Scheck v. Soul Cycle East 83rd Street, LLC, 2012 N.Y. Misc. LEXIS 3719; 2012 NY Slip Op 32021(U)
Posted: March 30, 2015 Filed under: Health Club, Legal Case, New York | Tags: assumption of the risk, Inherent Risk, Manual, New York, Procedures, Release, Spin Class, Spinning Leave a commentScheck v. Soul Cycle East 83rd Street, LLC, 2012 N.Y. Misc. LEXIS 3719; 2012 NY Slip Op 32021(U)
[**2] Wolf Scheck and Lynn Scheck, Plaintiff(s), -against- Soul Cycle East 83rd Street, LLC d/b/a Soulcycle and Julie Rice, Defendant(s). Index No.: 104046/10
104046/10
SUPREME COURT OF NEW YORK, NEW YORK COUNTY
2012 N.Y. Misc. LEXIS 3719; 2012 NY Slip Op 32021(U)
July 26, 2012, Decided
August 2, 2012, Filed
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: bike, spin, cycle, wheel, brake, leg, assumption of risk, pedal, shoes, summary judgment, stationary, feet, gym, instructor, beginner, clerk’s, resistance, bicycle, spinner, front, heightened, sport, weighted, regular, street, online, minutes, rider, issues of fact, risks inherent
JUDGES: [*1] PRESENT: Hon. Judith J. Gische, J.S.C.
OPINION BY: Judith J. Gische
OPINION
Decision/Order
Upon the foregoing papers, the decision and order of the court is as follows:
Gische J.:
This is a negligence action for personal injuries. Now that issue has been joined and the note of issue was filed, defendants move for summary judgment. Plaintiffs raise the issue of the untimeliness of this motion, arguing that the motion was brought more than 120 days after the Note of Issue was served and filed.
CPLR 3212 provides that any party may move for summary judgment after issue has been joined and, If no date is set by the court, such motion shall be made “no later than [120 days] after the filing of the note of issue…” SCROLL (the Supreme Court Records On Line Library) shows that the Note of Issue was stamped “received” in the [**3] Trial Support Office on June 27, 2011, but the fee was paid and accepted by the New York County Clerk’s Office on June 29, 2011. Defendant’s motion was served by mail on October 26, 2011. A motion on notice is “made” when it is served (CPLR 2211). Papers are filed when they are delivered to the court clerk or the clerk’s designee (see Matter of Grant v. Senkowski, 95 N.Y.2d 605, 744 N.E.2d 132, 721 N.Y.S.2d 597 [2001]). Furthermore, [*2] not only does the Note of Issue have to be filed with the County Clerk, it must be accompanied by the payment of the appropriate fee, as prescribed by CPLR 8020 (Uniform Civil Rules for the Supreme Court and the County Court, 22 NYCRR 202.21).
Since the Note of Issue was paid for and filed with the County Clerk on June 29, 2011, and defendants’ motion was “made” on October 26, 2011, when it was served by mail, it was timely made within the 120 day statutory period (CPLR 3212 [a]; Gazes v. Bennett, 38 A.D.3d 287, 835 N.Y.S.2d 1 [1st Dept 2007]; see also, Nolan v. J.C.S. Realty, 79 AD3d 414, 910 N.Y.S.2d 906 [1st Dept 2011]). The motion, therefore, will be decided on its merits (CPLR § 3212; Brill v. City of New York, 2 NY3d 648, 814 N.E.2d 431, 781 N.Y.S.2d 261 [2004]).
Facts and Arguments
This action arises from events that occurred on December 25, 2009 (“date of the accident”) at “Soulcycle,” located on 83rd Street and Lexington Avenue in Manhattan during an indoor cycling class. The complaint alleges that Wolf Scheck was injured while in this “spin” class. According to Mr. Scheck, taking a spin class is not the same as just riding a regular street bicycle or stationary bicycle found at any gym. He did not, however, know this before he took the class. [*3] Mr. Scheck contends he was not properly instructed or supervised in how to use the equipment and that this constitutes negligence on the part of the defendants. Mr. Scheck denies he assumed the risk of [**4] injury just by participating in the class. He claims that the danger of this activity was not readily apparent to the casual observer and was increased by the defendants’ actions.
Defendants are Soul Cycle East 83rd Street, LLC (“Soul Cycle”), the company that owns, maintains, operates, etc., the Soul Cycle facility where the accident is claimed to have occurred and Julie Rice (“Rice”), a member of the Soul Cycle LLC. Defendants contend they are entitled to summary judgment dismissing the complaint because Mr. Scheck, by voluntarily participating in Soul Cycle’s spin class assumed the risks inherent to the participation of that recreational activity, thereby relieving them of any duty to prevent the type of accident he complains of. Defendants deny they improperly instructed Mr. Scheck in the use of the equipment. Defendants seek the dismissal of all claims against Ms. Rice on the basis that she was not personally involved in the happening of the accident and there are no factual allegations [*4] against Ms. Rice individually. They maintain she is corporate officer.
Mr. Scheck and Mrs. Scheck1 were each deposed about the accident. Mr. Scheck testified at his EBT that his wife suggested they try a spin class. Mrs. Scheck testified at her EBT that friends had told her how they lost weight “spinning” and she was eager to try it. Neither of the Schecks had any idea what it meant to “spin” or what kind of bicycle was involved. Both of them, however, have regular exercise routines. Mr. Scheck is a two-time marathon runner, he does weight training and plays tennis. Each of the Schecks has a gym membership and has belonged to other gyms in the past.
1 Mrs. Scheck has a derivative claims for loss of consortium/services.
Mrs. Scheck registered the couple for the class online after calling the facility and [**5] asking some questions. She was told on the phone they should come to class 15 minutes early so staff could go through “the whole [regimen] for you and explain everything carefully, because I said I don’t want there to be anything that goes wrong.” When Mr. Scheck arrived for the spin class, his wife was already there. He did not check himself in or do anything other than put his things [*5] in a locker. Mrs. Scheck testified that when she arrived, she learned that Soul Cycle showed only one of them was registered for the class, even though she had payed online for two participants. Apparently that was corrected and both Mr. and Mrs. Scheck were allowed to take the class.
Once inside the classroom, a female employee approached them and asked whether they had done a spin class before. Each of them said no. Mr. Scheck testified this person suggested they sit in the back because it might be easier for them to watch what everyone else was doing. This person told Mr. Scheck to get on the bike while she adjusted the seat for him. She also showed him where the brake was, but not how to use it. Mr. Scheck testified that he did not test the brake out to see how it worked. This process took about two (2) minutes. Noticing that he was not wearing the correct shoes, the female employee told Mr. Scheck to go get bike shoes from the front desk, which he did. These shoes (later described by others who were deposed), have a cleat that locks the rider’s shoes to the pedals, preventing their feet from slipping off.
The female employee who taught the class, later identified as Marybeth Regan, [*6] was someone different than the person who had shown Mr. Scheck the equipment. Ms. Regan was seated at the front of the class on a raised platform. Once the class was under way, some of the cyclists started pedaling very fast. Mr. Scheck, however, [**6] maintained a slow pace, pedaling very slowly. Five (5) or ten (2) minutes into the class, the instructor told the cyclists to stand up for the next exercise. Scheck obliged and as he raised himself with his right leg elevated and his left leg extended, “the machine grabbed my [right] leg and pulled it around…” The pedals kept revolving, almost on their own, all the while with Scheck’s feet strapped in. Scheck heard a “pop” and intense pain. One or two persons help extricate him from the bike and he was taken to the hospital by ambulance. He later discovered he had torn the quadriceps muscle in his right leg.
Madison Warren worked at the 83rd Street facility. She was the front desk associated on the day of the accident. Ms. Warren testified at her EBT that there were only three (3) people working that day, including herself, because it was Christmas Day. Ms. Warren was asked about the procedures for purchasing classes online and what new [*7] spinners usually do when they arrive for a class. According to Ms. Warren, new spinners are asked to sit in back of the class and this is reflected in a sheet showing that the Schecks were moved from one set of bikes to another in the back. She also testified that when purchasing classes online, someone can buy more than one class, or classes for more than one person. It is required, however, that the person making the purchase check a box indicating s/he has seen the waiver before s/he can complete the transaction. A hard copy of the waiver is at the front desk and participants are asked to sign and initial them upon arrival. Ms. Warren did not know whether Mr. Scheck was handed a hard copy of the waiver when he arrived for the spin class. No log of who trains each new person is maintained by the facility, Generally, the instructor teaches to the skill level of the class: if there are many beginners, the class is easier. Regardless, of the overall skill level, instructors usually warn beginners not to get up out [**7] of the saddle. Ms. Warren testified that there is a training manual instructing staff on what to do with beginner/new spinners. Among the instructions is; 1) offer them water, [*8] 2) provide free shoes, and 3) set up the bike for them. It is also required that the resistance knob and brake mechanisms be described and the new rider is instructed to “stay in the saddles if they’re uncomfortable.” Ms. Warren does not recall who assisted Mr. Scheck that day and the two employees who worked there on the day of the accident are no longer with the company.
Ms. Regan, the Soul Ccycle instructor, recalls helping Mrs. Scheck get her bike ready for the class and spending a lot of time with this particular student. She testified she has a “spiel” she gives to beginners, consisting of how to use the resistance, where the emergency brake is and assuring them that there is no need to keep up with anyone else. Although she gave these instructions to Mrs. Scheck, she does not recall telling Mr. Scheck the same thing. Ms. Regan states she always asks beginners to raise their hand so she can spot them and keep an eye on them. She does not recall whether Mr. Scheck raised his hand or, if he did, whether she saw him.
Ms. Warren and Ms. Regan were each separately asked to describe the differences between a spin bike and a stationary bike. Ms. Warren responded that, unlike a regular [*9] bicycle, a spin cycle has a single fixed wheel. Unlike a regular stationary bike, each pedal will result in one revolution of the wheel. Ms. Warren testified that she had never ridden with anyone else who had used a similar bicycle. So long as the front wheel is spinning. The only way to stop the wheel from turning, and the pedals from turning as well, is to use the break. A rider cannot keep both feet still [**8] and let the wheel spin. Just pushing with your feet to attempt to stop the wheel Is futile “unless you have very strong legs.”
Ms. Regan testified that instructs beginners that the bike has a weighted wheel and “you know [how] on a bike you can coast and stop your legs, Not on this. It’s a weighted wheel, so if you stop your legs you’re going to keep going. So you need to either turn the resistance up, or push down on the brake.” standing up in the saddle, it is important that a rider not lean on the handlebars because “you can fall forward…” She also stated that the special shoes Mr. Scheck was wearing bound his feet to the pedals and, if you fall forward, “the legs would keep going…” from the momentum “until you push down on the brake.” Ms. Regan specifically recalled that [*10] did not give these instructions to Mr. Scheck or tell him that “righty tighty” is how resistance is increased. According to Ms, Regan, this is an Instruction she gives on an individual basis, not to the entire class. When asked whether the spinner had specific instructions or warning on it, setting forth these precautions, Ms. Regan replied “no.” She also testified that the weighted wheel bike looks different than a stationary bike.
Applicable Law
On a motion for summary judgment, it is the movant’s burden to set forth evidentiary facts to prove its prima facie case that would entitle it to judgment in its favor, without the need for a trial (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]). The party opposing the motion must demonstrate, by admissible evidence, the existence of a factual issue requiring a trial of the action, or tender an acceptable excuse for his/her/its failure so to do (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]).
[**9] Discussion
While the parties basically agree on the law, they dispute its application to the facts at bar. Plaintiff contends that by all appearances, the spin bike he voluntarily agreed to use during his class looks like any other stationary [*11] bike and that when he signed up to take a spin class he assumed It was like riding any other stationary bike he had seen in other gyms. Thus, his argument is he assumed a lower risk than it turned out to actually be. Taking this argument further, plaintiff urges the court to deny defendants’ motion because he did not assume the more heightened risk and, therefore, the doctrine of implied assumption of risk applies. Plaintiff cites extensively to the Court of Appeals opinion in Trupia v. Lake George Central School Dist. (14 NY3d 392, 927 N.E.2d 547, 901 N.Y.S.2d 127 [2010]), Trupia involved a 12 year old student enrolled in a summer school program. The child was injured when, while attempting to slide down a banister, he fell off. In the Court of Appeal’s lengthy opinion Chief Judge Lipmann wrote that:
We do not hold that children may never assume the risks of activities, such as athletics, in which they freely and knowingly engage, either in or out of school–only that the inference of such an assumption as a ground for exculpation may not be made in their case, or for that matter where adults are concerned, except in the context of pursuits both unusually risky and beneficial that the defendant has in some nonculpable [*12] way enabled.
Plaintiff maintains, based on this language, that the doctrine of the assumption of risk is no longer a complete bar to recovery, except in very limited circumstances which are not present in this case. Defendants, on the other hand, urge the court to apply the doctrine of primary assumption of risk. The doctrine of primary assumption of risk is [**10] commonly applied in situations involving sports, both amateur and professional. A key distinction in these doctrines is that CPLR 1411, which addresses issues of comparative negligence, is applicable by its terms to implied assumption of risk (Abergast v. Board of Education, 65 NY2d 161, 480 N.E.2d 365, 490 N.Y.S.2d 751 [1985]) whereas a voluntary participant in a sporting event assumes the known risks normally associated with that sport (see Morgan v. State of New York, 90 N.Y.2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]). Thus, defendants argue Mr. Scheck knew or should have known, and therefore consented to the foreseeable consequences of his participation in the spin class (Turcotte v. Fell, 68 N.Y.2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]).
Plaintiff’s interpretation of the Trupia decision is unduly restrictive and ignores other, important language in that decision:
We have recognized that athletic and recreative [*13] activities possess enormous social value, even while they involve significantly heightened risks, and have employed the notion that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise. We have not applied the doctrine outside of this limited context and it is clear that its application must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation…
It is clear from the rest of the Trupia opinion that the doctrine of primary assumption of risk was not a possible defense for the defendant-school because the injury producing activity was unsupervised “horseplay” (i.e. school negligence) not an activity normally associated with the heightened risks attendant to sports activities. The Court did not, as plaintiff suggests, sweep away a legion of cases in which courts have [**11] recognized that certain sport activities present significantly heightened risk of injury. This point is evident from the Court of Appeals’ more recent decision in Bukowski v. Clarkson University (19 NY3d 353 [2012]). Bukowski involved a student whose jaw was broken [*14] when he was struck in the face with a baseball. The accident occurred when, for the very first time, he was pitching live in a cage. The court affirmed dismissal of plaintiff’s case because “there was insufficient evidence from which a jury could have concluded that plaintiff faced an unassumed, concealed, or even enhanced risk . . .”
A participant in a recreational activity will not, however, be deemed to have assumed unreasonably increased risks (Morgan v. State, 90 NY2d 471, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997] [player tripped on torn net]). Furthermore, the defendant has a duty to make the conditions as safe as they appear to be (Gortych v. Brenner, supra, citing Turcotte v. Fell, 68 NY2d at 439). Thus, when measuring the defendant’s duty to a plaintiff, the risks undertaken by the plaintiff also have to be considered (Turcotte v. Fell, supra at 438).
Mr. Scheck agreed to take a spin class that was led by an instructor in a gym like setting. He provided shoes he was unfamiliar with, the seat was adjusted for him and he was given preliminary instructions about how the resistance on the bike worked. He was also shown the brake on the bike. No one explained the relationship between the tension knob, the brake and [*15] how the weighted wheel worked, although the instructor and Ms. Warren each acknowledged the uniqueness of the bikes used at the facility. The entire instructional phase took two minutes, even though the person assisting him knew he was new to the class and had never “spun” before. The Soul Cycle training [**12] manual requires that new spinners be given certain preliminary instructions that apparently were not provided to Mr. Scheck.
A participant in a sporting activity is held to have consented to the risks inherent in it “[i]f the risks of the activity are fully comprehended or perfectly obvious” and that “participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation” (Turcotte v. Fell, supra at 439). There is appellate authority that use of a gym facility is not participation in a sporting event (Corrigan v. Musclemakers Inc., 258 A.D.2d 861, 686 N.Y.S.2d 143 [3rd Dept 1999]; Petretti v. Jefferson Valley Racquet Club, Inc., 246 A.D.2d 583, 668 N.Y.S.2d 221 [2nd Dept 1998J). Furthermore, where the plaintiff is a neophyte, the level of his or her experience is taken into account (Petretti v. Jefferson Valley Racquet Club, Inc., supra). [*16] Although the doctrine of primary assumption of risk has been applied in a recreational setting where a biker is injured (Gortych v. Brenner, 83 A.D.3d 497, 922 N.Y.S.2d 14 [1 Dept 2011]; Cotty v. Town of Southampton, 64 A.D.3d 251, 880 N.Y.S.2d 656 [2nd Dept 2009]), a primary distinguishing factor is that those cases involved bikers pedaling outdoors and their injuries were due to a defective condition on the road or path they were on. In each of those cases, defendants were denied summary judgment because they failed to make a prima facie showing that the primary assumption of risk doctrine was applicable to the activity in which the plaintiff was engaged at the time of his or her accident.
