youth who is already working a job to pay for his activities and can’t make the event or a poor one who will never be able to go, some part of the money should be contributed to that person. Most youth organizations are not pure capitalism.

 

If you want to have the kid’s ear money, then the person or business hiring, you must write a check to each kid who works. There is no incentive to do this because each kid must be 16 (in most states), must receive a 1099 at the yearend (in some cases) and who wants to collect W-2’s from all those kids.

 

Like everything, this issue was never a problem until some units or organizations took it to zenith degrees earning thousands of dollars for an individual. The companies hiring the units loved it because they got an advertising or donation in exchange for some work with a lot less paperwork.

 

However, a youth organization is not an employment office or a temporary employment service. The organizations are there to promote their missions and program to the youth.

 

Remember that and this issue takes on less of an onerous feeling.

 

By the way, the article is titled wrong. The policy has always been in place; it is just now being talked about.

 

See New policy prohibits individual Scout fundraising accounts

 

Disclaimer: Use of any information from this site or any other web site referred to is for general information only and does not represent personal tax advice either express or implied. You are encouraged to seek professional tax advice for personal income tax questions and assistance.

 

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The Boy Scouts of America are not liable because they owed no duty, they did not own the camp. Negligence requires a duty, and no duty exists if you are not the owners, manager, supervisor or someone who is liable.

The BSA was dismissed because the plaintiff was unable to prove the BSA supervised, owned or managed the camp where he was injured. The BSA had no custody or control of the camp. The plaintiff also failed to argue that a rule, policy, regulation or procedure of the camp had been violated.

Gomes v. Boy Scouts of America, et al., 2013 N.Y. Misc. LEXIS 4622; 2013 NY Slip Op 32453(U)

Date of the Decision: October 9, 2013

Plaintiff: Davide E. Gomes

Defendant: Boy Scouts of America, et al.,

Plaintiff Claims: failure to keep the area safe, in good repair, well-lit and free from obstruction or defect and supervise him and the other scouts

Defendant Defenses:

Holding: For the defendant Boy Scouts of America

The plaintiff, a 13-year-old Boy Scout fell leaving the shower area at a BSA council camp. He sustained injuries and sued the Boy Scouts of America and other parties.

The Boy Scouts of America moved for a dismissal claiming they were not the owners, in control of, or supervisors of the camp. The camp was owned by the Northern New Jersey Council, BSA. The Northern New Jersey Council is a separate legal entity from the Boy Scouts of America.

There was disputed testimony, whether the plaintiff was running (from witnesses) or walking along the path where he fell. It was lit inside the shower area but not lit outside. The plaintiff had a headlamp with him. During discovery, the plaintiff admitted he did not remember what happened that caused him to fall.

The BSA moved for summary judgment, which was granted by the trial court leading to this appeal.

Summary of the case

The arguments in the case are simple. Did the Boy Scouts of America own, manage, supervise or run the camp or was the camp owned by a third party. The court referred to the legal phrase, did the BSA have “custody and control” of the camp. A Boy Scout Council is a separate and distinct entity from the Boy Scouts of America. The Boy Scouts of America grants a charter (sort of like a license) to promote and use the Boy Scout program to the youth in the council’s geographic area. Boy Scout councils own camps like this one where the plaintiff was injured. The title on the deed is Northern New Jersey Council, Boy Scouts of America, not Boy Scouts of America.

The court looked at several other cases, which found the same way.

…BSA not liable for alleged negligence of charter BSA Council as there was no agency relationship between it and Council, and it lacked requisite supervision, direction, or control over adult leader who had custody of Scouts during trip at issue….

…where plaintiff died while on Scout trip, BSA granted summary judgment as it exercised no supervisory control over troop or adult leaders who accompanied scouts on trip….

The court also quoted a decision where a Council was not liable for the acts of a volunteer because the Council did not have control over the Scoutmaster. “…absent evidence that Council had supervision or control over day-to-day activities of Scout troop or scoutmaster, it could not be held liable for scoutmaster’s alleged negligent supervision…”

What caught my eye in this decision was this statement by the court.

Here, there is no issue of very young campers being unsupervised or placed in risky circumstances as plaintiff and his fellow scouts were all teenagers and there is no evidence that any camp policy was violated or that BSA had any control over the camp’s operation.

