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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I am speaking at the Outdoor Retailer Outdoor University, Winter Outdoor Retailer, Salt Lake City, UT

Wednesday January 23 at 10:30 AMBSA-logo

How to Bring Scouts Into Your Store: There’s Even an App for That!

You need to know how to work with scouts, how to get scouts into your store. There are 4 million Scouts camping 30  days a year. At present, their options are the BSA Supply and big-box stores. I have 40 years of scouting experience, as an employee & volunteer, and I can show you how to bring those kids into your store. The key is understanding the BSA program & its volunteers. Each week an adult volunteer working develops a program for the kids. If you develop programs that kids enjoy, a volunteer will gladly them to your store. The second issue is advancement. You have experts in your store in the areas that the youth of Scouting need to meet. For $5.00 a year you can be listed as a resource for all the scouts in your area. There’s even an app for it.

 

Wednesday January 23, at 1:30

The Outdoor Recreation Retail Store: Liability IssuesBSA On The Go

Retailers are faced with a myriad of problems today. Liability should not be one of them. When looking at a new product at OR the retailer needs to understand whether or not that product can be brought into a store and the issues. Once in a store the retailer needs to understand the disclaimer language on the product and how that needs to be dealt with. Next the retailer must understand any issues in selling the product. A new issue that retailers are going to face is a continuing duty to warn of issues after the sale. Between this new liability issue and recalls either mandated by the CPSC or voluntary, the retailer can be stuck between a rock and hard place or left holding the bag. At the same time, understanding the new duty can create an opportunity to collecting additional information from customers and market to them post sale. Renting outdoor product is always an issue. What information must go with the product when it is rented? What cannot be rented? (Nothing, as long as there is Hertz, we can rent stoves.) What should you do if you are named in a lawsuit?

See you there!

What do you think? Leave a comment.

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Decision explains the liability in New Hampshire of a land owner allowing kids to sled on their land

Reed v. National Council of the Boy Scouts of America, Inc., 2010 DNH 18; 706 F. Supp. 2d 180; 2010 U.S. Dist. LEXIS 9236

Decision was a rare case were lawsuit was not brought until after the injured minorHistory of the Boy Scouts of America reached age 18

In this decision, the plaintiff was an 11-year-old Boy Scout a camping trip. During the camp out the trip went sledding on a hill at a local Boy Scout Council camp. The

camp was not owned by a council that was not the chartering council of the scout troop. While sledding, the boys built a jump. Around lunch time the adult leaders left to go prepare lunch leaving the scouts unattended.

The court noted that this was in violation of the Guide to Safe Scouting, a set of procedures developed by the BSA to keep kids safer. (Safer, kids get hurt, it is part of growing up.)

The plaintiff sued the council that owned the camp, Boston Minuteman Council, the landowner and the National Council, BSA. The National Council grants charters to local groups, councils in a specific geographic area to offer the Scouting program to youth in their area. The local council, in this case Daniel Webster Council issued a charter to the group of parents who ran the troop the plaintiff was part of.

The court took note of the fact that neither volunteers scoutmasters nor the local council Daniel Webster Council.

The plaintiff was only 11 and the youngest scout on the camp out. He had watched other scouts go over the jump and fall. He had gone over the jump once when the scoutmaster was present and fell on his back but did not suffer any injuries. After the adult, volunteers left the area the plaintiff went over the jump again breaking his leg.

Summary of the case

The case has two major parts in the decision. The first is the decision over the land owner’s liability. The second is a motion in limine over the future or potential earnings and medical bills of the plaintiff. For the purpose of this article, the second part of the discussion will be ignored because it is not relevant.

The first point of interest in this decision is one sentence. The plaintiff did not sue until after he had turned age 18. Under the law a minor, someone under the age of 18 can sue by and through their parents in most states, any time after their injury, or they can wait until they turn age 18 and sue then. The parental lawsuit has a statute of limitation, in NH two years, because it is an adult suit on behalf of the minor child. The minor child when he reaches the age of majority, 18, then also has two years to sue after turning age 18.

The defendant land owner filed this motion for summary judgment based on the New Hampshire Recreational Use statute and fact the risk was an open and obvious danger.

The New Hampshire recreational use statute protects land owners from lawsuits brought by people who are using the land for free. The exception to the rule is if the injury to the plaintiff was caused intentionally by the land owner.

508:14  Landowner Liability Limited.

I. An owner, occupant, or lessee of land, including the state or any political subdivision, who without charge permits any person to use land for recreational purposes or as a spectator of recreational activity, shall not be liable for personal injury or property damage in the absence of intentionally caused injury or damage.

II. Any individual, corporation, or other nonprofit legal entity, or any individual who performs services for a nonprofit entity, that constructs, maintains, or improves trails for public recreational use shall not be liable for personal injury or property damage in the absence of gross negligence or willful or wanton misconduct.

III. An owner of land who permits another person to gather the produce of the land under pick-your-own or cut-your-own arrangements, provided said person is not an employee of the landowner and notwithstanding that the person picking or cutting the produce may make remuneration for the produce to the landowner, shall not be liable for personal injury or property damage to any person in the absence of willful, wanton, or reckless conduct by such owner.