In this case, defendants have failed to prove, as a matter of law, that plaintiff [**13] assumed the risks inherent in participating in a spin class. Not only were plaintiff’s feet clipped into pedals, the pedals continue to move even though he wanted to stop them from moving. Mr. Scheck stated that once he was propelled over, he could not reach the brake because it was under his body. Plaintiff has raised triable issues of fact whether the activity he agreed to participate in was as safe as it appeared to be and whether he assumed the [*17] risks which he was subjected to (Petretti v. Jefferson Valley Racquet Club, Inc., 246 A.D.2d 583, 668 N.Y.S.2d 221 [2nd Dept 1998]). There are also triable issues of fact whether the defendants properly instructed him in how to use the equipment. Therefore, defendants’ motion to dismiss the complaint against Soul Cycle is denied.
Defendants’ motion to dismiss the claims against Ms. Rice is granted, as plaintiff has presented no argument about why that branch of their motion should be denied. No factual claim is made that she was involved in the accident or that she acted outside her capacity as a member of the company. Therefore, the claims against Ms. Rice are hereby severed and dismissed in their entirety.
Conclusion
Defendants’ motion for summary judgment is granted only to the extent that the claims against Ms. Rice are severed and dismissed. The balance of defendants’ motion for summary judgment is, however, denied not only because Soul Cycle has failed to prove it is entitled to such relief as a matter of law, but also because there are triable issues of fact. The issue of the timeliness of this motion is decided in favor of the defendants and plaintiff’s objection to this motion as untimely is denied.
[**14] [*18] This case is ready to be tried. Plaintiff shall serve a copy of this decision and order on the Mediator who is assigned to this case and also on the Office of Trial Support so the case can be scheduled for trial.
Any relief requested but not specifically addressed is hereby denied. This constitutes the decision and order of the court.
Dated: New York, New York
July 26, 2012
So Ordered:
/s/ Judith J. Gische
Hon. Judith J. Gische, JSC
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Strawbridge, Jr. v. Sugar Mountain Resort, Incorporated, et al., 152 Fed. Appx. 286; 2005 U.S. App. LEXIS 23459
Posted: March 28, 2015 Filed under: Legal Case, North Carolina, Ski Area, Skiing / Snow Boarding | Tags: Punitive damages, Settlement, Settlement Agreement, Sugar Mountain Resort Leave a commentStrawbridge, Jr. v. Sugar Mountain Resort, Incorporated, et al., 152 Fed. Appx. 286; 2005 U.S. App. LEXIS 23459
Vincent F. Strawbridge, Jr.; Rebecca S. Strawbridge, Plaintiffs – Appellants, versus Sugar Mountain Resort, Incorporated; B. Dale Stancil, individually; The Sugar Mountain Irrevocable Trust; The B. Dale Stancil Irrevocable Trust, Defendants – Appellees.
No. 04-2250, No. 04-2331
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
152 Fed. Appx. 286; 2005 U.S. App. LEXIS 23459
September 19, 2005, Argued
October 28, 2005, Decided
COUNSEL: ARGUED: R. Hayes Hofler, III, HAYES HOFLER & ASSOCIATES, P.A., Durham, North Carolina, for Appellants/Cross-Appellees.
Wyatt Shorter Stevens, ROBERTS & STEVENS, P.A., Asheville, North Carolina; James Robert Fox, BELL, DAVIS & PITT, P.A., Winston-Salem, North Carolina, for Appellees/Cross-Appellants.
ON BRIEF: Daniel B. Hill, HAYES HOFLER & ASSOCIATES, P.A., Durham, North Carolina, for Appellants/Cross-Appellees.
Jennifer I. Oakes, BELL, DAVIS & PITT, P.A., Winston-Salem, North Carolina, for Appellees/Cross-Appellants B. Dale Stancil, The Sugar Mountain Irrevocable Trust, The B. Dale Stancil Irrevocable Trust.
JUDGES: Before WILLIAMS and MICHAEL, Circuit Judges, and James C. DEVER, III, United States District Judge for the Eastern District of North Carolina, sitting by designation.
OPINION
[*287] PER CURIAM:
This is an appeal from a defense verdict [**2] in a case brought by Vincent and Rebecca [*288] Strawbridge against Sugar Mountain Resort, Inc. (SMR), its alleged alter-ego, B. Dale Stancil, and two trusts created by Stancil. (We will refer to the defendants as SMR and Stancil.) Mr. Strawbridge was injured in a skiing accident at the SMR resort. The Strawbridges contend that the district court erred in refusing to allow them additional voir dire or grant a new trial after the defense’s voir dire allegedly revealed that two jurors had failed to respond to an important question posed by the Strawbridges during their voir dire. The Strawbridges also claim that the district court erred in excluding evidence about rocks at the site of Mr. Strawbridge’s accident. Alternatively, the Strawbridges argue that the district court abused its discretion in refusing to enforce a settlement agreement allegedly reached before trial. Finding no error, we affirm.
I.
The Strawbridges allege that on January 22, 1998, Mr. Strawbridge skied over a ledge at SMR’s resort, where he hit a bare spot of dirt, lost control, and fell. Mr. Strawbridge sustained serious physical injuries. In their complaint, filed April 22, 2002, the Strawbridges asserted claims [**3] of negligence and loss of consortium and sought both compensatory and punitive damages. Stancil was named as a defendant on the theory that SMR was his alter ego. Stancil’s presence as a defendant was of moment because SMR carried only $1 million in liability insurance.
SMR and Stancil filed motions for summary judgment on December 1, 2003, and the motions were referred to the magistrate judge. The magistrate judge held a hearing on these motions on February 4, 2004, and two days later, on February 6, filed a memorandum recommending the award of summary judgment to the defendants on all claims. After considering the magistrate judge’s recommendation de novo, the district judge granted summary judgment to SMR on the Strawbridges’ request for punitive damages, but otherwise denied the summary judgment motions. Strawbridge v. Sugar Mountain Resort, 320 F. Supp. 2d 425 (W.D.N.C. 2004).
In the meantime the parties had been involved in settlement negotiations. Prior to the February 4, 2004, summary judgment hearing, the Strawbridges demanded $8 million to settle their claims. Wyatt Stevens, the lawyer for SMR’s insurer, made a $450,000 counteroffer, which the Strawbridges [**4] rejected. Shortly after the February 4 hearing, a lawyer retained directly by SMR, Robert Riddle, asked the Strawbridges to reconsider settlement.
The parties dispute the facts concerning subsequent settlement negotiations. According to the Strawbridges’ lawyer, Hayes Hofler, at approximately 11: 00 a. m. on February 6, 2004, Riddle made an offer to settle for the policy limits of $1 million, and Hofler accepted on behalf of the Strawbridges. The Strawbridges allege that, after accepting, Hofler asked Riddle if the payment could be structured as loss of future income in an effort to avoid a $400,000 lien arising from Mr. Strawbridge’s medical bills. The Strawbridges claim that Riddle responded that he thought that approach would not be a problem and that he would discuss it with Stevens. SMR disputes this account. It claims that Hofler indicated that his clients (the Strawbridges) would accept the policy limits of $1 million on the condition that payment be structured as loss of future income. SMR insists that because it never accepted this condition, the parties never reached a settlement agreement.
In any event, later in the day of February 6, before Stevens responded to Riddle [**5] about payment structuring, Stevens learned that the magistrate judge recommended [*289] dismissal of the case. Shortly thereafter, Stevens contacted Riddle and told him that a $1 million settlement, with the structuring condition, was unacceptable. Around 5:00 p.m. Hofler (on behalf of the Strawbridges) left a telephone message for Stevens in an effort to confirm settlement. Stevens returned Hofler’s call around 5:30 and told him that Riddle did not have authority to settle the case in light of the Strawbridges’ request to structure payment.
In March 2004 the Strawbridges, claiming that a settlement agreement had been reached, filed a motion to enforce it, and the district court held a hearing. After considering the lawyers’ oral representations, their affidavits, and transcripts of some of the telephone calls at issue, the court found that no settlement had been reached because the parties never agreed to all material terms of settlement.
The case proceeded to trial on July 12, 2004. During voir dire the judge asked the jury panel some preliminary questions related to possible bias, including: “Do[any] of you have any prejudices or biases that you know of that would affect your ability [**6] to sit in a case of this kind involving a ski incident, just simply by the reason of the nature of the sport or exercise, whatever you wish to call it?” J.A. 1131. There was no affirmative response. Later, the Strawbridges’ lawyer asked the panel:
Do any of you have anybody, family, close family, relatives, children, who is in any way involved in the ski industry, not necessarily on the slopes themselves, but maybe providing supplies to a resort or making deliveries to a resort or going there to make repairs, that kind of thing, in any way that might be remotely connected with the ski industry?
J.A. 1144. There was no response. The Strawbridges passed on the panel, and the defense side began its questioning. Defense counsel asked whether any of the jurors knew anyone closely connected with the ski industry. Juror Nicholson responded that the president of the company for which he worked was a volunteer ski patroller who might have worked for SMR. Juror McDonald reported that the son of one of her best friends owns a local ski shop. When defense counsel passed on the panel, the Strawbridges requested that voir dire be reopened to allow them to inquire of jurors Nicholson [**7] and McDonald. This request was denied. At the close of evidence the Strawbridges moved to strike jurors Nicholson and McDonald, and this motion was denied. The jury returned a verdict for the defendants on the seventh day of trial, and the district court later denied the Strawbridges’ motion for a new trial that was based on the claim of inadequate voir dire and juror bias.
The Strawbridges appeal the adverse rulings discussed above. SMR cross-appeals the district court’s refusal to give a jury instruction on assumption of risk, and Stancil cross-appeals the court’s denial of his motion for summary judgment on the alterego issue.
II.
A.
The Strawbridges contend that the district court erred in refusing to reopen voir dire. They insist that the failure of the two jurors (Nicholson and McDonald) to provide pertinent information in response to their question about ties to the ski industry prevented them from intelligently exercising their peremptory challenges. We conclude that the district court did not err in refusing to reopen voir dire. [HN1] A trial judge has broad discretion in overseeing the conduct of voir dire, subject to “essential demands of fairness.” Aldridge v. United States, 283 U.S. 308, 310, [*290] 51 S. Ct. 470, 75 L. Ed. 1054 (1931); [**8] United States v. Rucker, 557 F.2d 1046, 1049 (4th Cir. 1977). Trial judges “must reach conclusions as to [a prospective juror’s] impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions.” Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S. Ct. 1629, 68 L. Ed. 2d 22 (1981). An “appellate court [cannot] easily second-guess the conclusions of [a trial judge] who heard and observed” a juror’s responses and demeanor during voir dire. Id.
In the present case, the trial judge asked his own preliminary questions on voir dire that were aimed at uncovering any bias or prejudice relating to the sport of skiing. There was no response that raised a red flag. In addition, the judge observed the responses and demeanor of the two jurors in question. The judge declined to reopen voir dire, reasoning that both sides had been given adequate opportunity to question jurors, and all jurors seated assured the judge that they could be fair and impartial. The judge was satisfied that “had there been some bias or prejudice that would affect [the jurors’] verdict . . . it would have been uncovered” during voir dire. [**9] J.A. 1194. The trial judge thus determined that the voir dire was adequate on matters of potential bias. We have ample grounds for deferring to this determination, and we conclude that the judge did not err in refusing to reopen voir dire.
B.
The Strawbridges also contend that they are entitled to a new trial because the two jurors (Nicholson and McDonald) failed to provide honest responses at voir dire. [HN2] A new trial is warranted when (1) a juror failed to answer a material question honestly on voir dire, even if the failure was innocent, and (2) a correct response would have provided a basis for a challenge for cause. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984). The question the Strawbridges posed to the panel was:
Do any of you have anybody, family, close family, relatives, children, who is in any way involved in the ski industry, not necessarily on the slopes themselves, but maybe providing supplies to a resort or making deliveries to a resort or going there to make repairs, that kind of thing, in any way that might be remotely connected with the ski industry?
J.A. 1144. The Strawbridges maintain that [**10] because the question contained the word “anybody,” the two jurors were dishonest when they did not respond with information about non-familial ties to the ski industry.
A new trial is not warranted because, as the district judge found, the jurors did not respond dishonestly to the Strawbridges’ question. According to the trial judge, the most logical interpretation of the question is that it was limited to potential jurors’ family ties to the ski industry. This interpretation led the judge to conclude that the jurors’ responses were neither inconsistent nor dishonest. We agree with the judge’s analysis. The Strawbridges’ inability to obtain the information they sought during voir dire is attributable to their failure to state their question clearly, not the jurors’ failure to answer the question honestly.
C.
The Strawbridges further argue that they are entitled to a new trial based on the actual bias of jurors Nicholson and McDonald or the trial court’s error in denying a hearing (including further questioning) on the issue of actual bias. [HN3] A showing that a juror was actually biased, regardless of whether the juror was truthful [*291] or deceitful, can entitle a party to a new trial. [**11] Jones v. Cooper, 311 F.3d 306, 310 (4th Cir. 2002). A trial court has broad discretion to determine whether to order a hearing on a claim of juror bias. See McDonough, 464 U.S. at 556 (Blackmun, J., concurring); Fitzgerald v. Greene, 150 F.3d 357, 363 (4th Cir. 1998).
The Strawbridges have simply made no showing that either Nicholson or McDonald was a biased juror. Moreover, we have reviewed the record and conclude that the trial court did not abuse its discretion in declining to hold a hearing or permit further questioning on the issue of actual bias.
III.
The Strawbridges argue that the trial court erroneously excluded evidence showing that rocks existed on the area of the slope where Mr. Strawbridge fell. Because Mr. Strawbridge testified that he encountered a bare spot of dirt (he did not mention rocks), the court did not err in excluding evidence of rocks on the basis that it was not relevant under Federal Rules of Evidence 401 and 402.
IV.
The Strawbridges argue that the district court abused its discretion in refusing to enforce a settlement [**12] agreement they allegedly reached with SMR. [HN4] A court should enforce a settlement agreement when the partes have agreed on all material terms. Piver v. Pender County Bd. of Educ., 835 F.2d 1076, 1083 (4th Cir. 1987); Boyce v. McMahan, 285 N.C. 730, 208 S.E.2d 692, 695 (N.C. 1974). After holding a hearing on the settlement question and carefully reviewing the facts, the district court found that there was no meeting of the minds. Riddle, SMR’s lawyer, considered the deal to be conditioned upon the Strawbridges’ requirement that payment be structured as loss of future income. The Strawbridges argue that the court should enforce the agreement because payment structure was not a material condition. However, as the district court found, payment structure was material because the defense side feared exposure to liability on Mr. Strawbridge’s medical liens. The district court did not abuse its discretion in refusing to enforce the alleged settlement agreement.
V.
Because our rulings on the voir dire, jury bias, evidentiary, and settlement issues mean that the jury’s finding of no liability on the part of the defendants will stand, we have no reason to [**13] reach the Strawbridges’ argument that the district court erred in granting summary judgment to SMR on the issue of punitive damages. Likewise, because the judgment for the defendants will be affirmed, we will not consider the issues raised in the defendants’ cross-appeals. The judgment is affirmed.
AFFIRMED
Nebraska Recreational Use Statute
Posted: March 28, 2015 Filed under: Nebraska | Tags: Immunity, Land Owner, Recreational Use Leave a comment§ 37-730. Limitation of liability; purpose of sections.
The purpose of sections 37-729 to 37-736 is to encourage owners of land to make available to the public land and water areas for recreational purposes by limiting their liability toward persons entering thereon and toward persons who may be injured or otherwise damaged by the acts or omissions
§ 37-731. Landowner; duty of care.
Subject to section 37-734, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.
§ 37-732. Landowner; invitee; permittee; liability; limitation.
Subject to section 37-734, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby (1) extend any assurance that the premises are safe for any purpose, (2) confer upon such persons the legal status of an invitee or licensee to whom a duty of care is owed, or (3) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such persons.
§ 37-733. Land leased to state; duty of landowner.
Unless otherwise agreed in writing, an owner of land leased to the state for recreational purposes owes no duty of care to keep that land safe for entry or use by others or to give warning to persons entering or going upon such land of any hazardous conditions, uses, structures, or activities thereon. An owner who leases land to the state for recreational purposes shall not by giving such lease (1) extend any assurance to any person using the land that the premises are safe for any purpose, (2) confer upon such persons the legal status of an invitee or licensee to whom a duty of care is owed, or (3) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of a person who enters upon the leased land. The provisions of this section shall apply whether the person entering upon the leased land is an invitee, licensee, trespasser, or otherwise.
