US Army and BSA not liable for injured kids on Army base. No control by the BSA and recreational use defense by US Army.

Agency requires more than just relationship; it requires actual control over the alleged agents.

Wilson v. United States, 989 F.2d 953; 1993 U.S. App. LEXIS 6165, (8th Cir. 1993)

State: Missouri, United States Court of Appeals for the Eighth Circuit

Plaintiff: Mark D. Wilson; Janet L. Wilson, Jason S. Harbian; Michael Harbian; Sharon Harbian; Daniel R. Winfrey, a Minor, by Susan Crump, his Mother and Next Friend, and; Susan Crump

Defendant: United States of America; the Boy Scouts of America

Plaintiff Claims: Federal Tort Claims Act, and against the Boy Scouts of America (BSA) pursuant to Missouri state law, for negligent supervision and failure to train the adult supervisors

Defendant Defenses: No relationship between the BSA and the adult volunteers and the Missouri Recreational Use Statute

Holding: for the Defendant

Year: 1993

A group of Boy Scouts and their adult leaders were at Fort Leonard Wood, a US Army military post for the weekend to participate in the Army’s Youth Tour Program. The boys and adults stayed in a barrack. Stacked beside the barrack were aluminum alloy irrigation pipes that were approximately 30’ long. The pipes were stacked there when not in use for six years.

Three of the boys grabbed one of the pipes and carried it 20’ west of the building and raised it to a vertical position. It came in contact with a high-voltage line injuring two boys and killing one.

Because one of the defendants was the United States, as the owner of the land and property under the supervision and control of the US Army, the case was brought in the Federal District Court of Missouri for the Eastern District of Missouri.

The trial court dismissed the claims of all plaintiffs because of the Missouri recreational use act for the defendant US Army, and the BSA did not owe the plaintiff’s a duty of care. The plaintiff’s appealed.

Analysis

To sue an agency of the United States, your claims must meet the requirements of the Federal Tort Claims Act. The act allows the defendant to assert any defense allowed under the act and as allowed under the law of the state where the incident occurred.

In this case, the defendant US raised the defense provided by the Missouri Recreational Land Use Statute, Mo. Rev. Stat. §§ 537.345 – 537.348. The act provides immunity to landowners who make their property available for recreation without an entry charge.

Except as provided in sections 537.345 to 537.348, an owner of land owes no duty of care to any person who enters on the land without charge to keep his land safe for recreational use or to give any general or specific warning with respect to any natural or artificial condition, structure, or personal property thereon.

Recreational use is defined by the act as “hunting, fishing, camping, picnicking, biking, nature study [and] winter sports.”

The immunity is available unless the landowner is:

…found to have been either maliciously or grossly negligent in failing to guard or warn against a dangerous condition which the owner knew or should have known to be dangerous, or if the landowner negligently failed to warn or guard against an ultrahazardous condition. Other exceptions to the nonliability of the statute include injuries occurring on or in any “noncovered land,” which is defined as land used primarily for commercial, industrial or manufacturing purposes.

The Army charged $2.00 per person to say in the building. The plaintiff’s argued that the recreational use act then did not apply to the defendant US Army.

1) the Army charged $ 2.00 per person to be billeted in Building 1614; (2) the United States receives an economic benefit from offering its land; (3) the Boy Scouts were not members of the “general public,” and thus were not covered by the Act; (4) the injury occurred on “noncovered land;” and (5) the United States negligently failed to protect against an ultrahazardous condition.

The Fort was called an open military post. That means that members of the public were allowed to visit the post. The post was open to the public for “fishing, hunting, hiking, camping, picnicking or canoeing.” The Fort also offered the Youth Tour Program which allowed national youth organizations such as the BSA special programs not available to the general public. These programs included “visits to the Fort’s museum, an indoor rifle range, an obstacle course and a cannon range.”

If the youth group or in this case, the BSA, want to spend the night, the Army charges a $2.00 per person fee.

This fee covers the cost of maintaining and equipping the facility with mattresses, toilet paper, soap, and other supplies. If a troop chooses to stay overnight but no beds are available, the lodging fee is reduced to $ 1.00 per person/per night.

The application of the Missouri Recreational Use Statute, construes fees in the act as defined to enter upon the land. The $2.00 fee was paid to stay overnight in the building, entrance onto the base was free.