The plaintiff argued the defendant land owner should be held liable because only scouts were allowed on the land; therefore, the land was not open to the public, part of the statute. Court held that the statute had latitude or a land owner would lose all control over his or her land. The court held that the landowner could not be held liable because it was protected by the New Hampshire recreational sue statute.

The second defense brought by the landowner was the “open and obvious” defense.

“a defendant generally has no duty to warn and instruct a plaintiff of obvious dangers about which the plaintiff’s knowledge and appreciation equal the defendant’s.”

The “open and obvious” defense is similar to an assumption of risk defense. If you can see or understand the dangerous situation on the land, then the landowner has no duty to warn you of the dangers.

The open and obvious defense requires that the dangerous condition be recognizable by the reasonable person. In the case of a minor the reasonable person test is changed to a reasonable person of the same age, intelligence and experience. A jump created by the other youth would have been obvious to the plaintiff even at age 11. Jumps are made to throw people into the air. Many courts have found that sledding and snowboarding over jumps is something a person of the plaintiff’s age, intelligence and experience should recognize so the court found that the defendant did not owe a duty to warn of the dangers of sledding or snowboarding over a jump.

So Now What?

This is an interesting and odd case. Not suing the local council or the scoutmasters is confusing. Waiting until the plaintiff turned 18 is even more confusing.

However, you can gain a few things from this case.

1.      If you are a volunteer unit leader understand the rules by which the parent organization expects you to operate and do not violate those rules.

2.    If you are a landowner who knows that people use your land for free without charging them for it, do two things.

a.     Make sure your state recreational use statute is broad enough to protect you from litigation.

b.    Make sure your liability policy provides you with coverage for allowing people to use your land.

Please, do NOT stop people from using your land, Please!

What do you think? Leave a comment.

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Way to go Primal Wear! and the Denver Area Council of the BSA!

Denver Cycling Wear Manufacturer Primal Wear is sponsoring a BSA Cycling Merit Badge Clinic

Cycling apparel maker teams up with Boy Scouts for Merit Badge and Jersey

Primal Wear has teamed up with the Boy Scouts of America, Denver Area Council for a merit badge clinic. The clinic will take place over 16 weeks and has been limited to 20 scouts. Courses and rides will be bi-weekly and will complete individual requirements of the merit badge per session. “It’s great being able to provide a cycling program for the Scouts with Primal, one of the recognized leaders in the cycling community.” Said Dave Whitner, Denver Area Council Program Director.

In addition to the cycling merit badge program, Primal has produced a cycling jersey that is available for purchase online at http://rec-law.us/M5JzaI. The jersey is a sport cut raglan design featuring the BSA logo. The proceeds from the purchase of the jersey go to benefit the Denver Area Council.

For Information on the 16 Week Program go HERE.

Merit badge (Boy Scouts of America)

Merit badge (Boy Scouts of America) (Photo credit: Wikipedia)

If you want to purchase the Denver Area Council Cycling Jersey with 15% of the proceeds go HERE.  It is a beautiful Jersey! Order a Jersey, look good when you ride and support Primal Wear and the Denver Area Council of the Boy Scouts of America.

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I think a Boy Scout fell of a ropes course and is suing because of it.

But it is really hard to tell from the article.

See Boy Scouts Sued Over 30-Foot Fall At Skymont Reservation
Here are the facts from the article.

Tyler and two other Scouts were participating in a vertical climb activity. While competing against one another, they would “strap on appropriate gear and climb a rope that is affixed to an adjoining cable approximately 30 feet in the air which runs over and through a cable and pulley system.”
The suit says Tyler had climbed to the top of the rope near the junction of the pulley and the cable when a staff member assisting with the competition “began to run out of rope.”
The complaint says, “The rope was not secured in any fashion, therefore, the staff member belayer was unable to safely negotiate Tyler from the top of the rope and instead Tyler fell thereby sustaining injury.”

I’m guessing that the scouts were on a ropes course, other than that I’m not sure what happened. It could be the lawyer did not understand and wrote the complaint this way or it could be the reporter did not understand. I suspect the lawyer did not understand.

Either way, $3.5 million is a lot of money for injuries that someone lived through who is not in a will chair.

What do you think? Leave a comment.

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Be Prepared now days means prepared to save a life and deal with the post-accident mess

Parents both congratulate and condemn BSA

A Scout was struck and killed by a lightening at a camp. His friend and fellow scout as well as an adult leader are being called heroes in their attempts to save his life. However after that point the response and dealings with the family seemed to have been botched or ignored.

The article quotes the following issues that occurred after the youth had died and the family had been called. “Rayborn” is the deceased scout’s father. 

“We are very upset and frustrated with all the miscommunications, beginning at the time when we got the first phone call that David had been struck by lightning,” Rayborn said in a public statement Saturday.

Rayborn said his family was told to meet the medical helicopter at the hospital, only to learn once there that their son was not on the flight because he had not survived.

Then, they had to wait 32 hours before they knew where David was or where he was being taken, Rayborn said.

So? So don’t be this stupid!