§ 37-734. Landowner; liability.
Nothing in sections 37-729 to 37-736 limits in any way any liability which otherwise exists (1) for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity or (2) for injury suffered in any case where the owner of land charges the person or persons who enter or go on the land.
§ 37-735. Sections, how construed.
Nothing in sections 37-729 to 37-736 creates a duty of care or ground of liability for injury to person or property.
§ 37-736. Obligation of person entering upon and using land.
Nothing in sections 37-729 to 37-736 limits in any way the obligation of a person entering upon or using the land of another for recreational purposes to exercise due care in his or her use of such land in his or her activities thereon.
Garreans, Jr., v. City of Omaha, 216 Neb. 487; 345 N.W.2d 309; 1984 Neb. LEXIS 942
Posted: March 28, 2015 Filed under: Nebraska | Tags: City Park, Fee, Immunity, Limited Liability, Nebraska, Omaha, Park, Recreational Use Leave a commentTo Read an Analysis of this decision see
Fees are charged, recreation is happening, but can the recreational use act still protect a claim, yes, if the fees are not for the recreation
Garreans, Jr., v. City of Omaha, 216 Neb. 487; 345 N.W.2d 309; 1984 Neb. LEXIS 942
John Garreans, Jr., a minor, by his next friend and father, John Garreans, Sr., et al., Appellees, v. City of Omaha, a municipal corporation, Appellant
No. 82-814
SUPREME COURT OF NEBRASKA
216 Neb. 487; 345 N.W.2d 309; 1984 Neb. LEXIS 942
February 17, 1984, Filed
COUNSEL: Herbert M. Fitle, City Attorney, James E. Fellows, and Timothy M. [***3] Kenny, for appellant.
Thomas F. Dowd and John P. Fahey of Dowd & Fahey, and J. Patrick Green, for appellees.
JUDGES: Krivosha, C.J., Boslaugh, White, Hastings, Caporale, Shanahan, and Grant, JJ. Shanahan, J., dissenting. White and Grant, JJ., join in this dissent.
OPINION BY: BOSLAUGH
OPINION
[*488] [**311] This is an action under the Nebraska Political Subdivisions Tort Claims Act against the City of Omaha, Nebraska, to recover damages for the injuries sustained by the plaintiffs, John Garreans, Jr., and Vince Hartline, in an explosion which occurred [**312] at N.P. Dodge Park on July 5, 1980, while the plaintiffs were visiting with their grandparents, Ray and Evelyn Stoops, at the park. The petition included a second cause of action for the medical expenses incurred by the parents of the plaintiffs as a result of the explosion. At the time of the accident both plaintiffs were 12 years of age. The action was brought by their fathers as the next friends of the plaintiffs. The defendant has raised no issue in this court concerning joinder.
The evidence shows that on July 3, 1980, Ray and Evelyn Stoops entered N.P. Dodge Park in Omaha, Nebraska, with their camper, intending [***4] to camp in the park over the 3-day holiday. Evelyn Stoops paid [*489] a $ 10.50 fee at the concessionaire’s office for the use of camper pad No. 25 for the 3-day period. Electrical service was provided at that pad. While they were setting up camp, the Stoopses noticed a black, 55-gallon drum nearby. The black drum was in addition to a trash barrel at the pad, which was a 55-gallon drum from which the top had been removed. Trash barrels, which consisted of 55-gallon drums from which the tops or lids had been removed, were distributed throughout the park, including the camping area. These drums were painted various colors and were labeled “TRASH” on the side.
Printing or lettering on the side of the black drum indicated that it had contained an antifreeze compound. A red or orange label, approximately 4 inches square, was affixed to the top of the drum. The label bore the legend “Flammable Liquid” printed below a representation of a fire or flames.
The lid or top of the black drum was intact, and the drum was closed except for a small opening, approximately 1 inch in diameter, from which a plug had been removed. There is no evidence that the city placed the black drum [***5] in the park, and a search of city records showed that the city had not purchased the black drum. The plaintiffs contended that the city was negligent in failing to remove the drum from the park.
On July 5, 1980, the plaintiffs entered the park to visit with their grandparents at camper pad No. 25. In accordance with park policy no admission fee was charged them. Both boys had been given firecrackers by their fathers. The boys used a cigarette lighter to light the firecrackers, and used the black drum as a shelf for their activities. The explosion occurred when they dropped a lighted firecracker into the black drum through the 1-inch hole in the lid. The drum exploded, spraying flammable liquid on the boys. John received severe burns on his [*490] lower extremities. Vince suffered injuries to his nose and arm, and was also burned.
The trial court found that the city had failed to properly supervise the area around camper pad No. 25; had failed to observe, inspect, and remove the 55-gallon drum; had failed to warn the public of the dangerous nature of the drum; was guilty of willful negligence; and that the plaintiffs were not contributorily negligent. Judgment was entered [***6] in the amount of $ 243,190.57 for John Garreans, Jr., and in the amount of $ 104,726.95 for Vince Hartline.
One of the principal issues in the case was whether the Recreation Liability Act was applicable. The city assigns as error the failure of the court to properly apply the standard of care found in the Recreation Liability Act.
Neb. Rev. Stat. § 37-1002 (Reissue 1978) provides: [HN1] “Subject to the provisions of section 37-1005, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.”
Neb. Rev. Stat. § 37-1005 (Reissue 1978) provides: [HN2] “Nothing in sections 37-1001 to 37-1008 limits in any way any liability which otherwise exists (1) for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity, or (2) for injury suffered in any case where the owner of land charges the [**313] person or persons who enter or go on the land. Rental paid by a group, organization, corporation, the state or federal government shall not be deemed a charge made [***7] by the owner of the land.”
The act thus provides that an owner of a recreational facility is not liable for ordinary negligence unless a fee was charged for the right to enter the facility, although the owner may be liable for certain willful actions.
The trial court found that the fee paid by Evelyn [*491] Stoops for the use of the camper pad constituted a “charge” for entry upon land and that the actions of the city amounted to “willful negligence.”
Findings of fact made by the district court in cases brought under the Political Subdivisions Tort Claims Act will not be disturbed on appeal unless clearly wrong. Studley v. School Dist. No. 38, 210 Neb. 669, 316 N.W.2d 603 (1982); Watson v. City of Omaha, 209 Neb. 835, 312 N.W.2d 256 (1981).
The city through its operation of N.P. Dodge Park provides camping, picnic, and sports facilities, and the park is a “recreational facility” within the meaning of the act. Neb. Rev. Stat. § 37-1008 (Reissue 1978) [HN3] provides in part: “(3) the term recreational purposes shall include, but not be limited to, any one or any combination of the following: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, [***8] nature study, water skiing, winter sports, and visiting, viewing, or enjoying historical, archaeological, scenic, or scientific sites, or otherwise using land for purposes of the user.” See Watson v. City of Omaha, supra.
The term “charge” is defined in § 37-1008: “(4) the term charge shall mean the amount of money asked in return for an invitation to enter or go upon the land.”
The clear meaning of this statute is that in order to constitute a charge, any moneys paid must be paid for the right to enter the facility. [HN4] Where the language of a statute is plain, direct, and unambiguous, no interpretation is needed, and the court is without authority to change such language. County of Douglas v. Board of Regents, 210 Neb. 573, 316 N.W.2d 62 (1982); State v. Schneckloth, Koger, and Heathman, 210 Neb. 144, 313 N.W.2d 438 (1981).
The evidence in the present case is undisputed that no charge was made by the city for the right to enter N.P. Dodge Park. Those entering the park paid no admission fee. Charges were made for the right to park a camper on a pad, for the right to [*492] pitch a tent in a tent camping area, and for the use of camper dumping facilities. Payment [***9] of the fee by Mrs. Stoops did not entitle her to a greater right to use any of the park’s other facilities than that had by the general public. We conclude that the fee paid by Evelyn Stoops was not a charge for entry upon the land but was a fee paid for the right to park a camper upon a specific pad.
This conclusion has been reached by other courts faced with similar issues. In Stone Mountain Mem. Assn. v. Herrington, 225 Ga. 746, 171 S.E.2d 521 (1969), a fee paid to park a vehicle in a park was held not to constitute a charge for admission, as no charge was made upon those who entered on foot. See, also, Jones v. United States, 693 F.2d 1299 (9th Cir. 1982), wherein a fee for use of an inner tube was held not to be a charge within the contemplation of Washington’s recreational use statute.
In Moss v. Dept., 62 Ohio St. 2d 138, 142, 404 N.E.2d 742, 745 (1980), the Ohio Supreme Court stated: “R.C. 1533.18(B) defines a ‘recreational user’ as one who has permission to enter upon ‘premises’ without the payment of a fee or consideration. It is conceded that the Mosses and decedent O’Neal did not pay a fee ‘to enter’ the parks; rather, the consideration paid went for [***10] the purchase of gas, food and for the rental of a canoe. Nor was this a situation wherein the state attempted to circumvent liability by charging fees for the use of all facilities, in essence charging an entrance fee, although not labelling it as such. It is undisputed that the Mosses and decedent [**314] O’Neal could have brought the same items to the parks that they purchased or rented while there, and still have made use of the park facilities. Consideration should not be deemed given under R.C. 1533.18(B) unless it is a charge necessary to utilize the overall benefits of a recreational area so that it may be regarded as an entrance or admittance fee. Appellants’ contention is without merit.”
[*493] Moreover, the fee for use of camper pad No. 25 was paid by Evelyn Stoops and not by the plaintiffs. The plaintiffs therefore were nonpaying, recreational users of the park facilities and thus are not entitled to recover for injuries not caused by the city’s willful actions. See Garfield v. United States, 297 F. Supp. 891 (W.D. Wis. 1969).
Since the plaintiffs did not pay a charge to enter the park, the next issue which we consider is whether the evidence will support [***11] a finding that the city was guilty of a “willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.” A review of the evidence in light of the applicable law warrants only the conclusion that the actions of the city were not willful or malicious. The finding of the trial court on this issue is not supported by the evidence.
[HN5] In order for an action to be willful or wanton, the evidence must show that one acted with actual knowledge that a danger existed and that he intentionally failed to act to prevent the harm which was reasonably likely to result. The term imparts knowledge and consciousness that injury is likely to result from the act done or omission to act, and a constructive intention as to the consequences. To constitute willful misconduct there must be actual knowledge, or its legal equivalent, of the peril to be apprehended, coupled with a conscious failure to avert injury. To constitute willful negligence the act done or omitted must be intended or must involve such reckless disregard of security and right as to imply bad faith. Wanton negligence has been said to be doing or failing to do an act with reckless indifference [***12] to the consequences and with consciousness that the act or omission would probably cause serious injury. 57 Am. Jur. 2d Negligence §§ 101-105 (1971).
In Ashton v. Blue River Power Co., 117 Neb. 661, 222 N.W. 42 (1928), a workmen’s compensation case, the court stated: [HN6] “[W]ilful negligence may be defined [*494] as (1) a deliberate act; or (2) such conduct as evidenced reckless indifference to safety. As a statutory term it involves more than want of ordinary care. It implies a rash and careless spirit, not necessarily amounting to wantonness, but approximating it in a degree, a willingness to take a chance.” (Syllabus of the court.)
In Roberts v. Brown, 384 So. 2d 1047, 1048 (Ala. 1980), the court said: [HN7] “‘Wantonness has been defined as the conscious doing of some act or the omission of some duty which under knowledge of existing conditions and while conscious that, from the doing of such act or the omission of such duty, injury will likely or probably result, and before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known [***13] duty which produced the result. Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505; Taylor v. Thompson, 271 Ala. 18, 122 So.2d 277; Johnson v. Sexton [277 Ala. 627, 173 So.2d 790], supra.’ Lewis v. Zell, 279 Ala. 33, 36, 181 So.2d 101 (1965).”
In Ewing v. Cloverleaf Bowl, 20 Cal. 3d 389, 402, 572 P.2d 1155, 1161, 143 Cal. Rptr. 13, 20 (1978), the court stated: [HN8] “‘[W]illful misconduct implies the intentional doing of something either with knowledge, express or implied, that serious injury is a probable, as distinguished from a possible, result, or the intentional doing of an act with a wanton and reckless disregard of its consequences.’ ( Williams v. Carr, supra, 68 Cal.2d 579 584 [440 P.2d 505, 509, 68 Cal. Rptr. 305, 309 (1968)].) ‘If conduct is sufficiently lacking in consideration for the rights of others, reckless, heedless to an [**315] extreme, and indifferent to the consequences it may impose, then, regardless of the actual state of the mind of the actor and his actual concern for the rights of others, we call it willful misconduct. . . .'”
In Jones v. United States, 693 F.2d 1299 (9th Cir. [*495] 1982), the court addressed [***14] the issue of what constitutes willful or wanton misconduct under Washington’s recreational use statute. The court held that the defendant must act or fail to act with actual knowledge of the hazard in order to be held liable under the statute.
The record does show that park employees did not observe the barrel on their routine trips through the park. The employees testified that had they noticed the barrel, they would have removed it.
The failure to observe the barrel may have been ordinary negligence in that the city in the exercise of due care “should have known” of the existence of a danger, but that does not amount to willful misconduct. An actor cannot act willfully in failing to remove a danger when he has no knowledge of it.
The city has also assigned as error the finding of the trial court that the plaintiffs were not guilty of contributory negligence. [HN9] An actor is contributorily negligent if he breaches the duty imposed upon him by law to protect himself from injury; if his actions concur and cooperate with actionable negligence of the defendant; and if his actions contribute to his injuries as a proximate cause. Stephen v. City of Lincoln, 209 Neb. 792, 311 N.W.2d [***15] 889 (1981). A child is required to exercise that degree of care which a person of that age would naturally and ordinarily use in the same situation under the same circumstances. Huff v. Ames, 16 Neb. 139, 19 N.W. 623 (1884); Camerlinck v. Thomas, 209 Neb. 843, 312 N.W.2d 260 (1981).
Although we have concluded that no “willful or malicious” negligence existed on the part of the city, we believe the evidence in this case shows that the plaintiffs were contributorily negligent sufficient to bar their recovery as a matter of law. The finding of the trial court to the contrary was clearly wrong.
The use of firecrackers in the city of Omaha and within the park was prohibited by ordinance, as well as by park regulation. The plaintiffs had been [*496] warned by their parents that fireworks were dangerous and that they should be careful when using them. The plaintiffs testified that they were aware of the danger involved in using fireworks. The degree of care required increases when an actor is dealing with a dangerous activity such as exploding firecrackers. See Martinez v. Hoveling, 184 Neb. 560, 169 N.W.2d 428 (1969). Despite these warnings, the evidence is that [***16] the plaintiffs were lighting firecrackers above the opening in the drum and dropping lighted firecrackers into the drum.
Although there is conflicting testimony with regard to whether the boys noticed the “flammable” marking on the drum, the label was plainly visible, and the plaintiffs testified that they understood what the term “flammable” meant. In the exercise of proper care the boys should have seen the warning label on the top of the drum upon which they were lighting firecrackers. Moreover, they should have known that dropping lighted firecrackers into the drum created an unreasonable risk of explosion.
In the following cases the actions of children with regard to their use of firecrackers was held to be contributory negligence: Thornton v. Ionia Free Fair Association, 229 Mich. 1, 200 N.W. 958 (1924) (14-year-old, who had experience with firecrackers, held negligent in setting off firecrackers he found at fairgrounds); Mathews v. City of Albany, 36 Cal. App. 2d 147, 97 P.2d 266 (1939) (12-year-old who had knowledge of properties of fireworks held contributorily negligent); Shelanie v. National Fireworks Association, 487 S.W.2d 921 (Ky. App. 1972) (14-year-old [***17] who admitted he knew and had been warned about dangers of fireworks held contributorily negligent).
[**316] The judgment of the district court is reversed and the cause remanded with directions to dismiss the petition.
Reversed and remanded with directions.
DISSENT BY: SHANAHAN
DISSENT
[*497] Shanahan, J., dissenting.