Here the court might have ruled differently if it had found that the policy of the camp had been violated.

So Now What?

The first issue is agency or ownership. The Boy Scouts of America were not liable to the camper because the BSA did not own, supervise or manage the particular piece of property where the scout was hurt. You can’t sue someone for negligence, unless they owed a duty to you. If you don’t own, manager or supervise the place where the plaintiff was injured you can’t be negligent because you owe no duty to that person.

Of greater interest is the fact the camp had no policies that were violated, which lead to the injury of the plaintiff. As a camp director of a BSA, GSA or any other camp or operation, you need to understand that the rules, regulations, policies and procedures that you write for your camp are going to be used as the rule, the standard, against which you will be judged at trial.

Don’t write rules, policies, regulations, or policies you can’t live up to.

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Gomes v. Boy Scouts of America, et al., 2013 N.Y. Misc. LEXIS 4622; 2013 NY Slip Op 32453(U)

Gomes v. Boy Scouts of America, et al., 2013 N.Y. Misc. LEXIS 4622; 2013 NY Slip Op 32453(U)

[**2] Davide E. Gomes, Plaintiff, -against- Boy Scouts of America, et al., Defendants.

Index No. 115435/10

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

2013 N.Y. Misc. LEXIS 4622; 2013 NY Slip Op 32453(U)

October 9, 2013, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS

CORE TERMS: scout, campers, shower, notice, supervision, negligent supervision, summary judgment, assault, leader, lit, triable issue, scoutmaster, supervise, troop, adult, older, trip, discovery, dangerous condition, duty to supervise, prior conduct, unanticipated, accompanied, negligently, supervised, assaulted, charter, oppose, fellow, bunks

COUNSEL: [*1] For plaintiff: Scott W. Epstein, Esq., Antich, Erlich & Epstein, LLP, New York, NY.

For Patrick Loureiro: Harvey Gladstein, Esq., Gladstein Keane & Partners LLC, New York, NY.

For Boy Scouts of America: Brian P. Morrissey, Esq., Connell Foley LLP, New York, NY.

For Bryan Barbosa: Charles J. Sosnick, Esq., Law Office of James J. Toomey, Esq., New York, NY.

For Michael Medeiros: Ann P. Eccher, Esq., Smith Mazure et al., New York, NY.

JUDGES: PRESENT: Barbara Jaffe, Justice.

OPINION BY: Barbara Jaffe

OPINION

SUMMARY JUDGEMENT

DECISION & ORDER

BARBARA JAFFE, JSC:

By notice of motion, defendant Boy Scouts of America (BSA) moves pursuant to CPLR 3212 for an order summarily dismissing the complaint against it. Plaintiff and defendant Loureiro oppose.

By notice of motion, defendant Michael Medeiros moves for an order precluding plaintiff from introducing at trial certain evidence based on his failure to respond to discovery demands. Plaintiff opposes.

The motions are consolidated for disposition.

I. PERTINENT BACKGROUND

On July 24, 2005, plaintiff, then a 13-year-old Boy Scout, was participating in a Boy [**3] Scout excursion at Floodwood Mountain Scout Reservation in the Adirondacks. Plaintiff was a member of Boy Scout Troop 141. He and [*2] other scouts were accompanied by volunteer adult leaders. Near or in the shower house at the Reservation, plaintiff sustained head injuries. (NYSCEF 19).

In accident and witness reports created after the accident, the other scouts who were at the showers at the time of plaintiff’s accident stated that they saw plaintiff run from the shower area and discovered him lying prone on the ground and bleeding. None of them saw him fall. (NYSCEF).

In his amended complaint, plaintiff alleges that as he was walking along the common area and/or grassy area at or near the showers, he fell due to defendants’ failure to keep the area safe, in good repair, well-lit and free from obstruction or defect and supervise him and the other scouts. As to BSA, plaintiff alleges that it owned, operated, controlled, maintained, managed, and inspected the Reservation and camp grounds and supervised the activities held there. (NYSCEF 17).

