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BSA (Cub Scout) volunteer was not liable for injuries to cub because cub assumed the risk of his injuries. The BSA & Council were not liable because volunteer was not an agent.

A volunteer is not an employee or under the control of the sponsoring organization or BSA councils. Additionally, the plaintiff was injured due to an inherent risk of the sport and therefore the defendants owed him no duty because of the doctrine of primary assumption of risk.

Santho et al., v. Boy Scouts of America et al., 168 Ohio App. 3d 27; 2006-Ohio-3656; 857 N.E.2d 1255; 2006 Ohio App. LEXIS 3606

State: Ohio, Court of Appeals of Ohio, Tenth Appellate District, Franklin County

Plaintiff: Lynn and Rick Santho, on behalf of their son, Jamie Santho

Defendant: Boy Scouts of America, Simon Kenton Council, Prince of Peace Lutheran Church, and the Chiller Ice Rink

Plaintiff Claims: negligence, reckless/intentional conduct, respondeat superior, and loss of consortium

Defendant Defenses: Assumption of the Risk, No Duty

Holding: For the defendant

Year: 2006

A Cub Scout & his family went on a Cub Scout event at a skating rink. The Defendant volunteer of the Cub Scout Pack was a contractor for the skating rink, but not working at the time. She was a Den Mother in the Cub Pack.

The plaintiff played hockey. On the night in question, the plaintiff was racing with his friends, and he crashed into the boards suffering a concussion. The Defendant Ice Rink had rules that prohibited racing.

The plaintiff sued the Ice Rink, the Volunteer, the BSA Council and the Chartered Organization, a church.

The defendants filed various motions for summary judgment, but not all. A trial was held and at close of arguments, the court granted the defendant volunteer a directed verdict.

A directed verdict is one that after all the evidence has been presented at trial, the plaintiff has failed to prove their case, and the court directs a verdict for the defendant.

Motions for summary judgment and for directed verdict address the same issue, albeit at different times during the process of litigation. Whether in summary judgment proceedings or during trial, the ultimate issue under either Civ.R. 56 or 50 is whether the evidence is sufficient to present an issue for determination by the trier of fact. Summary judgment raises this question prior to trial; directed verdict raises the question during trial.  A court does not consider the weight of the evidence or credibility of the witnesses in ruling on either a motion for summary judgment under Civ.R. 56, or in ruling on a motion for directed verdict under Civ.R. 50. The question is whether there is sufficient evidence to create a genuine issue for a jury to decide.

The plaintiff appealed the directed verdict and various motions for summary judgment that were granted.

Analysis: making sense of the law based on these facts.

The appellate court started by reviewing the motions for summary judgment based on primary assumption of the risk. In Ohio, primary assumption of risk is a defense to claims for injuries from recreational activities.

Under the doctrine of primary assumption of the risk, an individual injured in the course of a recreational activity is presumed to have assumed the ordinary risks of that activity unless it can be shown that another actor acted recklessly or intentionally in causing the injury. The doctrine serves to remove liability for negligence under these circumstances.

Proof of primary assumption of the risk is a three-part test.

The test requires that: (1) the danger is ordinary to the game; (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.

The court found that it was foreseeable that anytime a person was ice skating or stepping on ice that falls or coming into contact with barriers was real.

There is no question that Jamie was participating in a recreational activity at the time he was injured. Falling is an ordinary danger of ice-skating. Colliding with the perimeter boards is an ordinary danger of ice rink skating. It was during the course of ice-skating and participating in the relay race that Jamie was injured.

In reviewing the facts of the defense presented and the arguments made supporting the doctrine of primary assumption of the risk, the age of the plaintiff as well as the knowledge of the plaintiff are not factors. Meaning in primary assumption of the risk there is no requirement to prove the plaintiff knew in advance of the risks they may encounter in the activity.

The appellant’s age and ability to appreciate the danger involved is immaterial to the doctrine of primary assumption of the risk. Only the conduct of defendant is relevant to recovery.