The majority opinion misconstrues the Recreation Liability Act, Neb. Rev. Stat. §§ 37-1001 through 37-1008 (Reissue 1978). Section 37-1001 states: “The purpose of sections 37-1001 to 37-1008 is to encourage owners of land to make available to the public land and water areas for recreational purposes by limiting their liability toward persons entering thereon and toward persons who may be injured or otherwise damaged by the acts or omissions of persons entering thereon.” The legislative history of the Recreation Liability Act and numerous interpretative decisions by courts of states having statutes similar to the Nebraska act compel the conclusion that the act does not apply to the present case. The Recreation Liability Act is designed to encourage public access to and recreational use of privately held undeveloped lands. To induce the private landowner’s permission [***18] for such public use, the Legislature has promised reduced exposure to liability for injuries occurring in recreational areas opened to the public. See, Tallaksen v. Ross, 167 N.J. Super. 1, 400 A.2d 485 (1979); Harrison v. Middlesex Water Company, 158 N.J. Super. 368, 386 A.2d 405 (1978); Michalovic v. Racing Assn, 79 A.D.2d 82, 436 N.Y.S.2d 468 (1981); Johnson v. Stryker Corp., 70 Ill. App. 3d 717, 388 N.E.2d 932 (1979); Cedeno v. Lockwood, Inc., 250 Ga. 799, 301 S.E.2d 265 (1983). “The purpose of this [recreational use legislation] is to limit the liability of private landowners, thereby encouraging them to make their property available for public recreation. . . . Thus, there is an objective basis for the aim of recreational use acts: to promote increased public access to private lands by reducing the liability of landowners and occupiers.” Barrett, Good Sports and Bad Lands: The Application of Washington’s Recreational Use Statute Limiting Landowner Liability, 53 Wash. L. Rev. 1, 3-4 (1977). By the Recreation Liability Act the state avoids expensive acquisition of considerable land for [*498] public recreational use, that is, state-owned or -leased [***19] areas, and in return grants restricted or limited liability to private landowners providing areas for public recreation. Consequently, the question of negligence in operating a city park is not within the purview of the Recreation Liability Act. Putting aside the particular situation involved in this case, patrons of public parks should be alert to the effect of the majority opinion and its rule regarding care required in operating a municipal park, i.e., responsibility for injury caused only by willful or malicious failure to protect the public admitted without charge to any city park.
Without conceding applicability of the Nebraska Recreation Liability Act to the present case, we disagree with other aspects of the majority opinion.
There were 46 camper pads within the city park. Ray Stoops, grandfather of the plaintiffs, paid $ 10.50 to park his trailer on camper pad No. 25. The fee or charge entitled the Stoopses to 3 days’ occupancy of the camper pad, namely, until July 6, according to registration receipt No. 6268 issued by the park caretaker for pad No. 25. Also, in exchange for the fee, the city provided Stoops with electrical service for his camper pad, or, as the city [***20] superintendent of parks testified, Stoops was “allowed to plug into the electrical stanchion that’s at that particular pad for his trailer.” Electrical service was not available to everyone entering the park but was provided only to those paying for particular camper pads. As testified by city park employees, the superintendent of parks, district foreman, and caretaker for the park, Stoops had “exclusive possession” of pad No. 25, for, as the superintendent of parks testified, “That’s the whole intent.” The district park foreman acknowledged that when a person “rented” a pad, that person was entitled to exclusive use to the extent that, upon request by the paying occupant of the pad, park personnel would [**317] remove any unwanted or unauthorized person intruding upon the camper pad. [*499] If those efforts of park personnel were unsuccessful, police would be summoned to remove the unwanted intruder. As described by the park caretaker: “I would call the cruiser.” The park caretaker also testified there was no restriction regarding visitors to Stoops’ camper pad, including visits by Stoops’ grandchildren, which was “consistent with the fee that he paid.”
The majority opinion [***21] acknowledges that Stoops paid “a fee . . . for the right to park a camper upon a specific pad.” Although the majority feels that the nature of negligence under the Recreation Liability Act turns only on the presence or absence of a charge for admission, an admission fee is not the sole determinant regarding the type or degree of negligence required for liability under the act. The March 26, 1965, Committee Statement on L.B. 280 (Recreation Liability Act), of the Agriculture and Recreation Committee, contains the following: “The act provides no inherent limitations on liability for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity, or for injury suffered in any case when a charge is made unless that charge be in the nature of rent.” (Emphasis supplied.) Stoops’ use and occupancy of the camper pad included benefits and rights not enjoyed by the general public admitted to the park, and even included exclusion of the public from the camper pad, if Stoops saw fit. Stoops acquired such benefits and rights by payment of the fee or charge not required of the general public for admission to the park. In the final analysis, and by [***22] any reasonable definition or construction, the charge paid by Stoops was rent, that is, consideration or compensation “paid for use or occupation of property.” Black’s Law Dictionary 1166 (5th ed. 1979). See, Modular Concepts, Inc. v. So. Brunswick Twp., 146 N.J. Super. 138, 369 A.2d 32 (1977); Rosewood Corp. v. Transamerica Ins., 57 Ill. 2d 247, 311 N.E.2d 673 (1974); Whiting Paper Co. v. Holyoke Water Power [*500] Co., 276 Mass. 542, 177 N.E. 574 (1931); White Roofing Company v. Wheeler, 39 Ala. App. 662, 106 So. 2d 658 (1957); Kennedy v. Boston-Continental Nat. Bank, 11 F. Supp. 611 (D. Mass. 1935); Young v. Home Telephone Co., 201 S.W. 635 (Mo. App. 1918). “Charge,” within the Recreation Liability Act, includes not only payment for admission to a recreational area but also the charge paid for the use or occupancy of a site within the recreational area. The Recreation Liability Act was clearly intended to preserve rights of persons injured by ordinary negligence of the landowners charging rent as in the case now before us.
As one of the grounds for denying recovery by the plaintiffs, the majority states: “Moreover, the fee for use of camper pad No. [***23] 25 was paid by Evelyn Stoops [plaintiffs’ grandmother] and not by the plaintiffs.” Lurking within the majority opinion is the requirement of privity — liability dependent upon a precedent contractual relationship between the injured person and the negligent tort-feasor. “At one time a showing of privity was considered necessary to occasion liability for negligence, but the courts have been getting away from that doctrine and many have entirely repudiated and discarded it; and under the modern doctrine liability is based on foreseeability rather than privity.” 65 C.J.S. Negligence § 4(11) at 502 (1966). Justice Cardozo, almost 70 years ago, rejected the condition or requirement of privity in a product liability suit for negligence, when he stated in MacPherson v. Buick Motor Co., 217 N.Y. 382, 390, 394, 111 N.E. 1050, 1053-54 (1916): “We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. . . . [F]oresight of the consequences involves the creation of a duty.” As expressed in Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 86, 199 N.E.2d 769, 779 (1964): “It [***24] is axiomatic that every person owes to all others a duty to exercise ordinary [*501] care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act, and that such duty does not depend upon contract, [**318] privity of interest or the proximity of relationship, but extends to remote and unknown persons.” See, also, Webel v. Yale University, 125 Conn. 515, 7 A.2d 215 (1939); cf., McKinley v. Slenderella Systems of Camden, N.J., Inc., 63 N.J. Super. 571, 165 A.2d 207 (1960); Robinson v. Colebrook Guaranty Bank, 109 N.H. 382, 254 A.2d 837 (1969). Today, most courts adhere to the rule that duty as an element of negligence is based not on privity but on foreseeability that harm may result if care is not exercised. See, Harvard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So. 2d 228 (1974); Orlo v. Connecticut Co., 128 Conn. 231, 21 A.2d 402 (1941); cf. J’Aire Corp. v. Gregory, 24 Cal. 3d 799, 598 P.2d 60, 157 Cal. Rptr. 407 (1979). “The duty of vigilance to prevent injury has its source in the law applicable to human relations rather than in a narrow conception of privity.” 57 Am. Jur. 2d Negligence [***25] § 37 at 385 (1971). In the case before us it was foreseeable that family members, including the Stoopses’ grandchildren, would be visiting Ray and Evelyn Stoops at their trailer. This foreseeability resulted in the city’s duty to use reasonable care in protecting Stoops’ visitors, namely, guarding against injuries caused by hazards such as the barrel bomb on pad No. 25. It is some small solace that the explosion did not launch the trailer from the pad. “The rule of reasonable care under the circumstances could not limit the conduct of Robinson Crusoe as he was first situated. But as soon as he saw the tracks in the sand, the rule began to have vitality. He then had notice that there might be other persons on the island, and this knowledge of their presence made it his duty as a reasonable man to use reasonable care to the end that no act of his should injure them.” Huckabee v. Grace, 48 Ga. App. 621, 628, 173 S.E. 744, 749 (1934). Footprints, camper pads, and trash barrels; [*502] the result is the same. At sea on privity, Nebraska jurisprudence will find itself on an island without even Crusoe.
Established park policy called for removal of any barrel not placed in [***26] the park by the city. The city had no black barrels as a part of the trash collection system for the park. (On July 5, after the explosion and in front of the caretaker’s house in the park, an arson investigator for the Omaha Police Department found a similar “55-gallon drum, trash-can” bearing a precaution about contents with an “extremely high flash point.”) City employees made frequent trips in the area of pad No. 25 and daily removed trash from the other, differently colored barrel sitting inches from the black barrel. The city’s activity, or more aptly the city’s inactivity, and the barrel’s continued presence at pad No. 25 would lead anyone to conclude there was nothing dangerous in that setting. As testified by Evelyn Stoops, grandmother of the plaintiffs: “Anything in the park is supposed to be safe . . . .” Under the circumstances one would reasonably believe and rely that the city had provided a safe park and not a dump for a discarded, dangerous barrel containing combustible material. “‘In determining the sufficiency of the evidence to sustain a judgment, it must be considered in the light most favorable to the successful party. Every controverted fact must be resolved [***27] in his favor and he is entitled to the benefit of every inference that can reasonably be deduced from the evidence.’ [Citations omitted.] Moreover, under the Political Subdivisions Tort Claims Act, section 23-2406, R.R.S. 1943, the ‘findings of a District Court under the act will not be disturbed on appeal unless they are clearly wrong.’ [Citation omitted.]” Daniels v. Andersen, 195 Neb. 95, 98, 237 N.W.2d 397, 400 (1975). Negligence — the city’s negligence and contributory negligence of the plaintiffs — was a question of fact resolved by the trial court in favor of the plaintiffs. [*503] That conclusion and determination is not clearly wrong.
For these reasons the judgment of the trial court should have been affirmed.
White and Grant, JJ., join in this dissent.
G-YQ06K3L262
http://www.recreation-law.com
Do You Go Outside in Winter? Are You a Member of the American Avalanche Association? You Should Be!
Posted: March 27, 2015 Filed under: Uncategorized | Tags: x, y, z Leave a comment
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AVPRO Coordinator Dallas Glass once again organized a high caliber AVPRO training this winter, which he instructed along with Patty Morrison (Northwest) and Andy Lapkass (Rockies) during the final days of February and start of March down in Breckenridge, CO. The course was full with 18 students – heavy CO representation, as well as AK and the Northwest! Student outcomes were high, and the feedback passed along by students, instructors, and guests has been overwhelmingly positive. Dallas is already working on plans for next season’s AVPRO, so stay tuned for info on location and dates.
This winter the AAA Governing Board decided to offer support to Project Zero as they work to reduce avalanche fatalities and promote a responsible backcountry experience. Here’s an update on recent Project Zero accomplishments from Project Zero Project Manager Rachel Reich:
Keith Rousch, Durango, CO – Lifetime Member & 2014 Donor.
Eric Larson, Hydrologist, Bozeman, MT – Member Affiliate applicant. 
Liz Riggs-Meder, Mom & AIARE Online Programs Project Manager, Seattle, WA – Member Affiliate applicant.
Van Roberts, Grand Targhee Ski Patrol & Mt Rainier Climbing Ranger, Ashford, WA – Professional applicant.
Rob Faisant, Portola Valley, CA – Pro Member & 2014 Donor.Family of slain girl would waive damages to learn more about what happened
Posted: March 26, 2015 Filed under: Uncategorized | Tags: Lawsuit, Litigation, why people sue Leave a commentLawsuits are not money a lot of the time; they are about emotions, finding out why.
This is outside the area of Outdoor Recreation; however it has value to all of us. The family of a girl killed by a gunman in school has offered to waive damages if they can learn more about what happened.
It is a scary, chilling terrible story, but what is important is why this offer. They just want to know why and to try and make sure it does not happen again.
See Father of Claire Davis to district: Provide information, avoid lawsuit
More articles about this issue:
It’s Not Money http://rec-law.us/zxmmqy
Why do people sue? Not for the money. http://rec-law.us/A0866T
Serious Disconnect: Why people sue. http://rec-law.us/wm2cBn
Her life is permanently changed, but she really wants an apology http://rec-law.us/yHjVn0
Money is important in some lawsuits, but the emotions that starts a lawsuit. http://rec-law.us/xbSs4M
A Church wants to apologize and the insurance company for the church panics. What else would you expect a church to do? http://rec-law.us/zI0FUI
Great article on why some corporate apologies fall short and they are not sincere http://rec-law.us/xb1uVb
Keep customers and turn possible plaintiffs into PR teams for you http://rec-law.us/12maA6Q
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2015 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Lawsuit, Why People Sue, Litigation,
When is a case settled? When all parties (and maybe their attorneys) agree it is settled
Posted: March 23, 2015 Filed under: North Carolina, Ski Area, Skiing / Snow Boarding | Tags: Punitive damages, Settlement, Settlement Agreement, Sugar Mountain Resort Leave a commentSkier sued ski resort for injuries received skiing into bald spot. Skier argued they had agreed on a settlement before trial, which only became an issue after the plaintiff lost at trial.
Strawbridge, Jr. v. Sugar Mountain Resort, Incorporated, et al., 152 Fed. Appx. 286; 2005 U.S. App. LEXIS 23459
State: North Carolina, United States Court of Appeals for the Fourth Circuit
Plaintiff: Vincent F. Strawbridge, Jr.; Rebecca S. Strawbridge
Defendant: Sugar Mountain Resort, Incorporated; B. Dale Stancil, individually; The Sugar Mountain Irrevocable Trust; The B. Dale Stancil Irrevocable Trust,
Plaintiff Claims: negligence, loss of consortium and requested compensatory and punitive damages
Defendant Defenses: not stated
Holding: for the defendant
Year: 2005
This case is difficult to understand the facts of what happened and what the claims or defenses are. The 4th Circuit Court of Appeals was succinct in its opinion and reasoning for its opinion.
The plaintiff was skiing at the defendant Sugar Mountain Resort when he skied over a ledge into a bar spot where he fell. The plaintiff’s (husband and wife) sued for $8 million. They sued the ski area, and they sued the owner of the ski area because the ski area only had $1 million in liability insurance.
At one point before trial and before and after the magistrates ruling the parties were close to a settlement agreement. The settlement the defendant had offered was $450,000 and the plaintiff had counter offered $1 million. The plaintiff was trying to avoid the subrogation claims of his insurance companies, which amounted to $400,000. So one of the issues negotiated was how the money was to be paid, as damages or as lost future income. Damages would be subject to subrogation claims.
However, no agreement was reached; no settlement was signed, and no money exchanged hands between the parties. The magistrate held a hearing on the issue and held that no settlement had occurred because there had not been an agreement to the material terms of the agreement. Both parties to a contract must understand and agree to the major terms of a contract for a contract to be valid, and a settlement agreement is a contract.
The magistrate ruled that the defendant should win its motion for summary judgement. The federal district court ruled that only the plaintiff’s claim for punitive damages should be dismissed, and the rest should go to trial.
A trial occurred which the defendant won. The plaintiff appealed whether or not a settlement had occurred and issues pertaining to jury selection. The defendant appealed the issue of why assumption of the risks was not allowed as a defense.
Analysis: making sense of the law based on these facts.
The majority of the agreement looks at the issues on how the jury was selected and is not important here. The court also said that evidence of rocks in the bare spot was not admitted. However, the court found that since the plaintiff did not mention rocks in his testimony, only a bare spot, then the denial of the admittance of the evidence of rocks was correct.
The next issue was whether there was a settlement between the parties. The district court had also held a hearing on the issue of whether the parties had settlement and held that there was no meeting of the minds.
The final issue the court reviewed was the settlement agreement, which the appellate court agreed with the lower court and ruled there was no meeting of the minds. The way the money was to be paid was a material factor in the agreement which was not agreed upon by the parties so the parties did not have a contract.
So Now What?
To sue the owner of the ski area you would have to breach the corporate veil. That means you would have to find a reason to prove the corporation was a sham. Normally, that is something like using the corporation personally, not maintaining corporate records or not running the corporation properly. The most-used way to pierce the corporate veil is to prove a corporation was used for fraudulent purposes. One way to pierce the corporate veil that is rarely, if ever used, is because the corporation is underfunded.
Here it is not explained what theory the plaintiff was relying upon to sue the owner individually. However, the fact that a large corporation only had $1 million in liability insurance could fall both as running a corporation without enough money or running it improperly. More than anything, it is just stupid.
Until any agreement is finalized, proving a settlement with some way to prove the terms, and the agreement to the terms, is difficult. Once you agree, do not relax until all parties and the parties’ attorneys have signed the settlement agreement, and the judge has dismissed the case.
What do you think? Leave a comment.
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Copyright 2015 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
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Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Sugar Mountain Resort, Settlement, Settlement Agreement, Punitive Damages,
For You Colorado Locals: Down River is having its Spring Sale April 10-12
Posted: March 20, 2015 Filed under: Paddlesports | Tags: x, y, z Leave a comment
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Support Environmental Education and call your Represenative to get their support.