Knowing first aid and CPR is not enough now days. Your emergency plan should not list everything you should do, you won’t follow it anyway. It should list who should do what. The training should follow that specifically says you don’t do anything unless you know specifically what is going on. Here miscommunications left the parents of a dead youth waiting 32 hours to find out where their son’s body was.
A lot of people screwed up. How could you have the body of a minor on your hands and not expect family members to arrive quickly.

How could you not communicate with the family when the plans changed?
How could you not call and say your son is not on the helicopter.
How could you not send someone to the family to assist them in their time of need?
An adult and a youth are heroes in an attempt to save a life. However, after those things were messed up according to this article. 

See Families of two Scouts struck by lightning express frustration over their ordeal.

What do you think? Leave a comment.

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Denver Boy Scouts of America start a Cycling Program

Venturing Cycling

A partnership between the Denver Area Council and USA Cycling

What is the Venturing Cycling Program?

The Denver Area Council and USA Cycling see Venturing Crews as the ideal way to promote cycling year round and encourage physical fitness. The vision of the Venturing Cycling Program is to facilitate youth experiences in all aspect of cycling. Each crew will develop a program to teach proper skills and techniques to prepare their members to participate as a team in local rides and races. USA Cycling and the Denver Area Council will provide training support and guidance to crew leaders. Other program opportunities being developed are training rides with support from USA Cycling athletes and a competitive road cycling series for crews.
Check out the program guide for more information on joining or forming a crew.

Group Ride Announced

Join us May 14th for a Group Ride to kick off the BSA Ventruing Cycling program at the Stonegate LDS Building in Parker. The day starts at 9am with a short presentation followed by the ride. Be sure to bring your bike, helmet and water. The ride is open to all Venturing age youth and adults interested in cycling. Register online to reserve your place and download the event flyer to share with your friends.
For more information on the Venturing Cycling program contact:

For more information on the program or starting a cycling crew visit http://www.denverboyscouts.org/cycling.


Assistant Scoutmaster Suing for tree falling on his tent.

If you are tall standing in the woods and eventually die, you fall down. Don’t you think that is expected? 

A man is suing the Boy Scouts of America for the loss of a leg after a tree fell on him while he was sleeping. That is terrible, no doubt.

However, I am amazed at the number of suits about trees falling now days. Trees and branches have been falling forever. Jack London wrote about trees falling in 1903, and I’m sure other authors have done so earlier.

This is the third suit I’ve found recently about trees falling in the woods, and it is up there with lawsuits about bears and moose. At what point do people realize they are leaving the city and going into the country? The country is different than the city. The city was built by man, and the wilderness was not. Sue the builder!

The article says the rescue of the man was difficult. What do you expect he’s at a camp in a tent in the woods? It’s not called camping if you can drive up to the spot in a car….. Well maybe some people call that camping.

At what point are we going to take kids camping in a park and then eventually in buildings because it is too dangerous outside. Trees may fall down!

See Man who lost leg sues Boy Scouts
 
For other suits about trees falling see:
If a tree falls in the woods, is there someone around to start a lawsuit?
As soon as someone appoints me God, then and only then, will I be responsible for the trees around the lake.
 

What do you think? Leave a comment.

 
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Diver wins $1.68 million for being left at sea.

Five year lawsuit ended with a jury verdict in California. 

A combination of errors on the part of the diver and the charter left the 45 year old engineer in the ocean off long Beach California. But for luck, a passing Boy Scout sail boat and a 15 year old scout with binoculars the diver would still be in the ocean.

The plaintiff surfaced a long way from the diver vessel and was able to swim to the boat because of leg cramps. The dive master and boat captain marked him as present and on the boat before moving to another site, where he was checked off again.

He was found when a Boy Scout sailing vessel was passing nearby and a scout on board was scanning the ocean with binoculars. What first appeared to be trash, ended in a rescue of the diver.

See Engineer wins $1.68 million in scuba diving case
 

What do you think? Leave a comment.

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10 First Aid Myths

This Presentation was given at the 2010 Association of Outdoor Recreation and Education Conference at Keystone Colorado.

10 First Aid Myths
http://static.slidesharecdn.com/swf/ssplayer2.swf?doc=aoremed-101126114719-phpapp01&stripped_title=10-first-aid-myths-5924402&userName=JHMoss
What do you think? Leave a comment.

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Berlin v. Nassau County Council, Boy Scouts of America, 229 A.D.2d 414, 645 N.Y.S.2d 90

Rita Berlin et al., Respondents,

vs.

Nassau County Council, Boy Scouts of America et al., Defendants, and Hugh Brickley, Appellant.

95-05684

Supreme Court Of New York, Appellate Division, Second Department

229 A.D.2d 414, 645 N.Y.S.2d 90, 1996 N.Y. App. Div. Decision

July 8, 1996, Decided

Devitt, Spellman, Barrett, Callahan, Leyden & Kenny, LLP., Smithtown, N.Y. (L. Kevin Sheridan of counsel), for appellant. Hershman & Leicher, P.C., New York, N.Y. (Harold M. Hershman of counsel), for respondents.

Pizzuto, J. P., Santucci, Altman and Hart, JJ., concur.

{*414} Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the complaint and cross claims insofar as asserted against the appellant are dismissed, and the action against the remaining defendants is severed.