There is no evidence in the record to indicate that this fee would have been charged to either participate in the Youth Tour Program, or to enter Fort Leonard Wood, if the scouts had elected not to stay overnight. In fact, all the Fort Leonard Wood documents relating to this fee provide that it is a “lodging” fee, and that it is assessed on a per person/per night basis.

The remaining arguments presented by the plaintiffs were quickly dismissed by the court in a paragraph for each argument.

The court then turned to the claims against the Boy Scouts of America. In order to hold the National Council of the BSA liable for the acts of the volunteer adult leaders in Missouri, the plaintiff has to prove an agency relationship existed between the BSA and the adults. This would allow the plaintiff’s to argue a vicarious liability claim against the BSA.  

The appellants claim the BSA had the right to control and supervise Troop 392’s adults, that the BSA is liable for the negligent acts of the troop’s adult leaders which were committed within the scope and course of their agency relationship, and further that the troop’s adult leaders were clothed with implied and apparent authority to act on behalf of the BSA when they were present at Fort Leonard Wood.

The court then accurately related the legal relationship between the BSA national office and volunteers of a unit.

The Boy Scouts of America is a congressionally chartered benevolent national organization, which is divided into geographic areas known as local councils. Three hundred ninety-eight local councils are chartered in the United States. Local sponsors, such as schools, churches or civic organizations apply for charters from the BSA through their local council. Local volunteers form a patrol leaders’ council to plan troop activities. BSA does not conduct or require any training for these adult volunteers. Troops do not need permission from BSA before participating in activities, with the exception of tours outside the United States or five hundred miles or more from the local council. The BSA had no advanced notice of Troop 392’s trip to Fort Leonard Wood. The troop was not required, nor did it receive, permission from the BSA to go to Fort Leonard Wood.

The court then examined the requirements of respondeat superior, needed to hold an employer liable for the acts of an employee.

Liability based on respondeat superior requires some evidence that a master-servant relationship existed between the parties. The test to determine if respondeat superior applies is whether the person sought to be charged as a master had “the right or power to control and direct the physical conduct of the other in the performance of the act.” If there is no right to control, there is no liability.

The plaintiff failed to produce any evidence that the BSA national council has any control over the “specific activities of individual troops, or that it had a duty to control, supervise or train volunteer leaders for the Fort Leonard Wood activity.”

The appellate court upheld the lower court’s dismissal of the case.

So Now What?

This is another situation where the recreational use statute has been parsed by how the many paid were used by the landowner. Money paid to enter the land does not allow the landowner to use the defense of the state recreational use statute. Money paid for other things once on the land may still allow the use of the statute as a defense.

However, this is a narrow reading of the law and would be specific to each state law. Make sure you have consulted with a local attorney familiar with the law before making this decision to charge for other items.

The Boy Scouts of America do not supervise, control or have any power or authority over its volunteers.

 

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By Recreation Law       Rec-law@recreation-law.com              James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, BSA, Boy Scouts, Boy Scouts of America, Fort Leonard Wood, Recreational Use Statute, Agency, Respondeat Superior,

 


Wilson v. United States of America, 989 F.2d 953; 1993 U.S. App. LEXIS 6165

Wilson v. United States of America, 989 F.2d 953; 1993 U.S. App. LEXIS 6165

Mark D. Wilson; Janet L. Wilson, Appellants, v. United States of America; The Boy Scouts of America, Appellees. Mark D. Wilson; Janet L. Wilson, Plaintiffs, v. The Boy Scouts of America, Defendants. Jason S. Harbian; Michael Harbian; Sharon Harbian; Daniel R. Winfrey, a Minor, by Susan Crump, his Mother and Next Friend, and; Susan Crump, Appellants, v. United States of America; The Boy Scouts of America, Appellees.

No. 92-1438, No. 92-3363

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

989 F.2d 953; 1993 U.S. App. LEXIS 6165

September 18, 1992, Submitted

March 29, 1993, Filed

SUBSEQUENT HISTORY: [**1] Rehearing Denied May 10, 1993, Reported at: 1993 U.S. App. LEXIS 10903.

PRIOR HISTORY: Appeals from the United States District Court for the Eastern District of Missouri. District No. 89-1696-C-7. Jean C. Hamilton, U.S. District Judge.

DISPOSITION: Affirmed

CASE SUMMARY:

COUNSEL: For MARK D. WILSON, JANET L. WILSON, Plaintiffs – Appellants: Alan E. DeWoskin, 314-727-6330, Suite 426, 225 S. Meramec Avenue, St. Louis, MO 63105.