Posted: March 19, 2015 Filed under: Uncategorized | Tags: x, y, z Leave a commentCongressional FY 2016 Appropriations Support Letters
for Environmental Education
Action Needed Now: First Deadline Thurs., March 18th
Details at
As with the excellent ongoing efforts to gather cosponsors for the No Child Left Inside Act (NCLI), outreach to ask our legislators to sign letters of support for environmental education appropriations holds great opportunities this year, and some big challenges, and the deadlines for various funding items are all before the end of March.
Congressional appropriations committees and subcommittees will be considering the FY 2016 budget shortly, so now is the time for all of us to advocate for the environmental education programs we know are critical to our communities and the country. The primary way our voices are heard by decision-makers in Congress is via a set of letters we ask our legislators to endorse that are addressed to the appropriations committees. We all need to ask our Senators and House members to sign these letter by the mid- to late-March deadlines.
The materials you will need – detailed instructions for you, the appropriations letters for the legislators’ endorsement, background briefings and instructions for them, and an update on NCLI – can be downloaded from www.naaee.net/advocacy. We have not gotten all of the materials from the Legislature yet, so do check back on Monday and Tuesday, and we’ll email you when we post more… but don’t wait to get started!
And it’s very important that we advocate for our cause with all legislators, even those who we know will not sign these letters. Reasons include: they are in the appropriations leadership and have policies not to sign any of these letters; they don’t want to go on record supporting these items; or they have a less than positive view of environmental education… but they none-the-less really value the good work your local EE institutions and schools do. Engaging these non-signing lawmakers, to make sure that they at least understand what environmental education looks like in their community is as important as getting the needed signatures.
This is also a great time to ask for No Child Left Inside legislation cosponsorship. NCLI and the environmental education appropriations complement each other with the range of programs and audiences.
Thank you in advance for helping to secure the future of environmental education and please pass this on to your colleagues today!
It’s a balance, healthy kids versus safe kids, health adults versus safe adults, polluted air versus clean air or more importantly, personal choice versus you telling me what to do.
Posted: March 18, 2015 Filed under: Cycling | Tags: biking, Cycling, Helmets, Sweden Leave a commentStudy from Sweden looks at the effects of cycling after a 2005 law requiring children to wear helmets while riding bikes.
This article came from a study by the Swedish Association of Transportation Planners. The article, What happens when you mandate helmet-wearing among young Swedish cyclists? is based on the study.
These are quotes from the article. Emphasize in bold is mine.
Mandatory helmet laws have been controversial in that they seem to have a limited effect on the number of head injuries, if at all, but instead are correlated with a decrease in cycling numbers.
Graph 1 shows the number of head injuries as a share of injuries to all parts of the body. The downward sloping lines indicate that head injuries are falling faster than other injuries.
As we can see there does not seem to be a difference between the trends of the different modes, suggesting that if there is any fall in the share of head injuries it is likely to be an effect of something that also applies to other or all road users.
However there does seem to be another effect of helmet laws, namely a decline in cycling among school children. In 1983 57% of children aged 7-9 had permission from their parents to bike to school without adult companion, and for the age group 10-12, 94% had such permission. By the year 2007 this had decreased to 25% and 79% respectively. Bearing in mind, the helmet law was introduced in 2005, we can’t be sure of a correlation, because the data consists of surveys from 1983 and then 2007. But we do also have data recording that the share of school journeys by bicycle fell from 33% in 2006 one year after the legislation to 29% in year 2012. The evidence does suggest that the effect of the helmet law primarily is that fewer children bike to school.
So the data does show a decline in cycling, but without annual surveys it’s hard to be sure of a correlation. However, a Danish report made the same link between declining cycling to school and helmet promotion and safety/scare campaigns. They determined that half the decline in cycling was caused by these campaigns, and half was caused by other factors such as more car traffic and longer distances to school.
From my perspective, laws telling me how to live don’t work, and this study shows that. Whether I wear a helmet is more personal issue that I should be allowed to decide.
More importantly, cycling increases the cyclist’s health, decreases air pollution and general promotes health. That is a greater benefit to all of us then the individual benefit of forcing someone to do something they may or may not want to do.
See: What happens when you mandate helmet-wearing among young Swedish cyclists?
Other Articles about this subject:
Bike Share programs flourish when helmets are not required http://rec-law.us/WrqmXI
Study shows that head injuries are on the rise on the slopes even though more people are wearing helmets http://rec-law.us/U91O73
Law requires helmets, injuries down fatalities up? http://rec-law.us/YwLcea
Great editorial questioning why we need laws to “protect” us from ourselves. http://rec-law.us/Ayswbo
Survey of UK physicians shows them against mandatory bicycle helmet laws. http://rec-law.us/sYuH07
Recent UK poll shows that 10% of cyclists would quite biking if there was a compulsory helmet law. http://rec-law.us/t1ByWk
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2015 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
Google+: +Recreation
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
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By Recreation Law Rec-law@recreation-law.com James H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Cycling, Helmets, Sweden, Biking
Colorado Avalanche Information Center Kow Before You Go campaign kicks off
Posted: March 17, 2015 Filed under: Avalanche | Tags: avalanche, CAIC, Colorado Avalanche Information Center, Know Before You Go, x, y, z Leave a commentThe 2014/2015 season has been very interesting so far. We have had some great powder days as well as weeks of high pressure and no new snow. However, our snowpack is hovering around average and there is plenty of skiing, riding, and snowmobiling to come!
Today we are launching our 6-week Know Before You Go campaign! Donate now. This is our annual fundraising drive that allows us to be creative and expand the Colorado Avalanche Information Center’s operations. The money raised during this campaign will go toward the following goals.
1. Create and launch Know Before You Go Colorado. This education initiative will be modeled after the Utah Avalanche Center’s model but will be focused on Colorado’s snowpack and avalanche problems.
2. Improve the CAIC’s backcountry forecast program. More forecasting staff means more people that are part of a statewide avalanche safety effort. More forecasters will mean more local field data, which in turn will create more accurate, and timely avalanche forecasts for you, the backcountry user.
3. The expanded resources also mean expansion of our IT infrastructure. Last season we asked you to invest in the development of a mobile app. You responded and we launched V1 in January. We are excited to continually develop the capabilities our website as well as of the app and we need your help to do that.
You want your forecast center, the CAIC, to be the best. Donate today and help us grow and give you the best center in the United States. Once again, I feel so strongly about bringing Know Before You Go to Colorado that I will kick off the campaign with my own $200 donation.
Starting today and for the next 6 weeks the Friends of CAIC will be offering prizes, challenges, and incentives, to anyone who donates $25 or more. Click here for more information or to DONATE NOW!
We will be accepting donations in the following ways:
Donate on Crowdrise: https://www.crowdrise.com/knowbeforeyougo
(Remember you don’t have to pay the “Optional Processing Fee”. Click on the text and select 0%.)
Mail us a check: PO BOX 140817 Denver, CO 80214
Donate ONLINE on our website: http://friendsofcaic.org
Hand us cash!
We are looking forward to your support over the next 6 weeks!
Sincerely,
Aaron Carlson
Executive Director
Friends of CAIC
Ethan Greene
Director
Colorado Avalanche Information Center
Federal Court in Idaho holds camp not liable for assault on third party by runaway minors.
Posted: March 16, 2015 Filed under: Idaho, Minors, Youth, Children, Summer Camp | Tags: assault, Big Sky Summer Adventure Program, Camp, Custody and Control, Explorations, Float Trip, Idaho, LLC., Montana, Phoenix Mountain Collaborative, Run away, Runaway, Summer Camp, Treatment Program, Trout Creek, Youth Camp Leave a commentThe Court did find that the camp was still in the custody and control of the minors during the assault which occurred three days after the youth had run away from the camp.
Gadman v. Martin, 2014 U.S. Dist. LEXIS 83883
State: Idaho, United States District Court for the District of Idaho
Plaintiff: Vera Gadman
Defendant: Joseph Martin; Marshall Dittrich; Penelope James; and Phoenix Mountain Collaborative, LLC.
Plaintiff Claims: Negligence
Defendant Defenses: No duty
Year: 2014
Holding: for the defendant
This case is about the escape of two boys from a summer program for “troubled” youth. These programs have achieved fame and notoriety based on various issues of successes and failures, as well as abuse. However, this legal issue is important to anyone who is taking care of youth at a camp… In this one two kids at the camp ran away and then assaulted a third party. The person the runaway kids assaulted then sued the camp for her injuries.
The defendant camp was operated in Montana. During one part of the session, the youth were rafting the Clark Fork River. The Clark Fork flows from Montana to Idaho. One night during the river trip the campers were on property owned by the defendant camp. The youth ran away.
Neither of the youth who ran away from the camp had a history of violence. They seemed to be enrolled in the program because of drug use and generally being really stupid kids. Both youth has been on a run-away watch a system developed by the camp and had their journals and shoes removed. However, their shoes were returned to them for the rafting trip.
The school had a “Run Watch Policy” which the court pointed out, quoted from and found the school had not followed. “Explorations will take all reasonable precautions pertinent to each individual student so as to reduce the possibility of their escape from our custody.”
The defendant camp filed a motion for summary judgment, and this decision is based on that motion.
Analysis: making sense of the law based on these facts.
The defense was based on two theories.
1) they owed no duty to Ms. Gadman [plaintiff] and
2) the actions of Mr. Dittrich and Mr. Martin (youth runaways) were not foreseeable [to cause injury to the plaintiff] to either Explorations or Ms. James [defendants].
The determination under Idaho law as to whether the defendants owed a duty of care to the plaintiff’s when they are in charge of youth “who are dangerous or who have dangerous propensities“ is a two-part test.
The first part requires a determination of whether the supervising body actually has control over the individual in question, and then secondly, if so, a determination must be made whether the harm caused by the individual was foreseeable.
The court then looked at the first part of the test.
One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.
The first part of the test is whether or not the supervising authority has actual control over the youth. Here the youth were not allowed to leave the camp without the camps or the youth’s parent’s permissions. Even though the youth had voluntarily, and without permission, left the campsite and been away from the camp for two days at the time of the attack, the court held the camp was still in control, for the purposes of the test, of the youth.
Ordinarily, there is no affirmative duty to assist or protect someone unless special circumstances exist. The analysis is not what is the relationship between the affected third party and the youth in this case, but the relationship between the youth and the camp. “Thus, the duty alleged in this case would have to arise from a supervisory relationship where Ms. James/Explorations exercised some level of control over Mr. Martin and Mr. Dittrich.”
The fact the youth ran away was not valid excuse or abrogation of control by the camp.
Explorations was responsible for the care and custody of the youth participants in its programs. The minor participants could not leave the program without their parents’ permission. When asked if the participants of the outdoor program were “free to leave,” Ms. James stated in her deposition that participants who were minor could only leave if they had their parents’ permission, otherwise they were not free to leave. Ms. James went on to state that the steps taken to assure participants do not leave are that “care is provided, oversight and care, with our instructor team the entire time the students are there.”
Most of this analysis was based on the camps Run Watch Policy and Run Watch Kit for leaders. Because the camp knew the kids would run away and prepared for it, they knew it was possible and consequently, the court felt they did not give up control over a kid when the kid did run. “The Court finds upon these undisputed facts that Mr. Martin and Mr. Dittrich were in the custody and control of Explorations at the time of the attack.”
The next issue was the foreseeability question. In this case, the question was not whether it was foreseeable that the kids would run away, but whether it was foreseeable, the kids would assault a third party.
Foreseeability, ‘contemplates more than the mere possibility of aggressive tendencies…. The concept of foreseeability is much more narrowly drawn in this circumstance, … i.e. violence, particularly of a sexual nature, toward members of the public … must be manifest or ostensible, and highly likely to occur.
The plaintiff argued the violent acts of the defendant were foreseeable because of the youth’s drug use and prior attendance at treatment facilities. However, the court did not agree with this.
Although the boys had struggled in various aspects of their lives before attending Explorations, there is nothing in their histories that was known to Explorations that made their actions on July 31, 2011 [date of the attack] foreseeable.
The theft of drugs by one participant who had run away in the past, nor the fact that the kids had been planning to run away did not change the court’s opinion of this. The planning though, was only discovered the history of the youth, after the youth had been caught. Both arguments by the plaintiffs were too speculative according to the court.
The court held therefore, that the defendant camp was not liable.
So Now What?
Although the defendant won this case, it was a close one. All camps should read this with the understanding that a minor that has been delivered to them by their parents are in their custody and control until they are delivered back to their parents.
Whether or not this can be moderated by contract, I’m not sure.
This case would have gone the other way if the youth had a history of violence. The defendant notified the boy’s parents and law enforcement within 90 minutes of the discovery the boys were missing. Even calling law enforcement did not change the issue of control.
What do you think? Leave a comment.
 Jim Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Outdoor Recreation Insurance, Risk Management, and Law
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SCARPA North America Recalls Ski Boots with Tronic System Due to Fall Hazard
Posted: March 14, 2015 Filed under: Uncategorized | Tags: Consumer Product Safety Council, CPSC, Evo, EVO Ski Boots, F1 EVO Ski Boots, F1 EVO Ski Boots with Tronic system, Recall, Scarpa, Scarpa North America, Ski Boots Leave a commentName of Product: F1 EVO Ski Boots with Tronic system component.
Hazard: The Tronic system, can unexpectedly switch from ski mode to walk mode, not allowing the boot to release from the binding, posing a fall or injury hazard.
Remedy: Refund
Consumers should immediately stop using the boots and contact SCARPA North America for a full refund.
Consumer Contact: SCARPA North America toll-free at (866) 998-2895 from 8 a.m. to 5 p.m. MT Monday through Friday or online at http://www.scarpa.com and click on the tab marked “F1 EVO RECALL” for more information.
Units: About 2100 in U.S. and 250 in Canada
Description: This recall involves the men’s and women’s SCARPA F1 EVO ski boots with the Tronic system component. The Tronic system locks the boot into the ski binding. The boots were sold in royal blue for men and aqua blue for women with “SCARPA” written in white letters on the lower outer side of the boot. The model name “F1 EVO” is printed on the upper right outside ankle cuff of the boots.
Incidents/Injuries: The firm has received two reports of torn knee ligament injuries following falls, when the boots failed to release from the binding.
Sold at: Authorized SCARPA dealers and retailers in the United States and Canada, including Oregon Mountain Community, REI and Skimo Co., and online at http://www.scarpa.com from October 2014 through January 2015 for about $700.
Manufacturer: CALZATURIFICIO S.C.A.R.P.A. S.P.A., of Italy
Importer/Distributor: SCARPA North America Inc., of Boulder, Colo.
Retailers: If you are a retailer of a recalled product you have a duty to notify your customers of a recall. If you can, email your clients or include the recall information in your next marketing communication to your clients. Post any Recall Poster at your stores and contact the manufacturer to determine how you will handle any recalls.
For more information on this see:
For Retailers
Recalls Call for Retailer Action
Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.
Product Liability takes a different turn. You must pay attention, just not rely on the CPSC.
Retailer has no duty to fit or instruct on fitting bicycle helmet
Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.
For Manufacturers
The legal relationship created between manufactures and US consumers
What do you think? Leave a comment.
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Update: Clean Trails, you should join
Posted: March 12, 2015 Filed under: Uncategorized | Tags: Backpacking, Clean Trails, Clean Up, Hiking, Litter, x, y, z Leave a comment
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Volunteer Spotlight – Brandon Reidhaar
MassBike Bills Receive Substantial Sponsors
Posted: March 10, 2015 Filed under: Cycling | Tags: Cycling, Massachusetts, MassBikes, Safe Riding, Safe Routhes, x, y, z Leave a comment
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Georgia Limited Liability of Owners and Operators of Sport Fishing Locations
Posted: March 9, 2015 Filed under: Georgia | Tags: Fishing, Georgia, Immunity, Limited Liability Leave a commentOFFICIAL CODE OF GEORGIA ANNOTATED
Copyright 2014 by The State of Georgia
All rights reserved.
TITLE 27. GAME AND FISH
CHAPTER 4. FISH
ARTICLE 7. LIMITED LIABILITY OF OWNERS AND OPERATORS OF SPORT FISHING LOCATIONS
GO TO GEORGIA STATUTES ARCHIVE DIRECTORY
O.C.G.A. § 27-4-280 (2014)
§ 27-4-280. Legislative findings
The General Assembly recognizes that persons who participate in the sport of fishing may incur injuries as a result of the risks involved in such activity. The General Assembly also finds that the state and its citizens derive numerous economic and personal benefits from such activity. The General Assembly finds, determines, and declares that this article is necessary for the immediate preservation of the public peace, health, and safety. It is, therefore, the intent of the General Assembly to encourage the sport of fishing by limiting the civil liability of those involved in such activity.
O.C.G.A. § 27-4-281 (2014)
§ 27-4-281. Definitions
As used in this article, the term:
(1) “Fishing location” means a body of water, whether naturally occurring or manmade, containing fish and for the privilege of fishing there a fee is charged.