Brian Thomson acquired a slingshot from a store in Florida while on a trip with his Boy Scout troop. The appellant Hugh Brickley and the defendants Kenneth Bistyga and Philip Lembo were the chaperones for the trip. Brickley immediately confiscated the slingshot and did not return it to Brian until after the trip when he left Brian with his parents in Delaware. Approximately one week later, after the Thomson family had returned to New York, the infant plaintiff Daniel Berlin was injured when he and Brian were playing with the slingshot in Daniel’s backyard.

Any duty on the part of Brickley to supervise or control the activities of Brian terminated when he returned the child to {*415} his parents‘ custody (see, Purdy v Public Adm’r of County of Westchester, 72 N.Y.2d 1, 8-9; see also, Pratt v Robinson, 39 N.Y.2d 554, 560; Griffith v City of New York, 123 A.D.2d 830, 832). Even assuming that Brickley was negligent in returning the slingshot to Brian, the alleged negligent supervision by Brian‘s parents, who were fully aware that he possessed and was using the slingshot, was a superseding intervening cause which attenuated any negligence on the part of Brickley from the ultimate injury to Daniel (see, Nolechek v Gesuale, 46 N.Y.2d 332, 338-339; Elardo v Town of Oyster Bay, 176 A.D.2d 912, 914). Consequently, Brickley’s motion for summary judgment should have been granted.

Pizzuto, J. P., Santucci, Altman and Hart, JJ., concur.

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Adult volunteer responsibility ends when the minor is delivered back to his parents.

Thank heavens!

Berlin v. Nassau County Council, Boy Scouts of America, 229 A.D.2d 414, 645 N.Y.S.2d 90

A youth was on a trip with a Scout troop which is a program of the Boy Scouts of America (BSA). Sometime on the trip, the minor bought a slingshot. The slingshot was confiscated by a volunteer leader on the trip. At the end of the trip, the slingshot was given to the parents of the minor.

Later the minor was playing with the slingshot with another youth, and the other youth was injured by the slingshot. Either the minor had gotten the slingshot somehow or the parents had given the slingshot back to the minor, although this was not specifically stated in the opinion.

The parents of the minor injured by the slingshot, the plaintiffs, sued the volunteer adult leaders of the trip for the minor’s injuries.

The court in a succinct and short decision held the adult volunteers were not liable for the minor’s injuries. The basis for the decision was the action of the volunteer in giving the minor back to the parents was a superseding intervening act, which stops the claim.

A superseding act, eliminates the relationship between the damages which caused the injury and the duty owed. That means negligence cannot be proven. The damages are not proximate to the duty owed. Negligence has four parts, all which must be proven:

  • A duty
  • Breach of the duty
  • Injury
  • Damages proximately caused by the breach of duty.

The court’s decision says the fourth step cannot be proven because of the superseding act. The parents taking control of their child was an intervening act which the court said did not tie the duty and the damages to together legally. Stated another way, there was no relationship between the act of the volunteer and the injury received by the minor.

The plaintiffs seem to argue that the adult volunteer should not have given the slingshot back to the parents. However, the slingshot was a possession, a piece of property owned by the minor and as such, his parents. The slingshot was given back to the owners as required by the law.

So?

The relationship between a parent and a volunteer who is spending his or her time with the child is tenuous. As a volunteer you must be clear what your responsibilities are and are not going to be, as well as when that responsibility ends. It does not need to be so formal. It can simply be in the trip information that the kids have to be at the church by 7:00 PM and parents must pick their kids up Sunday at 2:00 PM at the church.

Most times, volunteers worry about injuries to the minor as a liability issue. There are other issues that can come up that you should be prepared to deal with.

Search and Rescue costs if a minor is lost can be substantial. (See No Charge for Rescue). Damages to property or injury to other minors can create liability for the adult volunteer responsible. A forest fire started by a minor can be costly. Even though most state courts will not allow a parent to release the claims of a minor for injuries, courts will allow releases or contracts where the parent agrees to pay for other claims the minor may create.

You can inform the parent and make sure they understand (meaning a written document) that they are responsible for any damages the minor may create for a reason other than injuries to themselves. I would include damages for the minor’s injuries on a different form. You do not want the court to throughout one release for the minor’s injuries when what you needed was protection for the damages done for the minors.

What do you think? Leave a comment.

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Looking for Eagle Scouts in the Outdoor Recreation Industry

SNEWS a subsidiary of Backpacker and Active Interest Media are doing a story of Eagle Scouts in the Outdoor Recreation Industry. 

If you are an Eagle Scout and working in the Outdoor Recreation Industry: Retail, Manufacturing, Media, Outfitting, Guiding, etc, send me an email at BSA.rec.law@gmail.com

Thanks

Jim

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Zip lines, BSA and Lawsuits

A 44 year old man took his children to a BSA Scout-O-Rama. At the event, he was the first adult to try the Zip Line. According to the complaint, instead of being attached to a metal ring, he was attached to a nylon thread that failed when he jumped off the tower.

He fell 25 feet suffering severe injuries. He is suing the Boy Scouts for his injuries.

See Boy Scouts Sued for Catastrophic Personal Injuries
 

What do you think? Leave a comment.