If the court finds that the doctrine of primary assumption of the risk has been found, then there is not negligence. That is because the first requirement to prove negligence, a duty, does not exist. If the recreational activity has risks, the plaintiff assumes those risks; consequently, there is no duty to protect the plaintiff from the risks on the part of the defendant.

However, a recreation provider ordinarily owes no duty to a participant or spectator of an active sport to eliminate the risks inherent in the sport. Here, Bennett organized the fun skate for Pack 210, as she had on several previous occasions. That was her main project for the pack. Therefore, Bennett qualifies as a recreation provider.

The next issue was whether the volunteer acted recklessly. In Ohio, recklessness is defined as:

The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Violating a rule or a statute is not enough to create a recklessness claim. Recklessness is an intentional act in creating a higher risk resulting in serious harm.

Furthermore, the Restatement notes that simply violating a statute or rule is not enough to constitute a reckless disregard for safety. The violation of the rule must (1) be intentional; and (2) be recognized as resulting in a significantly higher risk that serious harm will occur. A plaintiff cannot recover from any injuries that stemmed from “conduct that is a foreseeable, customary part” of the activity in which the plaintiff was injured.

Because the defendant volunteer did not increase the risk of harm by organizing the event or the race that injured the plaintiff, the defendant was not reckless. Nor did not require the plaintiff to wear a helmet constitute recklessness.

Appellants further argue that Bennett was reckless in not requiring Jamie to wear a helmet. No evidence was submitted to support this claim. Jamie’s father testified that he allowed his son to participate in the recreational skate without a helmet. Other testimony presented at trial showed that no fun skate participants were wearing helmets and that helmets are typically worn only while playing hockey. Finally, there was evidence that requiring helmets is not an industry standard.

The remaining defendants were part of the case because the plaintiff argued they were liable based on vicarious liability. There was no evidence that the defendant was an agent because they had no control over the volunteer defendant.

In contrast, there is no evidence to suggest that Bennett was acting as the agent of the BSA, SKC or POPLC. Bennett organized the family fun skate outside the framework of the BSA organization. The fun skate was held at a facility completely independent of the BSA. There is no evidence that the BSA, SKC or POPLC were aware of or had any control over the conduct of either Bennett or the fun skate. There is no evidence that Bennett acted as an agent of the Boy Scouts or any of the other organizations.

The ice rink was also not liable for the defendant based on the theory of respondeat superior. Respondeat superior states an employer is liable for the acts of its employee. However, at the time of the accident, the defendant ice rink was not paying or employing the defendant volunteer.

At the time of the fun skate, Bennett was not being paid by the Chiller. She was not acting as a rink guard. According to the evidence presented by the trial court, rink guards wore distinctive clothing that identified them in that capacity. There is no evidence that Bennett was acting as, or held herself out as a rink guard for the Chiller. Instead, the evidence supports only that Bennett was acting as a den mother of Pack 210 and organized the fun skate for Pack 210. She was there as a volunteer for Pack 210 and as a parent. Therefore, the trial court did not err in finding that there was insufficient evidence to show that Bennett was an agent of the Chiller and acting on behalf of the Chiller at the time Jamie was injured.

Because the volunteer defendant was found not to be reckless, the remaining defendants were not liable based on claims of vicarious liability.

So Now What?

The outcome of this case was first based upon an understanding of the relationship between a volunteer, the chartering organization, the BSA Council and the Boy Scouts of America by the appellate court. It is always important for the court to understand the legal relationship between the parties.

Volunteers are under the supervision and control, if any, of the chartering organization. The National Council of the Boy Scouts of America grants to the chartering organization the right to use its program. That grant is through, he local council who approves the chartering organization. Neither the National Council nor the local council have any real control over the volunteers the chartering organization approves.

Again primary assumption of the risk prevented the claims of the plaintiff because the plaintiff was participating in a sport or recreational activity and the injury the plaintiff suffered was an inherent risk of the sport or recreational activity.

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