In plaintiff’s supplemental verified bill of particulars, he describes the dangerous condition which caused his fall as follows: “that the area in front of the showers where the [ ] accident occurred was not lit, and/or was poorly lit, and/or was inadequately lit; was raised and [*3] un-leveled, and had rocks and/or tree limbs/branches strewn about it,” all of which defendants had constructive notice. (NYSCEF 22).

At an examination before trial held on December 16, 2011, plaintiff testified that he did not recall his accident or what had caused his fall, and that his last memory before falling was of walking to the showers. At the time of his accident, it was dark outside and there was no lighting [**4] outside the showers, although it was lit inside, and he noticed that there were many rocks on the ground around the shower house. He was wearing a working head lamp as he approached the showers. (NYSCEF 25).

By affidavit dated July 25, 2012, Todd McGregor, area director for BSA’s Northeast Region, states that BSA grants charters to local scout councils and organizations to operate scouting groups or units, that the Reservation and camp grounds were owned and operated by Northern New Jersey Council, Inc., Boy Scouts of America, and that no BSA employees were in staff positions at the camp when plaintiff was injured, nor did BSA supervise the scouts or maintain the grounds. (NYSCEF 39).

II. MOTION FOR SUMMARY JUDGMENT

Based on McGregor’s affidavit, BSA has established, prima [*4] facie, that it may not be held liable to plaintiff for the alleged dangerous condition at the Reservation or the alleged assault upon plaintiff by another scout. (See Entler v Koch, 85 AD3d 1098, 928 N.Y.S.2d 297 [2d Dept 2011], lv denied 18 NY3d 869, 962 N.E.2d 275, 938 N.Y.S.2d 851 [2012] [BSA not liable for alleged negligence of charter BSA Council as there was no agency relationship between it and Council, and it lacked requisite supervision, direction, or control over adult leader who had custody of Scouts during trip at issue]; O’Lear v Boy Scouts of Am., 33 AD3d 685, 821 N.Y.S.2d 903 [2d Dept 2006] [where plaintiff died while on Scout trip, BSA granted summary judgment as it exercised no supervisory control over troop or adult leaders who accompanied scouts on trip]; Pitkewicz v Boy Scouts of Am., Inc. – Suffolk County Council, 261 AD2d 462, 690 N.Y.S.2d 119 [2d Dept 1999] [absent evidence that Council had supervision or control over day-to-day activities of Scout troop or scoutmaster, it could not be held liable for scoutmaster’s alleged negligent supervision]; Alessi v Boy Scouts of Am. Greater Niagara Frontier Council, Inc., 247 [**5] AD2d 824, 668 N.Y.S.2d 838 [4th Dept 1998] [neither BSA nor Council held liable for acts of scoutmaster]).

Plaintiff’s claim that BSA may be held liable [*5] for negligent supervision based on his claim that he was assaulted by other scouts does not raise a triable issue absent evidence that BSA had or violated a duty to supervise the scouts at the Reservation or that it knew of any prior conduct that would have put it on notice of a potential assault by another scout. (See eg Buchholz v Patchogue-Medford School Dist., 88 AD3d 843, 931 N.Y.S.2d 113 [2d Dept 2011] [injuries caused by impulsive, unanticipated act of fellow student will not give rise to negligent supervision claim absent proof of prior conduct that would have put reasonable person on notice]; Ullrich v Bronx House Community Ctr., 99 AD3d 472, 952 N.Y.S.2d 32 [1st Dept 2012] [community center not liable for assault on player during basketball game as it was unprovoked and unanticipated, there was no warning of impending assault, and thus it occurred in such short span of time that “even most intense supervision could not have prevented it”]).

In Phelps v Boy Scouts of Am., on which plaintiff relies, “very young campers” were placed in bunks at a camp with “much older campers,” who allegedly assaulted the young campers. The court denied summary judgment to BSA, finding that there were triable issues as to whether [*6] the camp negligently supervised the campers and whether BSA had “sufficient control over the operation of the camp” to be held liable for the camp’s negligent supervision. (305 AD2d 335, 762 N.Y.S.2d 32 [1st Dept 2003]). The court observed that a summer camp has a duty to supervise its campers as would a parent of ordinary prudence in similar circumstances, and that constant supervision in a camp setting is neither desirable nor feasible. However, the court also allowed that very young campers often require closer supervision than older campers, and that placing the younger campers in the bunks with the older campers was an apparent violation of camp policy.