For UNITED STATES OF AMERICA, Defendant – Appellee: Joseph Moore, Asst. U.S. Attorney, 314-539-3280, U.S. ATTORNEY’S OFFICE, 1114 Market Street, St. Louis, MO 63101. Robert William Cockerham, BROWN & JAMES, 705 Olive Street, Suite 1100, St. Louis, MO 63101, 314-421-3400. For BOY SCOUTS, OF AMERICA, Defendants – Appellees: Russell F. Watters, Robert William Cockerham, Thomas Michael Ward, BROWN & JAMES, 705 Olive Street, Suite 1100, St. Louis, MO 63101, 314-421-3400.

JUDGES: Before HANSEN, Circuit Judge, and HEANEY and ROSS, Senior Circuit Judges.

OPINION BY: ROSS

OPINION

[*954] ROSS, Senior Circuit Judge.

Appellants Mark Wilson and Janet Wilson, the parents of Anthony Wilson, and [*955] Jason Harbian and Daniel Winfrey, and their parents, appeal from the trial court’s 1 grant of summary judgment in favor of appellees United States of America and the Boy Scouts of America, in an action arising out of the death of Anthony Wilson and the injuries sustained by Jason Harbian and Daniel Winfrey.

1 The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri.

On April 22, 1988, Anthony Wilson, Daniel Winfrey and Jason Harbian, members of Troop 392 of the Boy Scouts of America, St. Louis Area Council, along with other boy scouts and five adult leaders, went to Fort Leonard Wood, a United States Army military post, on a boy scout trip as part of the Army’s Youth Tour Program. A pile of lightweight aluminum [**2] alloy irrigation pipes, approximately thirty feet in length, were stacked outside Building 1614, where the troop was billeted for the weekend. The pipes had been used for irrigation of the athletic field adjacent to the building, and when not in use, were stored alongside the building. The pipes had been stacked in this manner for approximately six years.

On the second night of their weekend stay, at approximately 10:30 p.m., Anthony, age thirteen, and five or six other scouts, ages twelve to sixteen, were outside Building 1614, while the leaders were inside the building. Anthony, Daniel and Jason picked up one of the aluminum pipes, carried it approximately twenty feet west of the building, and raised it to a near vertical position, causing the pipe to come in contact with a 7,200 volt power line which ran over the building. All three scouts received electric shocks; Anthony died as a result of the injuries he sustained.

Mark and Janet Wilson brought a wrongful death action against the United States pursuant to the Federal Tort Claims Act, and against the Boy Scouts of America (BSA) pursuant to Missouri state law, for negligent supervision and failure to train the adult supervisors. [**3] Sometime later the Harbian/Winfrey plaintiffs filed personal injury actions against both the United States and the BSA, and eventually these cases were consolidated with the Wilson case for trial. Motions for summary judgment filed by the United States and the BSA were eventually granted as against all appellants. 2

2 On December 4, 1992, following oral argument of the Wilson appeal before this court, the Harbian and Winfrey cases were consolidated with the Wilson appeal. All parties agree that these cases arose from the same occurrence and are identical in material fact and law. The Harbians and the Winfreys rely on the briefs and oral argument submitted in the Wilson appeal. The Wilsons, Harbians and Winfreys will be collectively referred to as “appellants.”

The appellants’ theory of recovery against the BSA is based on an alleged agency relationship between the BSA and the adult volunteers supervising the scouts. The district court granted the BSA’s motion for summary judgment, concluding [**4] that appellants failed to produce any evidence that the national organization of the BSA had a duty to control, supervise or train volunteer leaders for the Fort Leonard Wood activity. The district court also granted the United States’ motion for summary judgment based on its finding that the United States owed no duty of care to the scouts because they were recreational users of the property under Missouri’s Recreational Land Use Statute. See Mo. Rev. Stat. § 537.346. After careful consideration of each allegation raised by the appellants, we affirm the decision of the district court.

I. United States of America

The action against the United States arises [HN1] under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, thus, the “United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances.” Id. at § 2674. Further, the United States is “entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to the employee of the United States . . . as well as any other defenses to which the United States is entitled.” [**5] Id. Therefore, the United States is entitled to [*956] the benefit of state recreational use statutes, if applicable, when it is sued under the Federal Tort Claims Act. See Hegg v. United States, 817 F.2d 1328, 1329 (8th Cir. 1987) (construing the Iowa Recreational Use Statute); Umpleby v. United States, 806 F.2d 812, 815 (8th Cir. 1986) (applying North Dakota’s Recreational Use Statute).