 
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Continuing Legal Disaster with the New BSA Annual Health and Medical Record

Normally when the media, volunteers and in some cases lawyers get involved in an issue things get better. However there is the old adage that it will always get worse before it gets better, which seems to be the rule with the new BSA Annual Health and Medical Record.

I first wrote about the BSA Annual Health and Medical Record in New BSA Medical Form is a Disaster. The second article I wrote is Response to Comments on the New BSA Medical Form. Here is the third.

The BSA attempted to answer some questions about the Annual Health and Medical Record at a FAQ website. Frequently Asked Questions Concerning the Annual Health and Medical Record. This article will try and clarify some mistakes the site makes.

There are some great sections and answers on the FAQ page. The answer “Q. Do I really need to explain everything about myself or my child, such as learning disabilities or depression? I don’t want myself or my child to be treated differently” Is very good. I was working at a summer camp and visiting the rifle range when a youth stood up with a loaded rifle. His parents had decided not to notify us of medication issues.

However in this day and age no one should have any social security number on any document. Health care will never be withheld for lack of a social security number.

Q. Why do I need to put my child’s or my own social security number on the record?
A.
It is your choice as to whether you fill in this number; however, in many states, medical care cannot be rendered without it.

The part of the form that is receiving the most news coverage is the new height and weight requirements. In effect the requirements ignore generally accepted medical research and are going to severely restrict Scouting. The FAQ restates that position.

Q. Our camp is at least 30 minutes from the local hospital by ambulance or EMS. Does this mean that we automatically have to meet the height/weight requirements for all activities at the camp?
A.
While response time for basic or advanced life support should be a consideration for a camp’s emergency action plan, it is not the record’s intent. If your travels by foot, bicycle, horseback, afloat, or whatever the mode of transportation take you more than 30 minutes off of an accessible roadway where in an emergency vehicle can reach you, you will need to meet the height/weight requirements.

The great comments about this part of the form are that most employees of the BSA national office supposedly won’t make the cut also.

Even worse, the requirements are based on a Body Mass Index (BMI) for men. Exploring has been coed since the 1970′s and Venturing since the 1990′s.


Letter to the Chief Scout Executive from a Volunteer

William A. Sheehan

24 SOUTH BROAD STREET

WOODBURY, NEW JERSEY 08096

(856) 853-8636

FAX NO. (856) 848-2230

March 25, 2009

Robert Mazzuca, Chief Scout Executive

1325 West Walnut Hill Lane

Irving, TX 75038

Re: New Annual Health and Medical Record Form

Dear Mr. Mazzuca:

I have had the opportunity to review the new annual health and medical record form, posted online at http://www.scouting.org/filestore/pdf/34605_Letter.pdf As an Assistant Scoutmaster, I am quite concerned about the effect upon my troop and upon the scouting program in general which will be caused by the red highlighted paragraph on page two of the form.

That paragraph states:

“Individuals desiring to participate in any high-adventure activity or events in which emergency evacuation would take longer than 30 minutes by ground transportation will not be permitted to do so if they exceed the weight limit as documented at the bottom of this page. Enforcing the height/weight limit is strongly encouraged for all other events, but it is not mandatory.”

I have two concerns. One is that making this height/weight chart mandatory rather than advisory will have the effect of excluding thousands or tens of thousands of youth already signed up in our program from participating in it, which will lead either to shrinking enrollments or widespread disregard of the “mandatory” language of the form. In this latter event, my second concern is the potential for opening our organization and our volunteers up to liability should they permit a youth to participate who exceeds the weight restrictions, and should an injury occur which could be arguably tied to the participant’s weight.

At the outset, I note that this prohibition is not imposed merely on activities strenuous in themselves. Rather, it extends to all activities taking place at a point more than 30 minutes from medical care by ground transportation. I submit that anywhere worth taking our youth can be more than 30 minutes away by ground transportation. In many parts of our country, a youth would be more than 30 minutes away from medical attention sitting in his living room, as a couch potato. Rather than getting out a map, a stop watch and calipers while planning an outing, I suggest that Unit leaders simply assume that they are more than 30 minutes away from medical attention for any scouting activity.

The cover sheet for the form identifies 11 risk factors which may define participation in various outdoor adventures. These 11 “risk factors” are not listed in alphabetical or any apparent order, with the exception that “excessive body weight” is at the top of the list, beating out such maladies as heart disease, diabetes, seizures, asthma and anaphylaxis.

A scout suffering from heart disease may be cleared by his physician to participate in hiking and camping, sports, cold weather activities (less than 10 degrees F), competitive activities, horseback riding, backpacking, scuba diving, wilderness/ backcountry treks, swimming/water activities, mountain biking, climbing/rappelling and challenge (“ropes”) courses provided that his physician, after physical examination, checks the boxes on page two of the form (the same page that contains the weight prohibition). Further, a scout with uncontrolled heart disease may participate in any of the activities checked off by his physician with any restrictions noted by that physician, also on page two of the form.

For a scout who is one pound over on the height/weight chart, however, it’s “no way, Jose”. The scout who does not make weight “will not be permitted” to participate in any activity whatsoever more than 30 minutes from medical attention.