[**6] Here, there is no issue of very young campers being unsupervised or placed in risky circumstances as plaintiff and his fellow scouts were all teenagers and there is no evidence that any camp policy was violated or that BSA had any control over the camp’s operation. (See Kosok v Young Men’s Christian Assn. of Greater New York, 24 AD2d 113, 264 N.Y.S.2d 123 [1st Dept 1965], affd 19 NY2d 935, 228 N.E.2d 398, 281 N.Y.S.2d 341 [1967] [finding that camp operator did not negligently supervise activities of campers of high school age for short period as “certain amount of horseplay is almost always to be [*7] found in gatherings of young people, and is generally associated with children’s camps” and is only discouraged when it becomes dangerous and camp operator had no notice that it was likely to do so; however, situation is different when very young children involved]).

Moreover, to the extent that plaintiff relies on a “Leaders’ Guide” which allegedly sets forth requirements for the supervision of scouts, BSA denies that it was involved with its preparation or that it reviewed, approved, or was aware of it. (NYSCEF 79). Plaintiff has thus failed to raise a triable issue as to BSA’s liability.

III. MOTION TO PRECLUDE

Defendant Michael Medeiros’s motion to preclude is granted solely to the extent of directing plaintiff to respond to his June 8, 2012 discovery demands and setting the matter down for a compliance conference.

IV. CONCLUSION

Accordingly, it is hereby

ORDERED, that defendant Boy Scouts of America’s motion for summary judgment is granted, and the complaint and any cross claims against it are severed and dismissed, with costs and disbursements to said defendant as taxed by the Clerk upon the submission of an appropriate [**7] bill of costs, and the Clerk is directed to enter judgment accordingly; [*8] it is further

ORDERED, that defendant Michael Medeiros’s motion to preclude is granted solely to the extent of directing plaintiff to respond to his June 8, 2012 discovery demands within 20 days of service on plaintiff of a copy of this order with notice of entry; and it is further

ORDERED, that the remaining parties in the consolidated action are directed to appear for a compliance conference on November 13, 2013 at 2:15 pm, in Room 279 at 80 Centre Street, New York, New York.

ENTER:

/s/ Barbara Jaffe

Barbara Jaffe, JSC

DATED: October 9, 2013

New York, New York


BSA Summer Camp was able to have punitive damages claim dismissed prior to trial

Plaintiff’s complaint was not sufficient to adequately plead its claim for punitive damages.

N.H., a minor child, v. N.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452 (ED Ten 2012)

Plaintiff: N.H., a minor child, by and through his parents Jorge Hernandez and Elizabeth Hernandez and Jorge Hernandez and Elizabeth Hernandez, Individually

Defendant: Sequoyah Council, Inc., Boy Scouts of America

Plaintiff Claims: (1) it [defendant] failed to keep the mountain bike trails in a reasonably safe condition; (2) it failed to warn the minor plaintiff of hidden perils of the trails which defendant knew, or by reasonable inspection, could have discovered; (3) it failed to properly train its employees; (4) it failed to properly mark the bike trail; (5) it failed to properly evaluate and assess the skill of the minor plaintiff before allowing him to ride the trail; and (6) it was “negligent in other manners

Defendant Defenses: Unknown

Holding: Motion to dismiss punitive damages claim by defendant granted for defendant

 

This is a pre-trial decision and should not be relied upon for a firm statement about the law in Tennessee as far as dismissing claims prior to trial.

The plaintiff was a boy who went to a Boy Scout Summer Camp in Tennessee. While mountain biking at the camp his brakes allegedly did not work, and he rode off the trail and hit a tree.

The plaintiff sued for a multitude of claims, including an allegation that punitive damages were being requested. The defendant filed this motion prior to trial to eliminate the claim for punitive damages.

Summary of the case

The court looked at Tennessee’s law concerning punitive damages. Under Tennessee’s law, punitive damages are only available for “only the most egregious of wrongs.” “Accordingly, under Tennessee’s law, “a court may … award punitive damages only if it finds a defendant has acted either (1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.”

Punitive damages are not available for gross negligence. To receive punitive damages under Tennessee’s law:

A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.