[HN2] The Missouri Recreational Land Use Statute, Mo. Rev. Stat. §§ 537.345 – 537.348 immunizes landowners who make their property available for the recreational use of others without an entry charge. The statute specifically provides:

[HN3] Except as provided in sections 537.345 to 537.348, an owner of land owes no duty of care to any person who enters on the land without charge to keep his land safe for recreational use or to give any general or specific warning with respect to any natural or artificial condition, structure, or personal property thereon.

Id. at § 537.346. “Charge” is defined in the statute as:

[HN4] the admission price or fee asked by an owner of land or an invitation or permission without price or fee to use land for recreational [**6] purposes when such invitation or permission is given for the purpose of sales promotion, advertising or public goodwill in fostering business purposes.

Id. at § 537.345(1). “Recreational use” as defined in the statute includes outdoor activities, such as “hunting, fishing, camping, picnicking, biking, nature study [and] winter sports. Id. at § 537.345(4).

[HN5] While providing for a general immunity against liability, a landowner may nonetheless be liable if found to have been either maliciously or grossly negligent in failing to guard or warn against a dangerous condition which the owner knew or should have known to be dangerous, or if the landowner negligently failed to warn or guard against an ultrahazardous condition. Id. at § 537.348(1). Other exceptions to the nonliability of the statute include injuries occurring on or in any “noncovered land,” which is defined as land used primarily for commercial, industrial or manufacturing purposes. Id. at § 537.348(3)(d).

The appellants contend that the Missouri Recreational Land Use Statute does not apply to the United States because (1) the Army charged $ 2.00 per person to be billeted in Building 1614; (2) the United States [**7] receives an economic benefit from offering its land; (3) the Boy Scouts were not members of the “general public,” and thus were not covered by the Act; (4) the injury occurred on “noncovered land;” and (5) the United States negligently failed to protect against an ultrahazardous condition.

A.

Fort Leonard Wood is an open military post, where members of the public can freely enter without being stopped or questioned by guards or military police. Specified areas are open to the public for fishing, hunting, hiking, camping, picnicking or canoeing. Many tours are given to various groups, such as senior citizens and church and school groups, free of charge. The Fort also offers a Youth Tour Program which is open only to national youth organizations, such as the Boy Scouts of America. The program includes activities which are not available to the general public, such as visits to the Fort’s museum, an indoor rifle range, an obstacle course and a cannon range.

If a troop in the Youth Tour Program chooses to stay overnight in Building 1614, a $ 2.00 per person/per night lodging fee is charged. This fee covers the cost of maintaining and equipping the facility with mattresses, toilet paper, [**8] soap, and other supplies. If a troop chooses to stay overnight but no beds are available, the lodging fee is reduced to $ 1.00 per person/per night. Significantly, the lodging fee is charged on a per person/per night basis, while there is no charge for the tour itself, which is offered only on Saturdays.

The interpretation of the various recreational use statutes is controlled by the precise language of each statute. Courts that have construed recreational land use statutes with language similar to the Missouri statute have interpreted “charge” as ” [*957] an admission fee to enter the land.” For example, in Genco v. Connecticut Light and Power Co., 7 Conn. App. 164, 508 A.2d 58, 62 (Conn. App. Ct. 1986), noting that the Connecticut General Statute § 52-557f defines “charge” as “the admission price or fee asked in return for invitation or permission to enter or go upon the land,” the court held that “the only way to avoid inconsistent application of the Act . . . is to interpret the word ‘charge’ as an actual admission price paid for permission to enter the land at the time of its use for recreational purposes.” Id. (emphasis added).

Furthermore, a parking fee paid by [**9] a camper is not a charge within the meaning of the Nebraska Recreational Use Statute, which defines “charge” as “the amount of money asked in return for an invitation to enter or go upon the land.” Garreans v. City of Omaha, 216 Neb. 487, 345 N.W.2d 309, 313 (Neb. 1984) (emphasis added). In Garreans, the court noted that the

charges were made for the right to park a camper on a pad, for the right to pitch a tent in a tent camping area, and for the use of camper dumping facilities. Payment of the fee . . . did not entitle . . . [the person paying the fee] to a greater right to use any of the park’s other facilities than that had by the general public.