Similarly, a scout suffering from asthma can participate in any of the above activities, at any distance from medical care, provided his physician, after examination, checks the box for that activity. Even a scout with “uncontrolled” asthma may participate with any restrictions the physician cares to note.

Along the same lines, a scout who has seizures may participate in activity his physician, after examination, checks off and even those with newly diagnosed seizure events (within six months) may participate with any restrictions the physician cares to note.

A Scoutmaster can take a scout with a sleep disorder, whose breathing stops from time to time during the course of a night, on any activity indicated by the physician at any distance from medical care. But don’t let that scout be a pound overweight.

A scout who suffers from allergies to the degree that he may suffer anaphylaxis may participate in any activity his physician checks off, at any distance from medical care.

With excessive body weight, and excessive body weight alone, the decision is removed from the hands of the physician, the boy’s parents and the scout leader. All because the form says, in big red letters, that the scout “will not be permitted” to participate in the activity.

Why is that? We all prefer our scouts to be fit and trim, but why is body weight elevated above all these other maladies in terms of participation in scouting events?

What this form says, in no uncertain terms, is that if a scout does not make weight, he or she (in the Venturing program) cannot participate. That is a heck of a note.

I read with interest the recent article in Newsweek magazine concerning the outreach to Hispanic youth. I also understand that you appeared on NBC Nightly News with Brian Williams concerning that initiative. Certainly nothing was mentioned that all of the outdoor activities of the Boy Scouts of America would be closed to such youth if they didn’t make weight. If a boy is a bit on the heavy side, he will have to be satisfied with the good citizenship parts of the BSA. Forget about the outdoor activities.

In my view, we do not need the negative publicity should a “weight ban” become public knowledge.

This is an organization that, quite rightly, promotes vigorous exercise in the out of doors. Are we to tell potential scouts that they cannot even begin this program of health and exercise unless they are already fit and trim?

The entire Venturing program is premised upon high adventure. Are we to have the members of each crew get up on a scale to separate those who can continue in the program from those who must be told to stay home? How about OA service weekends? Will there be a weigh in at the Friday night check-in?

At Blue and Gold dinners, when the Cub Scouts cross over a small bridge to symbolize their crossing over to the Boy Scout program, will there be a bathroom scale waiting for them at the end of the bridge?

Scouting is also a movement in which the youth participants are urged to follow the example set by the adult participants. Scoutmasters and assistants, themselves overweight, will be put in a position of informing overweight youth that the youth are absolutely banned from participating in the outdoor Scouting program. The overweight adult, in contrast, can simply pack up his pack and head off down the more than half hour trail, free as an “adult” to choose to ignore the mandate.

Or should overweight adult volunteers be banned as well? Good luck keeping the program running if that is the outcome.

What of a Unit leader who does not bar participation by youth who are a few pounds over. What if such a youth has a health problem during the activity which arguably bears some connection to his or her weight? Because the BSA erected a policy that did not exist before and put it all in red letters, that could become “the law of the case” and liability could be found. (I am an attorney licensed to practice in the State of New Jersey).

Leaving the legalities aside, assume a Unit leader allows participation when a youth does not meet the guidelines. Is such a youth to be turned away at district or council events, such as camporees or OA service weekends, or turned away at the gate of a council summer camp? Many council camps are remote, as I am sure you are aware.

I have not taken a survey, either in my troop or in my district or council, to determine how many boys are affected by this decree. Has the BSA made any such survey? If so, how many of our youth must be banned from the outdoor program? If you don’t know, don’t you think it is something that should be known before any such prohibition is mandated?

In my own troop, I know of one boy who had to be told that he could not participate in this summer’s council Philmont expedition, because of the weight limitation. He is a husky, healthy high school football player, a Life Scout working on his Eagle. Telling him he cannot make the “Summit of Scouting” is one thing. Must I inform him he cannot go on a weekend, drive-in, camping trip, simply because the troop will be camped more than one half hour from a hospital?

I hasten to add that I am in full agreement with the imposition of weight guidelines for the Philmont Scout Ranch. I am a veteran of two Philmont Expeditions in my youth and five Autumn Adventure Treks. I have made weight. I am also aware that making weight can be very difficult for some participants. However, we are not talking Philmont here, we are talking about a trip that is a half an hour into the woods.

It is fine to identify excessive body weight as a potential risk factor, require that a boy’s height and weight be recorded and compared to a chart, at the time of his physical examination, by his family physician, who may then take that into account in clearing him for the various activities on the form. What I object to is taking the decision out of the hands of the physician, the parent and Scoutmaster and drawing a bright red line which will exclude many of the kids we are trying to help rather than a common-sense approach. It seems like someone thought that excessive body weight could be addressed by simply issuing a decree, with the admonition that we in the field “make it so”.

A final observation is that the language used in the form does not talk about the actual weight of the participant at the moment the activity commences. It speaks of the height and weight “as documented on this form” as being the cutoff. I am not advocating that we weigh the boys before each trip. Weighing them fully clothed would not yield the results on the chart, in any event. But what of the youth who has dieted or exercised since the doctor’s exam or who has grown a few inches?