In this case, the complaint did not make any allegations that fit within the required definitions. Consequently, the part of the complaint demanding punitive damages was dismissed.

So Now What?

This was a pre-trial motion that was of interest; however, this is not a final decision in the case and could be overturned by another court after the trial on this case.

Tennessee has higher requirements for most other states to ask for and receive punitive damages. Consequently, the defendant was able to dismiss that part of the complaint in advance of trial.

It never hurts to know the specifics of what is required to prove damages above normal damages. That knowledge can help keep you safe.

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You cannot be liable for what you do not control or what volunteers do

Moore v. Boy Scouts of America Los Angeles Area Council, Inc., 2004 Cal. App. Unpub. LEXIS 11180

It is also hard to be liable for not watching where you are walking

This case stems from injuries received when a volunteer was setting up a tent and fell over one of the guy lines for the tent.

The plaintiff was a volunteer and with other volunteers was setting up a large tent at a Scout Camp. The camp was owned by the Los Angeles Area Council, Inc. which was granted a charter by the Boy Scouts of America to offer the Scouting program to local youth. The tent was a large military wall tent, similar to what you would see on reruns of M*A*S*H.

While setting up the tent, another volunteer asked the plaintiff to get more tent stakes. She walked around the tent, picked up more stakes and while walking back tripped over one of the guy lines holding up the tent. None of the guy lines had been marked with flags or markers to indicate there was a line there and the accident occurred around 7:00 Pm in July. (None are marked in the M*A*S*H reruns either.) The factual issue became whether or not markers or flags should have been used to identify the guy-lines on the tents.

The court went through and clearly identified factual issues the court felt were important.

Moore had not set up the specific pole, rope or stake upon which she tripped.

The ropes coming off the tent were at varying angles and pitches. The ropes varied in length, de-pending upon location. There were no flags or markers on the ropes.

Before this date, Moore had never been involved in setting up or taking down this tent or this type of tent. However, in years past, Moore had used rope or flags to mark the guy ropes on this tent to make the ropes more visible.

Before Moore fell, neither Moore nor any of the other adult volunteers saw anything they considered unsafe or dangerous.

In the past, some of the adult volunteers had used markers (e.g., cloth or fluorescent plastic tape) to make ropes more visible in scout camps and in non-scout camping situations. In prior years, this tent had been used in the Boy Scout camp, and flags had been used to mark the ropes. It is unclear if markers were used each time the tent was used.

The plaintiff argued the BSA did not have a policy of marking guy lines with markers or flags.

The plaintiff sued for premises liability and negligence. The premises liability claim was based on negligently setting up a tent without guy lines and the negligence claim for not using reasonable care when setting up tents by not using markers on guy-lines.

The Boy Scouts filed a motion for summary judgment based on the fact there was no triable issues, no real legal claims, which was granted and the plaintiff appealed.

So?

The plaintiff’s main arguments were supported by its expert an ergonomist who was a human factors and safety consultant. (This has me confused too, as to why an ergonomist (whatever) has any knowledge of setting up a tent.) The ergonomist said that that groups in Virginia, Australia and Louisiana has policies on markers on tent lines.

The court first looked at the premises liability claim. A premises liability claim is based on a dangerous condition on land. The owner of land is liable for “only for hazardous conditions of which the possessor had actual or constructive knowledge.” The tent was not part of the land so there was no legal basis for a premises liability claim.

The negligence claim was also dismissed by the court. Since the tent was being set up by volunteers, there was no proof that the BSA created the dangerous condition or was aware that a dangerous condition existed. The BSA could not breach a duty of care when the actions which created a dangerous condition were not those of the BSA. Nor does the lack of a policy create a dangerous condition on land. The plaintiff’s argument the court reasoned, where closer to tent issues not land issues.

So Now What?

The legal issues are as stretched in this case as you can get in my opinion. You are setting up a tent by setting up guy lines; you can’t sue when you trip over a guy line.

The claims were incorrect for the facts. The court looked at the issues and could not find any legal connection between the facts, the claims and the law.

However, that does not mean that not watching where you walk might not lead to litigation at some future date that does hold some water.