(2) “Participant” means any person who enters the fishing location, singly or with a group, either by paying a fee or having the fee waived, for the purpose of fishing, education, or enjoying the outdoor environment and any person who accompanies such person.
HISTORY: Code 1981, § 27-4-281, enacted by Ga. L. 1998, p. 1659, § 1.
Title Note
§ 27-4-282. Immunity from liability for injury or death; exceptions
(a) Except as provided in subsection (b) of this Code section, the owner or operator of any fishing location, or any other person, corporation, group, partnership, or other entity, shall not be liable for an injury to or the death of a participant resulting from the inherent risks of fishing, including but not limited to drowning, and, except as provided in subsection (b) of this Code section, no participant or participant’s representative shall make any claim against, maintain an action against, or recover from an owner or operator, or any other person or entity for injury, loss, damage, or death of the participant resulting from any of the inherent risks of fishing.
(b) Nothing in subsection (a) of this Code section shall prevent or limit the liability of an owner or operator or any other person or entity if the owner or operator:
(1) Owns, leases, rents, or otherwise is in lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition which was known or should have been known to the owner or operator and for which signs warning of the latent defect have not been conspicuously posted;
(2) Commits an act or omission that constitutes willful or wanton disregard for the safety of the participant, and that act or omission caused the injury; or
(3) Intentionally injures the participant.
(c) Nothing in subsection (a) of this Code section shall prevent or limit the liability of an owner or operator under liability provisions as set forth in the products liability laws.
HISTORY: Code 1981, § 27-4-282, enacted by Ga. L. 1998, p. 1659, § 1.
O.C.G.A. § 27-4-282 (2014)
§ 27-4-283. Warning sign to be posted; contents of warning sign
(a) Every owner and operator of a fishing location shall post and maintain signs which contain the warning notice specified in subsection (b) of this Code section. Such signs shall be placed in a clearly visible location on or near the water and at the location where the fee is paid. The warning notice specified in subsection (b) of this Code section shall appear on the sign in black letters, with each letter to be a minimum of one inch in height. Every written contract entered into by an owner or operator shall contain in clearly readable print the warning notice specified in subsection (b) of this Code section.
(b) The signs and contracts described in subsection (a) of this Code section shall contain the following warning notice:
WARNING
Under Georgia law, an owner or operator of a fishing location is not liable for an injury to or the death of a participant from the inherent risks of fishing, including but not limited to drowning, pursuant to Article 7 of Chapter 4 of Title 27 of the Official Code of Georgia Annotated.
(c) Failure to comply with the requirements concerning warning signs and notices provided in this Code section shall prevent an owner or operator from invoking the privileges of immunity provided by this article.
HISTORY: Code 1981, § 27-4-283, enacted by Ga. L. 1998, p. 1659, § 1.
Delaware Equine Liability Act
Posted: March 9, 2015 Filed under: Delaware, Equine Activities (Horses, Donkeys, Mules) & Animals | Tags: Delaware, Delaware Equine Liability Act, Equine, Immunity Leave a commentDELAWARE CODE ANNOTATED
Copyright 2015 by The State of Delaware
TITLE 10. COURTS AND JUDICIAL PROCEDURE
PART V. LIMITATION OF ACTIONS
CHAPTER 81. PERSONAL ACTIONS
GO TO DELAWARE STATUTES ARCHIVE DIRECTORY
10 Del. C. § 8140 (2015)
§ 8140. Liability of persons involved in equine activities
(a) For purposes of this section, the following terms shall have the meaning ascribed herein:
(1) a. “Engages in an equine activity” means riding, training, assisting in medical treatment of, driving, or being a passenger upon an equine, whether mounted or unmounted or any person assisting a participant or show management.
b. “Engages in an equine activity” does not include being a spectator at an equine activity, except in cases where the spectator places such spectator’s person in an unauthorized area and in immediate proximity to the equine activity;
(2) “Equine” means a horse, pony, mule, donkey or hinny;
(3) “Equine activity” means:
a. Equine shows, fairs, competitions, performances or parades that involve any or all breeds of equines and any of the equine disciplines, including, but not limited to, dressage, hunter and jumper horse shows, grand prix jumping, 3-day events, combined training, rodeos, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding and western games, and hunting;
b. Equine training or teaching activities, or both;
c. Boarding equines;
d. Riding, inspecting or evaluating an equine belonging to another, whether or not the owner has received some monetary consideration or other thing of value for the use of the equine or is permitting a prospective purchaser of the equine to ride, inspect or evaluate the equine;
e. Rides, trips, hunts or other equine activities of any type, however informal or impromptu, that are sponsored by an equine activity sponsor; and
f. Placing or replacing horseshoes on an equine;
(4) “Equine activity sponsor” means an individual, group, club, partnership or corporation, whether or not the sponsor is operating for profit or nonprofit, which sponsors, organizes or provides the facilities for an equine activity, including, but not limited to, pony clubs, 4-H clubs, hunt clubs, riding clubs, school and college-sponsored classes, programs and activities, therapeutic riding programs, and operators, instructors and promoters of equine facilities, including, but not limited to, stables, clubhouses, ponyride strings, fairs and arenas at which the activity is held;
(5) “Equine professional” means a person engaged for compensation:
a. In instructing a participant or renting to a participant an equine for the purpose of riding, driving or being a passenger upon the equine; or
b. In renting equipment or tack to a participant;
(6) “Inherent risks of equine activities” means those dangers or conditions which are an integral part of equine activities, including, but not limited to:
a. The propensity of an equine to behave in ways that may result in injury, harm or death to persons on or around them;
b. The unpredictability of an equine’s reaction to such things as sounds, sudden movements, and unfamiliar objects, persons or other animals;
c. Certain hazards such as surface and subsurface conditions;
d. Collisions with other equines or objects; and
e. The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant’s ability;
(7) “Participant” means any person, whether amateur or professional, who engages in an equine activity, whether or not a fee is paid to participate in the equine activity.
(b) Except as provided in subsection (c) of this section, an equine activity sponsor, an equine professional or any other person, which shall include a corporation or partnership, shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activities. Except as provided in subsection (c) of this section, no participant or participant’s representative shall make any claim against, maintain an action against or recover from an equine activity sponsor, an equine professional or any other person for injury, loss, damage or death of the participant resulting from any of the inherent risks of equine activities.
(c) (1) This section shall not apply to the horse racing industry as regulated in Title 3.
(2) Nothing in subsection (b) of this section shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional or person:
a. 1. Provided the equipment or tack, and knew or should have known that the equipment or tack was faulty, and such equipment or tack was faulty to the extent that it did cause the injury; or
2. Provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity and determine the ability of the participant to safely manage the particular equine based on the participant’s representations of the participant’s ability;
b. Owns, leases, rents or otherwise is in lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition which was known or should have been known to the equine activity sponsor, equine professional or person and for which warning signs have not been conspicuously posted;
c. Commits an act or omission that constitutes wilful or wanton disregard for the safety of the participant, and that act or omission caused the injury; or
d. Intentionally injures the participant.
(3) Nothing in subsection (b) of this section shall prevent or limit the liability of an equine activity sponsor or an equine professional under either product liability or trespass claims.
(d) (1) Every equine professional shall post and maintain signs which contain the warning notice specified in paragraph (d)(2) of this section. Such signs shall be placed in clearly visible locations on or near stables, corrals or arenas where the equine professional conducts equine activities if such stables, corrals or arenas are owned, managed or controlled by the equine professional. The warning notice specified in paragraph (d)(2) of this section shall appear on the sign in red and white, with each letter to be a minimum of 1 inch in height. Every written contract entered into by an equine professional for the providing of professional services, instruction or the rental of equipment or tack or an equine to a participant, whether or not the contract involves equine activities on or off the location or site of the equine professional’s business, shall contain in clearly readable print the warning notice specified in paragraph (d)(2) of this section.
(2) The signs and contracts described in paragraph (d)(1) of this section shall contain the following warning notice:
WARNING
Under Delaware law, an equine professional is not liable for an injury to or the death of a participant in equine activities resulting from the inherent risks of equine activities, pursuant to 10 Delaware Code § 8140.
Colorado Equine Liability Act
Posted: March 9, 2015 Filed under: Colorado, Equine Activities (Horses, Donkeys, Mules) & Animals | Tags: Equine, Equine Liability Act, Horse, Immunity, Llama Leave a commentC.R.S. 13-21-119 (2014)
COLORADO REVISED STATUTES
TITLE 13. COURTS AND COURT PROCEDURE
DAMAGES
ARTICLE 21.DAMAGES
PART 1. GENERAL PROVISIONS
13-21-119. Equine activities – llama activities – legislative declaration – exemption from civil liability13-21-119. Equine activities – llama activities – legislative declaration – exemption from civil liability
(1) The general assembly recognizes that persons who participate in equine activities or llama activities may incur injuries as a result of the risks involved in such activities. The general assembly also finds that the state and its citizens derive numerous economic and personal benefits from such activities. It is, therefore, the intent of the general assembly to encourage equine activities and llama activities by limiting the civil liability of those involved in such activities.
(2) As used in this section, unless the context otherwise requires:
(a) “Engages in a llama activity” means riding, training, assisting in medical treatment of, driving, or being a passenger upon a llama, whether mounted or unmounted or any person assisting a participant or show management. The term “engages in a llama activity” does not include being a spectator at a llama activity, except in cases where the spectator places himself in an unauthorized area and in immediate proximity to the llama activity.
(a.5) “Engages in an equine activity” means riding, training, assisting in medical treatment of, driving, or being a passenger upon an equine, whether mounted or unmounted or any person assisting a participant or show management. The term “engages in an equine activity” does not include being a spectator at an equine activity, except in cases where the spectator places himself in an unauthorized area and in immediate proximity to the equine activity.
(b) “Equine” means a horse, pony, mule, donkey, or hinny.
(c) “Equine activity” means:
(I) Equine shows, fairs, competitions, performances, or parades that involve any or all breeds of equines and any of the equine disciplines, including, but not limited to, dressage, hunter and jumper horse shows, grand prix jumping, three-day events, combined training, rodeos, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding and western games, and hunting;
(II) Equine training or teaching activities or both;
(III) Boarding equines;
(IV) Riding, inspecting, or evaluating an equine belonging to another, whether or not the owner has received some monetary consideration or other thing of value for the use of the equine or is permitting a prospective purchaser of the equine to ride, inspect, or evaluate the equine;
(V) Rides, trips, hunts, or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor; and
(VI) Placing or replacing horseshoes on an equine.
(d) “Equine activity sponsor” means an individual, group, club, partnership, or corporation, whether or not the sponsor is operating for profit or nonprofit, which sponsors, organizes, or provides the facilities for, an equine activity, including but not limited to: Pony clubs, 4-H clubs, hunt clubs, riding clubs, school and college-sponsored classes, programs and activities, therapeutic riding programs, and operators, instructors, and promoters of equine facilities, including but not limited to stables, clubhouses, ponyride strings, fairs, and arenas at which the activity is held.
(e) “Equine professional” means a person engaged for compensation:
(I) In instructing a participant or renting to a participant an equine for the purpose of riding, driving, or being a passenger upon the equine; or
(II) In renting equipment or tack to a participant.
(f) “Inherent risks of equine activities” and “inherent risks of llama activities” means those dangers or conditions which are an integral part of equine activities or llama activities, as the case may be, including, but not limited to:
(I) The propensity of the animal to behave in ways that may result in injury, harm, or death to persons on or around them;
(II) The unpredictability of the animal’s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals;
(III) Certain hazards such as surface and subsurface conditions;
(IV) Collisions with other animals or objects;
(V) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within his or her ability.
(f.1) “Llama” means a South American camelid which is an animal of the genus lama, commonly referred to as a “one llama”, including llamas, alpacas, guanacos, and vicunas.
(f.2) “Llama activity” means:
(I) Llama shows, fairs, competitions, performances, packing events, or parades that involve any or all breeds of llamas;
(II) Using llamas to pull carts or to carry packs or other items;
(III) Using llamas to pull travois-type carriers during rescue or emergency situations;
(IV) Llama training or teaching activities or both;
(V) Taking llamas on public relations trips or visits to schools or nursing homes;
(VI) Participating in commercial packing trips in which participants pay a llama professional to be a guide on a hike leading llamas;
(VII) Boarding llamas;
(VIII) Riding, inspecting, or evaluating a llama belonging to another, whether or not the owner has received some monetary consideration or other thing of value for the use of the llama or is permitting a prospective purchaser of the llama to ride, inspect, or evaluate the llama;
(IX) Using llamas in wool production;
(X) Rides, trips, or other llama activities of any type however informal or impromptu that are sponsored by a llama activity sponsor; and
(XI) Trimming the nails of a llama.
(f.3) “Llama activity sponsor” means an individual, group, club, partnership, or corporation, whether or not the sponsor is operating for profit or nonprofit, which sponsors, organizes, or provides the facilities for, a llama activity, including but not limited to: Llama clubs, 4-H clubs, hunt clubs, riding clubs, school and college-sponsored classes, programs and activities, therapeutic riding programs, and operators, instructors, and promoters of llama facilities, including but not limited to stables, clubhouses, fairs, and arenas at which the activity is held.
(f.4) “Llama professional” means a person engaged for compensation:
(I) In instructing a participant or renting to a participant a llama for the purpose of riding, driving, or being a passenger upon the llama; or
(II) In renting equipment or tack to a participant.
(g) “Participant” means any person, whether amateur or professional, who engages in an equine activity or who engages in a llama activity, whether or not a fee is paid to participate in such activity.
(3) Except as provided in subsection (4) of this section, an equine activity sponsor, an equine professional, a llama activity sponsor, a llama professional, a doctor of veterinary medicine, or any other person, which shall include a corporation or partnership, shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activities, or from the inherent risks of llama activities and, except as provided in subsection (4) of this section, no participant nor participant’s representative shall make any claim against, maintain an action against, or recover from an equine activity sponsor, an equine professional, a llama activity sponsor, a llama professional, a doctor of veterinary medicine, or any other person for injury, loss, damage, or death of the participant resulting from any of the inherent risks of equine activities or resulting from any of the inherent risks of llama activities.
(4) (a) This section shall not apply to the horse racing industry as regulated in article 60 of title 12, C.R.S.
(b) Nothing in subsection (3) of this section shall prevent or limit the liability of an equine activity sponsor, an equine professional, a llama activity sponsor, a llama professional, or any other person if the equine activity sponsor, equine professional, llama activity sponsor, llama professional, or person:
(I) (A) Provided the equipment or tack, and knew or should have known that the equipment or tack was faulty, and such equipment or tack was faulty to the extent that it did cause the injury; or
(B) Provided the animal and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity or llama activity and determine the ability of the participant to safely manage the particular animal based on the participant’s representations of his ability;
(II) Owns, leases, rents, or otherwise is in lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition which was known to the equine activity sponsor, equine professional, llama activity sponsor, llama professional, or person and for which warning signs have not been conspicuously posted;
(III) Commits an act or omission that constitutes willful or wanton disregard for the safety of the participant, and that act or omission caused the injury;
(IV) Intentionally injures the participant.
(c) Nothing in subsection (3) of this section shall prevent or limit the liability of an equine activity sponsor, equine professional, llama activity sponsor, or llama professional:
(I) Under liability provisions as set forth in the products liability laws; or
(II) Under liability provisions in section 35-46-102, C.R.S.
(5) (a) Every equine professional shall post and maintain signs which contain the warning notice specified in paragraph (b) of this subsection (5). Such signs shall be placed in a clearly visible location on or near stables, corrals, or arenas where the equine professional conducts equine activities if such stables, corrals, or arenas are owned, managed, or controlled by the equine professional. The warning notice specified in paragraph (b) of this subsection (5) shall appear on the sign in black letters, with each letter to be a minimum of one inch in height. Every written contract entered into by an equine professional for the providing of professional services, instruction, or the rental of equipment or tack or an equine to a participant, whether or not the contract involves equine activities on or off the location or site of the equine professional’s business, shall contain in clearly readable print the warning notice specified in paragraph (b) of this subsection (5).
(b) The signs and contracts described in paragraph (a) of this subsection (5) shall contain the following warning notice:
WARNING
Under Colorado Law, an equine professional is not liable for an injury to or the death of a participant in equine activities resulting from the inherent risks of equine activities, pursuant to section 13-21-119, Colorado Revised Statutes.
(6) (a) Every llama professional shall post and maintain signs which contain the warning notice specified in paragraph (b) of this subsection (6). Such signs shall be placed in a clearly visible location on or near stables, corrals, pens, or arenas where the llama professional conducts llama activities if such stables, corrals, pens, or arenas are owned, managed, or controlled by the llama professional. The warning notice specified in paragraph (b) of this subsection (6) shall appear on the sign in black letters, with each letter to be a minimum of one inch in height. Every written contract entered into by a llama professional for the providing of professional services, instruction, or the rental of equipment or tack or a llama to a participant, whether or not the contract involves llama activities on or off the location or site of the llama professional’s business, shall contain in clearly readable print the warning notice specified in paragraph (b) of this subsection (6).