Id.

As in Jones v. United States, 693 F.2d 1299, 1303 (9th Cir. 1982), where a one dollar fee was charged the injured plaintiff to rent an inner tube for snow sliding, the fee paid by the scouts to bunk in Building 1614 was not “charged to members of the public for entry on to the land or for use of the land.” Id. Rather, the scouts paid the $ 2.00 fee to bunk in Building 1614, but entered the park without paying a fee. The Jones court held that the plaintiff [**10] “could have used . . . the Park without making any payment if she had brought her own tube.” Id. Similarly, the appellants could have used Fort Leonard Wood without making this $ 2.00 payment if they had chosen not to stay overnight. The Missouri statute does not provide that the immunity for an entire parcel should be nullified if a landowner charges for admission to a different portion of the parcel, nor would such a rule be consistent with the statute’s purpose. “Consideration should not be deemed given . . . unless it is a charge necessary to utilize the overall benefits of a recreational area so that it may be regarded as an entrance or admission fee.” Moss v. Department of Natural Resources, 62 Ohio St. 2d 138, 404 N.E.2d 742, 745 (Ohio 1980) (emphasis added).

The appellants herein paid $ 2.00 per night for the right to stay overnight in Building 1614. There is no evidence in the record to indicate that this fee would have been charged to either participate in the Youth Tour Program, or to enter Fort Leonard Wood, if the scouts had elected not to stay overnight. In fact, all of the Fort Leonard Wood documents relating to this fee provide that it is a “lodging” [**11] fee and that it is assessed on a per person/per night basis. The appellants have failed to present any evidence that the fee was required in order to enter Fort Leonard Wood.

B.

The remainder of appellants’ arguments with regard to the liability of the United States are also without merit. The appellants contend that the United States is outside the protection of the Missouri Recreational Land Use Statute because the scouts are not “members of the general public.” They contend that because only members of national youth organizations are eligible to participate in the Youth Tour Program, the scouts should be treated as guests or invitees. Appellants’ argument, however, relies upon a distinction not made within the language of the Missouri Recreational Land Use Statute. The plain language of the statute indicates that a landowner owes no duty of care “to any person who enters on the land without charge” for recreational purposes. Mo. Rev. Stat. § 537.346 (emphasis added).

We also reject the appellants’ argument that the United States is outside the protection of the Missouri statute because the Army’s purpose in allowing admission to Fort Leonard Wood is to develop public [*958] goodwill [**12] in fostering a business purpose. See Mo. Rev. Stat. § 537.345(1). When Boy Scout troops visit the Fort, they are not recruited or encouraged in any way to join the Army, nor are any records kept of scouts who have participated in the Youth Tour Program. Further, appellants have failed to establish that the Army operates as a business within the intended meaning of the statute.

Finally, appellants’ argument that Building 1614 was essentially a commercial “hotel” located in a “populated, residential area,” and therefore falls within the “noncovered land” exception of section 537.348(3)(d) is without merit. The record does not support appellants’ contention that the Fort was “predominately used for residential purposes,” nor that Building 1614 was operated as a commercial enterprise. Nor can we accept appellants’ argument that the United States acted with willful and wanton disregard for the safety of the troops or negligently failed to protect them against an ultrahazardous condition. There simply has been no evidence presented to establish either of these theories.

The judgment of the district court granting summary judgment in favor of the United States is affirmed.

II. Boy [**13] Scouts of America

The appellants also challenge the district court’s grant of summary judgment in favor of the Boy Scouts of America. The appellants contend there is a genuine issue of material fact as to whether an agency relationship existed between the BSA and the adult volunteers of Troop 392 so as to provide for vicarious liability for any negligence on the part of the adult leaders. The appellants claim the BSA had the right to control and supervise Troop 392’s adults, that the BSA is liable for the negligent acts of the troop’s adult leaders which were committed within the scope and course of their agency relationship, and further that the troop’s adult leaders were clothed with implied and apparent authority to act on behalf of the BSA when they were present at Fort Leonard Wood.

The appellants first argue that the district court improperly considered the affidavit of Lloyd Roitstein, Area Director in the North Central Region of the Boy Scouts of America, in considering the relationship between the national organization and the individual troops because the affidavit was not based on personal knowledge. We agree with the district court that Roitstein’s role as an Area Director [**14] establishes his personal familiarity with the Boy Scout organization and conclude that the affidavit was properly considered.