You can write policies till there are no more trees. In doing so, you’ll probably sink some other group who is trying to save trees. Better to educate than kill a tree. Train your volunteers, prove you trained them, and then explain how the organization they are volunteering for cannot afford lawsuits, stupid ones or regular ones. By that I mean include litigation training; you can’t sue us, in the training you provide.

Explain how it is their job to protect each other as well as to protect the organization. Tell them and prove you told them that you cannot identify all of the risks they may encounter.

You might even have them sign a release.

Plaintiff: Josephine Moore

 

Defendant: Boy Scouts of America Los Angeles Area Council, Inc.

 

Plaintiff Claims: Premises Liability and Negligence

 

Defendant Defenses: not triable issues of fact, no negligence

 

Holding: Trial court dismissal was affirmed

 

 

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Moore v. Boy Scouts of America Los Angeles Area Council, Inc., 2004 Cal. App. Unpub. LEXIS 11180

Moore v. Boy Scouts of America Los Angeles Area Council, Inc., 2004 Cal. App. Unpub. LEXIS 11180

Josephine Moore, Plaintiff and Appellant, v. Boy Scouts of America Los Angeles Area Council, Inc., Defendant and Respondent.

B170389

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE

2004 Cal. App. Unpub. LEXIS 11180

December 10, 2004, Filed

NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBIT COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 977.

PRIOR HISTORY: APPEAL from a judgment of the Superior Court of Los Angeles County, No. NC040331. Elizabeth Allen White, Judge.

DISPOSITION: Affirmed.

CORE TERMS: scout, tent, rope, volunteer, flag, summary judgment, scout camp, causes of action, hazard, marker, adult, guy ropes, feet, dangerous condition, declaration, triable, conspicuity, warning, premises liability, issues of fact, negligently, military, donated, wall tent, lighting, tripped, visible, manual, pole, trip

COUNSEL: Sedgwick, Detert, Moran & Arnold, Thomas A. Delaney and Steven S. Streger, for Defendant and Respondent.

Desjardins Kelly and Warren D. Kelly, for Plaintiff and Appellant.

JUDGES: ALDRICH, J.; CROSKEY, Acting P. J., KITCHING, J. concurred.

OPINION BY: ALDRICH

OPINION

INTRODUCTION

Plaintiff and appellant Josephine Moore (Moore) was setting up a tent for a scout camp site when she tripped over a rope that was securing the tent. Moore appeals from a summary judgment entered in favor of defendant and respondent Boy Scouts of America Los Angeles Area Council. Inc. (the Boy Scouts). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Following the usual rules on appeal, we construe the facts in the light most favorable [*2] to Moore, the party who opposed the motion for summary judgment. (Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1836.)

On July 8, 2001, Moore was setting up a scout camp site. She and other adult volunteers were erecting a wall tent that was secured by poles and ropes. No employee of the Boy Scouts was involved in setting up the tent. The Boy Scouts did not own the tent. The rectangular tent was oblong, about 24 feet long by 16 feet wide. The poles used to hold up the tent were 6 feet long. Beige ropes were used to secure the tent to the ground and to keep the tent upright.

At about 7:00 p.m., the volunteers had been setting up the tent for 30 to 60 minutes. The tent was about four or five feet from a picnic table. One of the other adults asked Moore to retrieve additional stakes from the opposite side of the tent. Moore walked around the tent and picked-up six or seven stakes. Moore walked near the tent, toward the adult who had requested the stakes. In doing so, Moore tripped over one of the ropes that had already been staked into the ground. The stake holding the rope was two to five feet from the tent and two to five feet from the picnic table.

[*3] Moore had not set up the specific pole, rope or stake upon which she tripped.

The ropes coming off the tent were at varying angles and pitches. The ropes varied in length, depending upon location. There were no flags or markers on the ropes.

Before this date, Moore had never been involved in setting up or taking down this tent or this type of tent. However, in years past, Moore had used rope or flags to mark the guy ropes on this tent to make the ropes more visible.

During the time the tent was being set up, Moore was aware that some guy ropes were already in place, extending out from corners of the tent.

Before Moore fell, neither Moore nor any of the other adult volunteers saw anything they considered unsafe or dangerous.