(b) The signs and contracts described in paragraph (a) of this subsection (6) shall contain the following warning notice:
WARNING
Under Colorado Law, a llama professional is not liable for an injury to or the death of a participant in llama activities resulting from the inherent risks of llama activities, pursuant to section 13-21-119, Colorado Revised Statutes.
Mooring v. Virginia Wesleyan College, et al. 257 Va. 509; 514 S.E.2d 619; 1999 Va. LEXIS 69
Posted: March 9, 2015 Filed under: Legal Case, Virginia | Tags: Boys and Girls Club, Intern, Volunteer, Volunteer Immunity Leave a commentMooring v. Virginia Wesleyan College, et al. 257 Va. 509; 514 S.E.2d 619; 1999 Va. LEXIS 69
Antonio Mooring, a Minor Who Sues by His Mother and Next Friend, Patricia Mooring, et al. v. Virginia Wesleyan College, et al.
Record No. 981270
SUPREME COURT OF VIRGINIA
257 Va. 509; 514 S.E.2d 619; 1999 Va. LEXIS 69
April 16, 1999, Decided
PRIOR HISTORY: [***1] FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK. Everett A. Martin, Jr., Judge.
COUNSEL: Philip J. Geib for appellants.
Allan S. Reynolds, Sr. (Reynolds, Smith & Winters, on brief), for appellees.
JUDGES: Present: All the Justices. OPINION BY JUSTICE ELIZABETH B. LACY.
OPINION BY: ELIZABETH B. LACY
OPINION
[**620] [*510] OPINION BY JUSTICE ELIZABETH B. LACY
Antonio Mooring, a minor, suffered a traumatic amputation of his right thumb when John Braley closed a door while Mooring had his hand on the portal of the doorway. The incident occurred at the Boys and Girls Club of Hampton Roads (the Club). Mooring, through his next friend, sued Braley and his employer, Virginia Wesleyan College. The trial court dismissed Mooring’s motion for judgment finding that Braley was a volunteer at the Club and entitled to charitable immunity as a result of the Club’s status as a charity. Because we find that Braley was not engaged in the charity’s work at the time of the alleged negligence, we conclude that the trial court erred in dismissing Mooring’s motion for judgment.
[*511] Braley is a professor at Virginia Wesleyan College, teaching in a recreation and leisure studies program. The Club contacted Braley seeking volunteers to work in its programs. In response, Braley established a program with the Club in which [***2] students in Braley’s recreation programming class were required to spend six hours observing the children and volunteering at the Club. The students were required to return to the classroom, design recreation programs for the children they observed, and then implement those programs at the Club. Braley would go to the Club to observe the students conducting the programs and would “help the students out” when they needed it. The students were not graded directly on the basis of their work at the Club, but on the basis of a report they submitted to Braley describing their learning experience.
On the day Mooring was injured, one of Braley’s students was conducting a wellness and body-conditioning program for thirteen to eighteen-year-olds in the Club’s weight room. The student was giving a talk to the participants and Braley was observing her. At the student’s request, Braley went to the door to keep younger children not involved in the student’s program out of the room. While Braley was tending the door, Mooring was injured.
The trial court held an evidentiary hearing on the defendants’ joint motion to dismiss. The parties stipulated that the Club was a charity entitled to [***3] charitable immunity and that Mooring was a beneficiary of the charity. The trial court held that because Braley received no extra compensation from the Club or Virginia Wesleyan College for the services he rendered, and because Braley’s role at the Club was both supervising his students and “helping the Club perform its good work,” he was “a volunteer at the Club” and thus entitled to charitable immunity under Moore v. Warren, 250 Va. 421, 463 S.E.2d 459 (1995). 1
1 In dismissing the motion for judgment against both defendants, the trial court did not specifically address whether Virginia Wesleyan College was entitled to charitable immunity, and this issue is not before us on appeal.
[**621] In Moore, an American Red Cross volunteer was sued for negligence allegedly committed while transporting the injured party to a routine medical visit in a car owned by the Red Cross. Providing transportation for such medical visits was a service of the Red Cross. The driver contended that he was “‘cloaked with the immunity [***4] of the charity'” and that charitable immunity was not limited to the charity itself. Id. at 422, 463 S.E.2d at 459. In resolving this issue of first impression, we stated:
[*512] Like any organization, a charity performs its work only through the actions of its servants and agents. Without a charity’s agents and servants, such as the volunteer here, no service could be provided to beneficiaries. Denying these servants and agents the charity’s immunity for their acts effectively would deny the charity immunity for its acts.
Id. at 423, 463 S.E.2d at 460. Based on this rationale, we included the driver in the immunity of the charity and held that he was immune from liability to the charity’s beneficiaries for negligence while he was “engaged in the charity’s work.” Id. at 425, 463 S.E.2d at 461. Thus, Moore requires [HN1] an individual seeking the cloak of a charity’s immunity to establish that he was an agent or servant of the charity at the time of the alleged negligence and that the alleged negligence for which he seeks immunity occurred while he was actually doing the charity’s work.
Assuming, without deciding, that the “role” Braley had at the Club identified by [***5] the trial court satisfied the requirement that Braley be an agent or servant of the Club, Braley qualifies for protection under the Club’s charitable immunity only if the alleged negligence occurred while he was doing the charity’s work. Mooring contends that at the time of the injury Braley’s “presence did not directly benefit the Club,” and that Braley presented no evidence that “he was doing anything in particular for the Club at the time of the incident.” We agree.
While Braley testified that he “helped out” at the Club whenever he could, the record shows that at the time of his alleged negligence, Braley was at the Club to observe the activities of his student. He was not there to directly perform any of the Club’s work; rather he was carrying out his duties as a professor at Virginia Wesleyan College. He was observing his student and acting as “doorkeeper” at the student’s request to allow his student to properly conduct the wellness class. Under these facts, we conclude that Braley was not entitled to charitable immunity because he was not engaged in the work of the charity at the time of his alleged negligence.
Accordingly, we will reverse the judgment of the trial [***6] court and remand the case for further proceedings.
Reversed and remanded.
Byrne, JR., v. Fords-Clara Barton Boys Baseball League, Inc., 236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357
Posted: March 9, 2015 Filed under: Legal Case, New Jersey | Tags: Baseball, Coach, Volunteer, Volunteer Immunity Leave a commentByrne, JR., v. Fords-Clara Barton Boys Baseball League, Inc., 236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357
George C. Byrne, JR., A Minor by his Guardian Ad Litem, Francine Byrne, and Francine Byrne, Individually, Plaintiffs-Appellants, v. Fords-Clara Barton Boys Baseball League, Inc., Defendant, and Dennis Bonk, Defendant-Respondent
No. A-4172-88T2
Superior Court of New Jersey, Appellate Division
236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357
September 19, 1989, Argued
October 4, 1989, Decided
COUNSEL: James J. Dunn argued the cause for appellants (Levinson, Axelrod, Wheaton & Grayzel, attorneys; Richard J. Levinson, of counsel; Richard J. Levinson and James J. Dunn, on the brief).
Salvatore P. DiFazio argued the cause for respondent (Golden, Rothschild, Spagnola & DiFazio, attorneys).
JUDGES: Pressler, Long and Landau. The opinion of the court was delivered by Pressler, P.J.A.D.
OPINION BY: PRESSLER
OPINION
[*186] [**1223] In evident response to the increasing cost of liability insurance and, in some instances the unavailability of liability insurance, for volunteer athletic coaches, managers and officials of nonprofit sports teams, 1 the Legislature, by L. 1986, c. 13, adopted N.J.S.A. 2A:62A-6, amended by L. 1988, c. 87, which affords those volunteers immunity from tort liability subject to the conditions and exceptions specified therein. This appeal from a summary judgment requires us to construe paragraph (c) of the Act, which conditions the availability of the immunity, to some degree at least, upon the volunteer’s participation in a safety and training program.
1 See, e.g., Legislative Summaries: Sports Law, 10 Seton Hall Legis. J. 332 (1987).
[***2] The facts relevant to the issue before us are not in dispute. In the spring of 1986, plaintiff George C. Byrne, Jr., then 11 years old, was enrolled in the Fords-Clara Barton Baseball League, Inc. The League, while not affiliated with Little League Baseball, Inc., is nevertheless similarly organized, structured and conducted, offering inter-team competitions for similarly aged youngsters. Defendant Dennis Bonk was the coach of the team to which the infant plaintiff was assigned. On May 13, 1986, the day after the effective date of N.J.S.A. 2A:62A-6, Bonk instructed plaintiff to “warm-up” the pitcher. [*187] Although plaintiff was wearing most of the catcher’s special protective gear, he was not, in violation of the League’s rules, wearing a catcher’s mask. During the warm-up, he was struck in the eye by a pitched ball, sustaining the injury which is the gravamen of this complaint. The complaint charged Bonk both with ordinary negligence and with “willful, wanton, reckless and gross” negligence.
Bonk’s motion for summary judgment dismissing the complaint as to him relied on N.J.S.A. 2A:53A-7 (charitable immunity) as well as on N.J.S.A. 2A:62A-6. The trial judge [***3] ruled that N.J.S.A. 2A:53A-7 was inapplicable to the claim against Bonk, as opposed to the League, because of its express exception of “agents or servants” from the immunity it affords. Bonk does not challenge that ruling on this appeal.
With respect to the applicability of N.J.S.A. 2A:62A-6, both plaintiff and this defendant relied on paragraph (c), which prior to its 1988 amendment provided in full as follows:
[HN1] Nothing in this section shall be deemed to grant immunity to any person causing damage by his willful, wanton, or grossly negligent act of commission or omission, nor to any coach, manager, or official who has not participated in a safety orientation and training program established by the league or team with which he is affiliated.
At least for purposes of the summary judgment motion, Bonk conceded that he had never participated in a safety orientation or training program, and the reason he had not was the League’s failure to have established one.
The issue then is whether paragraph (c), as originally adopted, required participation as a condition of immunity only if the league or team had established a safety and training program or if, to the contrary, the [***4] legislative intention was to mandate the establishment of a program as a quid pro quo, as it were, for the immunity, thus granting it only to those volunteers who had actually participated in such a program. [**1224] The trial court judge declined to read the statute as requiring the establishment of a safety and training program for volunteers, concluding therefore that a volunteer who had had no [*188] training in safety because there was no program for him to attend was fully entitled to the statutory immunity. Accordingly, it entered partial summary judgment dismissing the ordinary negligence claims against Bonk. 2 We granted plaintiff’s motion for leave to appeal and now reverse.
2 The trial judge did not rule on the wanton and gross negligence claims, concluding that questions of fact were involved, and defendant did not seek leave to cross-appeal from that determination. It is therefore not before us. See R. 2:5-6(b).
The direct legislative history is both sparse and inconclusive. The bill, A-2398, [***5] which was finally adopted as L. 1986, c. 13, had been first introduced and passed in the Assembly, whose version of paragraph (c) excepted only willful, wanton, or grossly negligent acts. The provision respecting safety and training programs was added by the Senate in its version of the bill, S-1678, which also added paragraphs (d), (e) and (f), all of which further limit and condition the immunity afforded by the Assembly bill. 3 The Statement accompanying the Senate version is not particularly helpful in construing its intention since, in explaining the addition to paragraph (c), it uses exactly the same verbiage as the statutory text.
3 Paragraph (d) makes the immunity inapplicable “to any person causing damage as the result of his negligent operation of a motor vehicle.” Paragraph (e) withholds the immunity from a person “permitting a sport competition or practice to be conducted without supervision.” Paragraph (f) makes clear the Act’s inapplicability to school coaches, managers, and officials.
[***6] We recognize that there is an ambiguity in the manner in which the operative clause of paragraph (c) was drawn. Normally that ambiguity would have required us to determine, without benefit of express legislative explication, whether the general legislative purpose to accord the immunity was meant to prevail over the safety concerns expressed by that paragraph or not. We need not, however, engage in that debate since the Legislature, by its 1988 amendment of paragraph (c), left no doubt that its original intent had been to condition the immunity [*189] upon the volunteer’s actual participation in an appropriate program. 4
4 The trial court apparently did not consider the effect of the 1988 amendment and its legislative history on this interpretation problem of the 1986 Act. Nor did either counsel bring the amendment to the attention of the trial court or this court.
By L. 1988, c. 87, the originally adopted single-section paragraph (c) was replaced by this two-section paragraph (c):
[HN2] (1) Nothing [***7] in this section shall be deemed to grant immunity to any person causing damage by his willful, wanton, or grossly negligent act of commission or omission, nor to any coach, manager, or official who has not participated in a safety orientation and training skills program which program shall include but not be limited to injury prevention and first aid procedures and general coaching concepts.
(2) A coach, manager, or official shall be deemed to have satisfied the requirements of this subsection if the safety orientation and skills training program attended by the person has met the minimum standards established by the Governor’s Council on Physical Fitness and Sports in consultation with the Bureau of Recreation within the Department of Community Affairs, in accordance with rules and regulations adopted pursuant to the “Administrative Procedure Act,” P.L.1968, c. 410 (C. 52:14B-1 et seq.).
The 1988 version does more than define, qualify, and standardize the prescribed safety program. In our view, the text of paragraph (c)(2), in its reference to a volunteer being “deemed to have satisfied the requirements of this subsection” (emphasis added), makes plain that actual program [***8] attendance is the unequivocal prerequisite for entitlement to the immunity. We are further persuaded that this was the legislative intention from the outset.
We base this conclusion first on public policy considerations. We do not believe that in initially prescribing participation in [**1225] a safety program, the Legislature meant to provide a disincentive to the establishment of such programs by charitably organized leagues and teams — and surely a disincentive is implicit in a scheme in which a coach or manager can obtain immunity against ordinary negligence by the simple expedient of the league’s failure to instruct him on matters of safety. Rather, we are convinced that the Legislature, responding to a perceived [*190] insurance crisis, concluded that all of the competing interests involved in the management of and participation in nonprofit athletic organizations could be most reasonably accommodated by encouraging the safety training of volunteer coaches and managers — not discouraging such training — and then protecting trained volunteers from ordinary negligence claims. Thus, the prior training was at the heart of the immunity concept. That being so, we are convinced [***9] that the Legislature never intended that the immunity would attach to an untrained volunteer simply because his league or team chose not to offer appropriate training.
Beyond that, we are also convinced that that construction of the original version of the statute has been expressly confirmed by the Senate Statement accompanying the 1988 amendment. That Statement starts with the observation that the amendment is intended to clarify the manner in which the volunteer coach, manager, or official can satisfy “the training program requirement of the ‘little league liability law,’ P.L.1986, c. 13. . . .” 5 Thus, the Legislature itself thereby described the program referred to in the original Act as mandated rather than optional. The conclusion is, therefore, ineluctable that [HN3] a volunteer coach who has not participated in a prescribed safety program, for whatever reason, is barred from reliance on the statutory immunity.
5 Although the Act by its terms is not limited to the Little League or even to youngsters participating in nonprofit athletic organizations, the Act has been referred to by the Little League nomenclature because it was that context in which it was initially adopted.
[***10] The partial summary judgment dismissing the ordinary negligence counts of the complaint against Dennis Bonk is reversed, and the matter is remanded to the trial court for further proceedings
Smith v. Kroesen, 9 F. Supp. 3d 439; 2014 U.S. Dist. LEXIS 39729
Posted: March 9, 2015 Filed under: Legal Case, New Jersey | Tags: Rugby, Volunteer, Volunteer Immunity Leave a commentSmith v. Kroesen, 9 F. Supp. 3d 439; 2014 U.S. Dist. LEXIS 39729
Paul M., Plaintiff, v. John A. and Mark Cooley, et al., Defendants.
Civ. A. No. 10-5723 (NLH)(AMD)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
9 F. Supp. 3d 439; 2014 U.S. Dist. LEXIS 39729
March 25, 2014, Decided
March 25, 2014, Filed
PRIOR HISTORY: Smith v. Kroesen, 2013 U.S. Dist. LEXIS 167619 (D.N.J., Nov. 26, 2013)
COUNSEL: [**1] DOMINIC ROMAN DEPAMPHILIS, D’AMATO LAW FIRM PC, EGG HARBOR TOWNSHIP, NJ, On behalf of plaintiff.
CLARK B. LEUTZE, MARGOLIS EDELSTEIN, MOUNT LAUREL, NJ, On behalf of defendant Mark Cooley.
JUDGES: Noel L. Hillman, U.S.D.J.