In short, I strongly recommend removing the red highlighted material at the top of the second page and removing reference to that paragraph on the cover sheet “…the height/weight chart must be strictly adhered to…”. Excessive body weight should be treated as any of the other illnesses or conditions listed on the cover sheet, in a place within the discretion of the physician, the participant’s parents and the Unit leader.

I wish to thank you for taking the time to read this letter and hope that it will have the effect of removing that red highlighted language. Please do not put me and others in a position of denying some youth the benefits of the Scouting program because they are not yet fit and trim. Hopefully, after a few hikes, they will do better with the weight situation.

Thank you for your kind attention to this matter.

Yours in Scouting,

William A. Sheehan

ASM, Troop 55

Pitman, NJ

WAS/kln

cc: Health and Safety Committee

Boy Scouts of America

National Council Health and Safety Committee

1325 West Walnut Hill Lane

Irving, TX 75038


New BSA Medical Form is a Disaster

Someone sent me a link to the latest BSA Medical Form.

It is quite interesting, very misleading, has limited additional value and put volunteers are greater risk of litigation. If you are interested here are the issues.

1. The form states that it has a hold harmless/release agreement attached. IT DOES NOT. There is language attempting to create a release and in three or four states it might. However most states require specific language to create a release and it does not exist in this document.

2. It places a requirement on unit leaders to know of and know how to treat the medical needs of the youth in their unit. The first issue is how much medical training is now needed to understand the issues. Worse however is the liability this creates? Example:

A. How about a new unit leader who just started who has not had time to take any first aid training. Kid at a meeting has a medical issue and the unit leader is now facing a lawsuit because he did not know about or know how to treat the kid.

B. What upper limit exists on the training? You have a child who requires advanced medical care. The parent reads the medical form, completes it and sues when her child dies. The unit leader was supposed to know about and know how to deal with the medical issues. In this case, the medical issues required an EMT or physician to deal the medical issues. Yet the mother relied, appropriately so on the medical statement to her detriment.

3. There is a 30 minute medical radius for medical care. This can eliminate most of Colorado as a place where a unit could go with someone who does not meet the medical transportation issues. Other than a few cities, all of Wyoming, Montana and Idaho are now off limits. Large portions of New Mexico, Arizona, Utah and most of Nevada are probably off limit to BSA units.

4. Prescriptions. This section creates a real problem that you need to deal with in writing. If any parent reads this and asks if you will assume the responsibility for any child taking their prescription medications say NO. If anything goes wrong and you have accepted this liability you are now liable. It may have nothing to do with what you have done, but combined with the required level of medical knowledge this is a ticking time bomb.

How to Deal with this?

Write ever parent in your unit and notify them that prescription and non-prescription medications will be their responsibility.

5. Release. The release is a poor start, but at least it is a start.

A. many courts throw out releases that are imbedded in other documents. The release needs to be separate and distinct.

B. The release needs to have a release of negligence. There is no lawsuit without negligence and this release in most states does not release negligence.

C. The medical information release is another good start, but it needs to specifically state what it is trying to do. Example

1. Unit leader takes crew on hike with assistant. Youth is inured and assistant hikes out with injured youth. Based on this release, is the assistant unit leader allowed to provide the medical information to the EMT? No. Medical information is confidential and this document does nothing to help volunteers in this matter.

D. Most importantly now in most states you are liable if you release medical information to anyone without their permission. That means before you can tell the Ambulance Squad attendant about the injury you have to have the parent’s permission to do so.

If the youth has a communicable disease you can’t tell anyone about in several states without their permission.

This medical release fails to provide that protection.

6. Notary. No state requires that a release or medical release be notarized.

Conclusion.

The major issue that will occur is the expectation this will place on parent. I tell my clients that the marketing creates promises that are proven breached in the courtroom. This is similar. The document is creating an expectation in parents that you cannot fulfill in a lot of cases. Failed expectations coupled with an injury are called lawsuits. You may win, but you will cost your homeowners’ insurance a lot of money to do so.


This is how a standard in the industry changes

It moves up because the best get better.

Many people believe that the standards of an industry change three basic ways.

#985 Airport not in Japan

#985 Airport not in Japan (Photo credit: Nemo's great uncle)

1.)    The entire industry gets better.

2.)    The bottom, or worst part of the industry gets better; or

3.)    Written standards are created that makes the industry get better.

All three are incorrect. (The third belief serves the opposite effect and usually promotes lawsuits.)

Standards change when the best get better and move the standard in the industry upward. It was recently reported that the Boy Scouts of America purchased AED’s for all of its offices and camps. That is an example of the standard changing for camps. It may not affect the youth the camps are designed and run for, however it will affect the adults at the camp.

Has this changed the standard of care for adults and visitors at camps?

In this case we have the largest promoter of camping in the US with 4 million members and more than 300 offices and close to 400 camps putting AED’s in their camps. This is a major move on the part of the industry. A significant, as measured by numbers or percentages of the industry now has AED’s at their camps.

If other youth camps, either based on this, or on their own start installing AED’s as their camps the standard in the industry is shifting towards or requiring having AED’s in camps.

The standard changed.

What do you think? Leave a comment.