In the past, some of the adult volunteers had used markers (e.g., cloth or fluorescent plastic tape) to make ropes more visible in scout camps and in non-scout camping situations. In prior years, this tent had been used in the Boy Scout camp, and flags had been used to mark the ropes. It is unclear if markers were used each time the tent was used.

The Boy Scout’s manual did not address rope safety and did not instruct that markers were to be used, although [*4] some believed marking the ropes made good sense. The photograph of a wall tent in the manual appeared to have markers on the ropes.

At one Boy Scout volunteer training session held a few years prior to this accident, volunteers were told to flag tent ropes so no one would trip. The Boy Scouts had no documents relating to the use of warnings on ropes.

The scout camp is planned by volunteers. The Boy Scout district executive, Jim McCarthy, attends the planning meetings.

2. Procedure.

Moore sued the Boy Scouts. The complaint stated two causes of action.

In the first cause of action for premises liability, Moore alleged that the Boy Scouts “negligently maintained, managed, controlled, and operated the Scout Camp, in that the guy ropes attached to a certain tent in the Scout Camp were unmarked with flags, or with anything, and were obscured from view without some kind of flag, marker, or other warning, owing to their color, size and geometry, location, time of day, and other factors, which [the Boy Scouts] knew, or in the exercise of reasonable care should have known, constituted a dangerous condition and unreasonable risk of harm of which [Moore] was at all times . . . [*5] unaware. [The Boy Scouts] negligently failed to take steps to either make the condition safe or warn [Moore] of the dangerous condition, all of which caused [Moore] to trip and fall on one of the guy ropes, and to suffer the injuries and damages hereinafter described.”

In the second cause of action for negligence, Moore alleged that the Boy Scouts failed to “use reasonable care in the construction, maintenance, management, and control of the Scout Camp, including but not limited to placing flags or some other kind of marker or warning to identify and call attention to the presence and location of the guy ropes surrounding the tent tarp. [P] . . . [The Boy Scouts] knew or should have known that the construction of the Scout Camp was likely to create during the construction a risk of harm to those who were working on and around the Scout Camp unless special precautions were taken, in that, among other things, guy ropes, which were obscured from view . . . would be emanating from the tent, unmarked and unguarded, in a fashion that constituted a hazard to persons, including [Moore].”

The Boys Scouts brought a motion for summary judgment.

In opposing the motion, Moore submitted [*6] the declaration of psychologist Ilene B. Zackowitz, Ph.D. Dr. Zackowitz declared the following. She was a human factors and safety consultant and a certified professional ergonomist. 1 She had reviewed the discovery in this case. “When wall tents that are secured with ropes and stakes are used, it is foreseeable that the low conspicuity of the ropes may present a tripping hazard. Despite this foreseeable hazard, [the Boy Scouts have] no stated policy or procedure that addresses the hazard, namely using flags to increase the conspicuity of guy ropes, in the [Scout] Camping merit badge book or the Scouts ‘Guide to Safe Scouting.’ ” “Other Scout Councils recognize the hazard and have policies in place to address the hazard[, such as a troop in Georgetown, Virginia, the Scout Association of Australia, and the Southeast Louisiana Council].” “A stated policy of securing conspicuous flags to the ropes as they are secured to the ground (as opposed to waiting until the entire tent is erected) would greatly increase the conspicuity of the anchoring ropes.” “The incident occurred at dusk such that lighting conditions and contrast were reduced. Under ideal lighting conditions, a rope and [*7] stake would have low contrast with the dirt covered ground surface. . . . There were no visual cues that the hazard was present. . . . A flag on the rope would have provided contrast and would have called attention to the hazard.”

1 Dr. Zackowitz’s curriculum vitae includes information that she serves as a forensic consultant for personal injury accidents, including slips, trips, missteps, and falls, the effectiveness of warnings, visibility, conspicuity, and lighting.

The trial court granted the summary judgment motion. In the order granting summary judgment, the trial court found there were no triable issues of fact because: (1) there was no evidence of a dangerous condition and Dr. Zackowitz’s declaration was not admissible on the issue; (2) the Boy Scouts had no notice of the condition as the only ones present were volunteers, who were not agents of the Boy Scouts; and (3) the condition was open and notorious.

Judgment was entered against Moore, from which she appealed.