The Boy Scouts of America is a congressionally chartered benevolent national organization, which is divided into geographic areas known as local councils. Three hundred ninety-eight local councils are chartered in the United States. Local sponsors, such as schools, churches or civic organizations apply for charters from the BSA through their local council. Local volunteers form a patrol leaders’ council to plan troop activities. BSA does not conduct or require any training for these adult volunteers. Troops do not need permission from BSA before participating in activities, with the exception of tours outside the United States or five hundred miles or more from the local council. The BSA had no advanced notice of Troop 392’s trip to Fort Leonard Wood. The troop was not required, nor did it receive, permission from the BSA to go to Fort Leonard Wood.

[HN6] Under the doctrine of respondeat superior an employer is liable for the negligent acts or omissions of his employee which are committed within the scope of his employment. Light v. Lang, 539 S.W.2d 795, 799 (Mo. App. Ct. 1976). [**15] Liability based on respondeat superior requires some evidence that a master-servant relationship existed between the parties. Usrey v. Dr. Pepper Bottling Co., 385 S.W.2d 335, 338 (Mo. Ct. App. 1964). The test to determine if respondeat superior applies is whether the person sought to be charged as a master had “the right or power to control and direct the physical conduct of the other in the performance of the act.” Id. at 339. If there is no right to control, there is no liability.

Courts of other jurisdictions that have addressed the issue now before this court have rejected the imposition of liability against the BSA or the local councils, [*959] noting the lack of control these entities exercise over individual troops and their sponsoring organizations. For example, in Mauch v. Kissling, 56 Wash. App. 312, 783 P.2d 601 (Wash. Ct. App. 1989), the court found there was no basis for the doctrine of apparent authority because the plaintiff had not presented evidence that BSA consented to or had control of the scoutmaster’s activities. Id. at 605.

Similarly, in Anderson v. Boy Scouts of America, Inc., 226 Ill. App. 3d 440, 589 N.E.2d 892, 168 Ill. Dec. 492 (Ill. App. Ct. 1992), [**16] the court found the plaintiffs had failed to establish that an agency relationship existed between the plaintiffs and the local council or the BSA:

We find no provisions in the charter, bylaws, rules and regulations promulgated by the BSA, nor can plaintiffs cite to any provisions within these documents, which specifically grant BSA or its district councils direct supervisory powers over the method or manner in which adult volunteer scout leaders accomplish their tasks.

Id. at 894-95.

Recently, the Missouri Court of Appeals considered the Wilson’s cause of action against the St. Louis Area Council of the Boy Scouts of America, arising from the same circumstances of the instant case. The Missouri court dismissed the suit against the local council, finding that “Council neither controlled the actions of the troop leaders nor ran the program at Fort Leonard Wood.” While the Missouri state court decision involved the local council, it is instructional here because the relationship between the national organization and the individual troop leaders is even more remote.

Appellants also contend that sufficient facts establish a jury question as [**17] to whether a principal/agent relationship existed under a theory of implied agency or apparent authority. Implied agency and apparent authority, however, are based on manifestations by the principal which causes a third person reasonably to believe that an agent of the principal is authorized to do certain acts. Barton v. Snellson, 735 S.W.2d 160, 162 (Mo. Ct. App. 1987). Appellants contend the use of common uniforms, emblems, books and awards in the scouting program, a national insurance program, issuance of the national membership card and other printed materials locally, as well as other indicia of a relationship between BSA and the local council, create a manifestation of authority upon which an innocent third party might reasonably rely.

Appellants fail, however, to produce any evidence that BSA manifested that it had direct control over the specific activities of individual troops or that it had a duty to control, supervise or train volunteer leaders for the Fort Leonard Wood activity. On the contrary, the Boy Scout Handbook clearly provides, “what the troop does is planned by the patrol leaders’ council.” The organizational structure of the BSA [**18] leaves the control of the specific activities at the level closest to the individual troop. Appellants have produced no direct or circumstantial evidence to suggest that in this case BSA manifested control.

In summary, we conclude that the district court properly granted summary judgment in favor of the Boy Scouts of America and the United States. The judgment of the district court is affirmed.


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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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.

What do you think? Leave a comment.

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By Recreation Law       Rec-law@recreation-law.com              James H. Moss               #Authorrank

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