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Scouts retain right to exclusive use of trademark

The Boy Scouts of America sued a California man over the use of the word Scouts. The defendant had started an organization called YouthScouts. The judge in the case upheld the BSA claim stating the charter granted by Congress in 1916 gave exclusive right to the use of the word “Scout” to the BSA. Because the organization attempting to use the word was also a youth group there would be a significant likely hood of confusion.

The defendant had started a youth group which was using Scouting similarities when his daughter was not allowed to join the Boy Scouts of America and he was unsatisfied with the Girl Scouts of America.

The BSA right to use of the word was exclusive to the BSA because of their trademark of the word Scout. The word also has special meaning, as evidenced by the attempt of politicians who always want a Scout in uniform standing behind them on TV. Scout like in society today means industrious, honest and always there to help.

Many people may look at this as a big organization giving a small one a hard time. But besides the real issue of confusion, the law concerning trademarks requires that you defend you trademark or lose it. Most companies have spent thousands of not millions of dollars developing trademarks you must sue or lose your investment.

See Judge nixes use of ‘scouts’ for coed youth club


Youth and Adult Molesters

Parks and Rec Business Magazine has a great article on background checks for adult volunteers of youth sports. It is a well written and well researched article that talks about an issue that is a common theme in many of my articles. The actions that people are taking only lull them into believing they are doing the right thing. In reality they are wasting time and money. The article Background Checks: Do they really get the job done? points out that most background checks are not going to find molesters.

What the article points out is no matter what an organization does, bad people are going to get through. In order to prevent this from happening, Parents must be involved in the process and keep their eye on the program and their children. Parents must make sure their child is never in a position where they can become a target. For an excellent discussion about this and a program to train kids see the Boy Scout of America program Guide to Safe Scouting. Several other sports organizations have developed similar programs.

From the Parent’s perspective you just can’t expect someone else to babysit your kids. No program whether sports oriented or program oriented is designed to work without the involvement of parents. The Boy Scouts of America requires the parent to agree to become involved when they sign their child up to be a scout. Dropping you children off and picking them up several hours later is a recipe for disaster both for you and your child.

For adult volunteers, be very wary of any parent who simply drops their kids off at your program. If you don’t know the parent, you will if something goes wrong and you won’t want too. The parents who sue are the ones who have no involvement in the program.

While investigating Boy Scout lawsuits I discovered one recurring theme. I boiled that analysis down to one simple question to determine whether or not a parent would sue for an injury to their child. The question? What is the name of the adult leader? If the parent answered Mr. Jones or Mr. Smith there was going to be a lawsuit. If the parents answered Bob or Jim then there was probably not going to be a lawsuit.

The difference was not the answer but how well the parents knew the person who was taking care of their kid and more importantly how well the parents were involved in the program. A parent who was involved in the program did not sue. Those parents knew how the program worked, invested their time in the program and were involved. Those parents knew the adult volunteer as a friend, as someone who invested their time and as such knew them by their first name.

Parents who were not involved did not understand the program, the work, the commitment the time it took adult volunteers to keep their child active and involved. Those parents were recognized more by their cars taillights because the only thing they saw was the parent driving away after dropping off the child.

Parents who are not involved or who do not understand the program are also the ones who will sue. They have no understanding of what the program is trying to accomplish or their understanding is superficial. They see a sports program as purely their child playing ball. They see the BSA or GSA as purely their child going camping. They have no concept of the time the volunteer invests. They do not understand the goals of the program and how those goals are achieved by the activity and not vice versa.

These parent’s kids are also the most likely to be molested because their parents are not around. A molester is looking for the kid that they can find alone. They stand out because they are out standing waiting to be picked up rather than being walked to their car by their parents.

Those programs can also be spotted by parents. Just as the victims are identified as being the ones left alone by parents, the problem adult volunteers are also alone. They seem to be the total and complete volunteer. They drive away or discourage help from other volunteers. They do not want help because it interferes with their ultimate goals.

Both types of people, children with no parental involvement and adults with no other parental involvement are possible problems.

 

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Another case where anger starts and continues a lawsuit.

Cheryl Swanson is appealing a lawsuit she is fighting pro se against the Boy Scouts of America. Pro Se means without an attorney. Swanson has all ready lost her case at the trial court level and at the Ohio Appellate Court. She claims she was injured at a Boy Scout Camp on a slip ‘n’ slide. She alleged received a traumatic brain injury.

Her first case and her appeal were dismissed because she had not filed her lawsuit within the time allowed. Legally, she had missed the statute of limitations. The statute of limitations is the time within which a lawsuit must be filed. In Ohio the statute of limitations to file a tort claim is two years. Tort is the name given to lawsuits filed for personal injuries. This suit was filed five years after the accident.

What is interesting is the plaintiff’s statements in the article. “…she filed the appeal because she’s right. “They were at fault,” Swanson said of the Boy Scouts organization. “They knew they were at fault and they’re dragging it out.” See Case against Scouts heads to higher court

This is an angry person. You read the article and it is clear where the anger comes from. You can read clearly that the anger is what is fueling this litigation.

Statutes of limitations are cut and dried and the plaintiff’s chance at success is nil in this case. She probably has been told that, but anger can fuel the energy to go up against an insurmountable fortress.


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