DISCUSSION

1. Standard [*8] of review upon a motion for summary judgment.

Following the granting of a summary judgment, we review the moving papers independently to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. (Jackson v. Ryder Truck Rental, Inc., supra, 16 Cal.App.4th at p. 1837.)

A defendant who brings a motion for summary judgment asserting that the plaintiff cannot state a cause of action need only address the theories advanced in the complaint, as the complaint frames the issues. (United States Golf Assn. v. Arroyo Software Corp. (1999) 69 Cal.App.4th 607, 623; Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 886-887; FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381, 282 Cal. Rptr. 508.) “A party cannot successfully resist summary judgment on a theory not pleaded. [Citation.]” (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.)

2. Moore has not demonstrated a triable issue of fact with regard to the two theories presented.

Moore stated two causes of action – premises [*9] liability and negligence. She contends there are triable issues of fact with regard to these causes of action. This contention is unpersuasive.

A cause of action for premises liability generally is based upon a dangerous condition on land. (Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406, fn. 1.) The possessor of land is liable only for hazardous conditions of which the possessor had actual or constructive knowledge. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1203.) Here, the tent was set up by volunteers, who were not the agents of the Boy Scouts. (Young v. Boy Scouts of America (1935) 9 Cal. App. 2d 760, 765 [adult volunteers are not agents of local councils].) There is no evidence the Boy Scouts knew the tent was being set up. Thus, the Boy Scouts neither created the “dangerous” condition nor were aware that it existed.

With regard to the negligence cause of action, Moore alleged that the Boy Scouts negligently constructed, maintained, managed, and controlled the camp. However, the undisputed facts were that the volunteers undertook all of these activities. Thus, Moore failed to establish that the [*10] Boy Scouts breached its duty to her. (Cf. Ortega v. Kmart Corp., supra, 26 Cal.4th at p. 1205 [negligence requires duty, breach, causation, damages].)

Moore argues that notice of the condition is irrelevant as liability “is not based on acts of the volunteers who erected the tent, but on the policy (or lack thereof) of the [Boy Scouts] relating to tent safety, as well as the fact that [the Boy Scouts] provided a tent with inconspicuous ropes and no flags.” These arguments are based primarily upon (1) statements made by some of the volunteers who said that the past they had marked the ropes to make them more visible, (2) comments by Moore’s expert (Dr. Zackowitz), and (3) Dr. Zackowitz’s reference to other scout manuals.

However, Moore’s complaint, which framed the issues, did not alleged that the Boy Scouts lacked a policy with regard to rope safety, nor did it allege that the Boy Scouts were negligent in supplying a defective tent. (Cf. FNS Mortgage Service Corp. v. Pacific General Group, Inc. (1994) 24 Cal.App.4th 1564, 1572 [discussing negligent undertaking].)

Further, there is an evidentiary problem with Moore’s argument [*11] relating to the Boy Scouts supplying the tent. In Moore’s appellate brief, she does not provide a citation to the record to support the statement that the tent had been supplied by the Boy Scouts or that it had been donated to the Boy Scouts by the military. (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1378-1379 [parties have obligation to provide proper citations to record].) 2 In Moore’s separate statement of disputed and undisputed material facts, Moore also fails to establish that the tent had been supplied by the Boy Scouts, or that it had been donated to the Boy Scouts by the military. Additionally, Moore testified in her deposition that she did not believe that the Boy Scouts owned the tent. Dr. Zackowitz did state in her declaration that the tent had been donated to the Boy Scouts by the military. However, Dr. Zackowitz does not identify the source of this information and therefore this testimony lacks foundation.

2 In the introduction to her brief, Moore points to the Clerk’s Transcript, pages 226 to 264 for this factual assertion. This is an insufficient citation. (Grant-Burton v. Covenant Care, Inc., supra, 99 Cal.App.4th at p. 1379 [appropriate reference to records must include exact page citations].)

[*12] Summary judgment was properly granted in favor of the Boy Scouts. 3

3 In light of our conclusion, we need not address whether the trial court made evidentiary errors with regard to Dr. Zackowitz’s declaration.

DISPOSITION

The judgment is affirmed. Moore is to pay all costs on appeal.

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

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