OPINION BY: Noel L. Hillman
OPINION
[*440] HILLMAN, District Judge
Presently before the Court is the motion of defendant, Mark Cooley, for summary judgment in his favor on the claims of plaintiff, Paul Smith, that defendant is liable for injuries plaintiff sustained while playing in a rugby match. For the reasons expressed below, defendant’s motion will be granted.
BACKGROUND
On April 10, 2010, plaintiff Paul Smith, a member of the Jersey Shore Sharks rugby team, was playing in a rugby match against Old Gaelic Rugby Football Club, which was coached by defendant Mark Cooley. A rugby match is comprised of two, 40-minute halves, and it is typical to have 70 pile-ups of players and over 100 collisions with other players. During the first half of the match that day, plaintiff and a player from Old Gaelic got into a “ruck,” which is described to the Court as an on-the-field argument.1 The two players rolled on the ground, and plaintiff gave the Old Gaelic player a short jab to the ribs. Although the play had moved [**2] to the other end of the field, another Old Gaelic player, defendant John Kroesen, saw the ruck and, according to plaintiff, came from behind and intentionally kicked him in the face. Plaintiff sustained a left orbital fracture and a nasal fracture, for which plaintiff underwent surgery.
1 In rugby, a “ruck” also refers to efforts by opposing teams huddled over a dropped ball to kick it to a teammate to gain possession.
Plaintiff filed suit against Kroesen claiming that Kroesen’s conduct was intentional assault and battery, or at a minimum, grossly negligent. Plaintiff then filed an amended complaint,2 adding Cooley as a defendant, claiming that Cooley was grossly negligent in his coaching of the Old Gaelic team, and is responsible for plaintiff’s injuries caused by Kroesen.3 Kroesen did not answer plaintiff’s complaint, and the clerk has entered default against him. Plaintiff and Cooley went to arbitration to resolve plaintiff’s claims against Cooley, but following the arbitrator’s decision, plaintiff sought a trial de novo. Cooley has now filed for summary judgment on plaintiff’s claims against him. Plaintiff has opposed Cooley’s motion.
2 The Court granted plaintiff’s unopposed motion [**3] to file an amended complaint. (See Docket No. 8, Nov. 11, 2011.)
3 Plaintiff also added as defendants the Old Gaelic Rugby Football Club, the Eastern Pennsylvania Rugby Union (“EPRU”), and the Mid-Atlantic Rugby Football Union (“MARFU”), which oversees EPRU. On October 31, 2012, plaintiff dismissed by consent his claims against MARFU. Old Gaelic and EPRU were never served with the amended complaint, and plaintiff has abandoned his claims against them. (Pl. Attorney Cert. ¶ 9, Docket No. 38-1.)
DISCUSSION
A. Subject Matter Jurisdiction
This Court may exercise subject matter jurisdiction over the action pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000.4 The citizenship of the [*441] parties is as follows: plaintiff is a citizen of New Jersey; defendant Kroesen is a citizen of Pennsylvania; defendant Mark Cooley is a citizen of Pennsylvania; defendant Old Gaelic Rugby Football Club, Inc. is a corporation incorporated in the Commonwealth of Pennsylvania with its principal place of business at 712 Bower Road, Shermans Dale, Pennsylvania; defendant Eastern Pennsylvania Rugby Union, Inc. (“EPRU”) is a corporation [**4] incorporated in the Commonwealth of Pennsylvania with its principal place of business at 2107 Fidelity Building, Philadelphia, Pennsylvania 19103; and Mid-Atlantic Rugby Football Union, Inc. is a Delaware corporation with its principal place of business at 800 King Street, Wilmington, Delaware.
4 On November 26, 2013, the Court issued an Order to Show Cause directing plaintiff to provide a certification properly stating the citizenship of the parties before the case could proceed, as the citizenship of the parties was not properly pleaded in the original or amended complaints. (See Docket No. 36.) Plaintiff complied with the Court’s Order, and the citizenship of the parties has now been properly averred. (See Pl. Attorney Cert., Docket No. 38-1.)
B. Standard for Summary Judgment
Summary judgment is appropriate where the Court is satisfied that the materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, or interrogatory answers, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); [**5] Fed. R. Civ. P. 56(a).
An issue is “genuine” if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A fact is “material” if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party’s evidence “is to be believed and all justifiable inferences are to be drawn in his favor.” Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that [**6] contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232, 43 V.I. 361 (3d Cir. 2001).
C. Analysis
Cooley has moved for summary judgment in his favor on several bases. One basis is that he is immune from liability for plaintiff’s injuries under N.J.S.A. 2A:62A-6 and 42 U.S.C. § 14501 et seq., both of which afford immunity to volunteer athletic coaches for damages incurred by a player during an organized sports competition. Cooley also argues that plaintiff’s claims against him are barred by plaintiff’s assumption of the risk of injury in the very physical game of rugby, as well as by the annual rugby participation agreement, which includes a provision that by agreeing to play in the league, plaintiff releases all other members and coaches from liability for any damages suffered by plaintiff [*442] through his participation in the league. In addition to these outright bars to plaintiff’s claims against Cooley, Cooley also argues that no facts demonstrate that Cooley was negligent in his coaching duties rendering him liable for [**7] plaintiff’s injuries.
Plaintiff has opposed Cooley’s motion as to the application of N.J.S.A. 2A:62A-6 and 42 U.S.C. § 14501 et seq., his assumption of risk, and the release from liability in the participation agreement. With regard to the volunteer immunity statutes, plaintiff argues that N.J.S.A. 2A:62A-6 does not apply to Cooley because he never completed a safety orientation and training skills program as required by N.J.S.A. 2A:62A-6(c)(2),5 and because Cooley was “grossly negligent,” which conduct is excluded from immunity by N.J.S.A. 2A:62A-6(c)(1). Plaintiff also argues that Cooley cannot avail himself of 42 U.S.C. § 14501 at this point because he failed to plead it as an affirmative defense in his answer to plaintiff’s complaint, and because plaintiff was grossly negligent, which is also exempted from immunity under the federal volunteer immunity act.
5 Cooley represents that in order to serve as a coach for Old Gaelic he completed nationwide USA Rugby training, which included “injury prevention and first aid procedures and general coaching concepts,” as required by N.J.S.A. 2A:62A-6(c)(2). Plaintiff contends, however, that in order to satisfy N.J.S.A. 2A:62A-6(c)(2), plaintiff [**8] was required to take a safety orientation program specifically provided in New Jersey. As set forth below, we need not resolve this issue.
Plaintiff further rejects Cooley’s arguments that because he assumed the risk of being injured by knowingly playing in a contact sport, and because he signed a release from liability for damages resulting from participating in the contact sport, Cooley cannot be held liable for plaintiff’s damages. Plaintiff contends that because Cooley was grossly negligent in his coaching of Old Gaelic, plaintiff did not assume the risk of injury that was beyond the bounds of typical rugby play–namely, Kroesen’s kick to plaintiff’s face that resulted from Cooley’s poor coaching of Kroesen. Plaintiff also contends that the participation agreement releases do not apply to Cooley’s gross negligence.
Even accepting all of plaintiff’s arguments – that the volunteer immunity statutes do not apply, that he did not assume the risk of the injuries he suffered, and that the participation agreements do not bar his claims – plaintiff has failed to establish sufficient facts from which a jury could conclude that Cooley was grossly negligent in his coaching duties.
Under New Jersey [**9] law, in order to prove that a person acted negligently, the plaintiff must establish: (1) a duty of care owed to the plaintiff by the defendant; (2) that defendant breached that duty of care; and (3) that plaintiff’s injury was proximately caused by defendant’s breach. Boos v. Nichtberger, 2013 N.J. Super. Unpub. LEXIS 2455, 2013 WL 5566694, *4 (N.J. Super. App. Div. Oct. 10, 2013) (citing Endre v. Arnold, 300 N.J. Super. 136, 142, 692 A.2d 97 (App. Div. 1997)). The burden of proving a negligence claim rests with the plaintiff, and as part of that burden, it is vital that plaintiff establish that his injury was proximately caused by the unreasonable acts or omissions of the defendant. Id. (citing Camp v. Jiffy Lube No. 114, 309 N.J. Super. 305, 309-11, 706 A.2d 1193 (App. Div.), cert. denied, 156 N.J. 386, 718 A.2d 1215 (1998)) (other citation omitted).
With regard to a claim of gross negligence, “the difference between ‘gross’ and ‘ordinary’ negligence is one of degree rather than of quality.” Fernicola v. Pheasant Run at Barnegat, 2010 N.J. Super. Unpub. LEXIS 1614, 2010 WL 2794074, *2 (N.J. Super. Ct. App. Div. 2010) (quoting Oliver v. Kantor, 122 N.J.L. 528, 532, [*443] 6 A.2d 205 (Sup. Ct. 1939), aff’d o.b., 124 N.J.L. 131, 10 A.2d 732 (E. & A. 1940)). “Gross negligence refers to behavior which constitutes indifference to [**10] consequences.” Griffin v. Bayshore Medical Center, 2011 N.J. Super. Unpub. LEXIS 1165, 2011 WL 2349423, *5 (N.J. Super. Ct. App. Div. 2011) (citing Banks v. Korman Assocs., 218 N.J. Super. 370, 373, 527 A.2d 933 (App. Div. 1987)).
Cooley argues that plaintiff cannot provide any facts to establish that he caused Kroesen to kick plaintiff in the face during a rugby match. Cooley argues that there is no evidence to support that Cooley knew that Kroesen was prone to violence beyond what is typical during a rugby match, which is supported by the fact that Kroesen had never previously received a yellow card (for a small infraction resulting in a period of time out from a game) or a red card (for a serious infraction resulting in discharge from the game).6 Moreover, Cooley argues that plaintiff has not provided any evidence to suggest that Cooley failed in his duty as a coach by affirmatively encouraging Kroesen or any of his players to act violently during a rugby match, or by failing to appreciate a player’s violent tendencies.7
6 Plaintiff does not dispute that he had received three yellow cards in the past.
7 Cooley also counters plaintiff’s allegations that Kroesen intentionally kicked plaintiff in the face, because it is not clear whether [**11] Kroesen, who, according to Cooley and other players, was attempting to save his teammate from being punched by plaintiff, slipped while entering the fray. The dispute over the nature of Kroesen’s and plaintiff’s actions during the altercation is not material to the resolution of plaintiff’s claims against Cooley, however, because to decide Cooley’s motion for summary judgment, it must be accepted as true that Kroesen intentionally kicked plaintiff in the face.
In the context of arguing that Cooley is not entitled to immunity under N.J.S.A. 2A:62A-6(c)(1) because he was grossly negligent in his coaching duties, plaintiff argues that his negligence claim against Cooley is supported by his liability expert, Dr. Leonard K. Lucenko, who is qualified in federal and state courts as an expert in the field of physical education, recreation, coaching, and sports risk management and safety. According to Dr. Lucenko, Cooley deviated from reasonable coaching standards as follows:
1. The failure to exercise due care and foresight even though it was foreseeable that noncompliance with the Laws of the Game of Rugby created the environment for serious and permanent injury.
2. The failure to understand [**12] and appreciate well known coaching risk management principles, such as the nine legal duties of a coach.
3. The failure to properly teach and enforce the Laws of the Game of Rugby.
4. The failure to recognize the dangerous conditions created by the failure to comply with the Laws of the Game of Rugby.
5. The failure to instruct and train the players on what actions to take regarding fighting.
6. The failure to closely monitor and supervise Mr. Kroesen given his intensity as a player.
7. The failure to effectively and adequately address the intense play of Mr. Kroesen, which was resulting in injuries to other players.
8. The failure on the part of Mr. Cooley to understand he was bound by the USA Rugby Coaches’ Code of Conduct.
9. The failure to adopt and follow the principles outlined in the Code of Conduct.
(Pl. Opp. at 13, citing Ex. A.) Plaintiff argues that Dr. Lucenko’s conclusions [*444] present material disputed evidence as to whether Cooley was grossly negligent in his coaching duties, and therefore his claim against Cooley should be sent to a jury to decide.
Gross negligence requires substantial proof beyond simple negligence; it requires wanton or reckless disregard for the safety of others. [**13] Griffin v. Bayshore Medical Center, 2011 N.J. Super. Unpub. LEXIS 1165, 2011 WL 2349423, *5 (N.J. Super. Ct. App. Div. 2011) (citing In re Kerlin, 151 N.J. Super. 179, 185, 376 A.2d 939 (App. Div.1977)). Setting aside any expert qualification issues under Daubert,8 and accepting as true all of Dr. Lucenko’s findings that Cooley failed to properly instruct his players with regard to the propriety of fighting during a rugby match, the Court cannot find that plaintiff has provided sufficient disputed facts to send to a jury on the issue of proximate causation. None of Dr. Lucenko’s conclusions, nor any of the other evidence in the record, demonstrate that Cooley acted indifferently, willfully, or wantonly in his coaching of Kroesen such that he should be held legally responsible for the injuries plaintiff sustained when Kroesen kicked plaintiff in the face.
8 Federal Rule of Evidence 702, as amended in 2000 to incorporate the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), imposes an obligation upon a district court to ensure that expert testimony is not only relevant, but reliable. As the Third Circuit has made clear, “the reliability analysis [required by Daubert] applies to all aspects of an [**14] expert’s testimony: the methodology, the facts underlying the expert’s opinion, [and] the link between the facts and the conclusion.” ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 291 (3d Cir. 2012) (citations omitted). To be admissible, expert testimony must concern subject matter beyond the average juror’s understanding, be sufficiently reliable, and be offered by a sufficiently qualified expert. DeHanes v. Rothman, 158 N.J. 90, 727 A.2d 8 (N.J. 1999).
As noted by the New Jersey courts, the question of the scope of duty among coaches and players is intertwined with considerations of public policy. Egerter v. Amato, 2006 N.J. Super. Unpub. LEXIS 3008, 2006 WL 551571, *3 (N.J. Super. Law Div. 2006) (citing Hopkins v. Fox and Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (N.J. 1993)). The “strong social policy to facilitate free and aggressive participation in athletic activity requires . . . leeway at least where no specific rule or statute has been violated. Otherwise courts and juries will become de facto athletic directors, second guessing actor’s conduct in reviewing generalized claims of negligence.” Id. (citations omitted). “The fact is that any athletic endeavor involves some degree of risk. Coaches are expected to absorb such risks, just like [**15] participants in informal games or athletes on a scholastic gridiron. . . . [J]udges are not athletic directors. They should not formulate standards of care which require them and juries to function as if they were.” Id. (citation omitted).9
9 It is interesting to note that Dr. Lucenko served as plaintiff’s expert in Egerter, where a track coach sued her 8th grade student for injuries she sustained when the student hit her with a shot put. Dr. Lucenko concluded in that case that plaintiff organized, supervised and conducted the practice session in an appropriate and professional manner, but that it was the instantaneous and negligent decision by the student to throw the shot before given the instruction to do so that led to the plaintiff’s severe and life altering injuries. Egerter v. Amato, 2006 N.J. Super. Unpub. LEXIS 3008, 2006 WL 551571, *1 (N.J. Super. Law Div. 2006). On defendant’s motion for summary judgment, the court found that the recklessness standard of negligence applied, and there was no evidence that the student acted recklessly.
In an earlier case proceeding under the same school of thought, and one that is similar to plaintiff’s case here against Cooley, a student in one high school filed suit [*445] against a [**16] soccer coach from another high school for injuries he sustained when an opposing player “undercut” him. Nydegger v. Don Bosco Preparatory High School, 202 N.J. Super. 535, 495 A.2d 485, 485 (N.J. Super. Ct. Law Div. 1985). The student’s allegations against the opposing team’s coach were that he taught his players to compete in an “aggressive and intense manner” and that winning the game is all important. In resolving the coach’s motion to dismiss, the court concluded, “[I]n the absence of an instruction by a coach to one of his players to commit a wrongful act or his instructing one in moves or procedures that would increase the risk of harm to opposing players, a coach is not responsible to a player on an opposing team who is injured.” Nydegger, 495 A.2d at 485. The court elaborated:
Interscholastic sports are not compulsory school programs. Students who participate do so voluntarily. Those who participate in a sport such as soccer expect that there will be physical contact as a result of 22 young men running around a field 50 by 100 yards. Physical contact is not prohibited by the rules of soccer. Injuries do result. Those who participate are trained to play hard and aggressive.
[N]o student or parent [**17] is blind to the realities of interscholastic athletics. The possibility of a serious injury exists regardless of the care exercised by schools and their personnel. Imposing liability upon schools and their coaches based on negligent or wrongful acts of players, committed during the course of play would have the practical effect of eventually eliminating interscholastic athletics. Interscholastic athletic activities have become an integral part of the intellectual, physical and social development of young people. No matter what the intentions or good purpose, a coach cannot insure or guarantee that each and every member of his team will not commit a foul or will not in the heat of the contest do an act beyond that which is acceptable.
A coach cannot be held responsible for the wrongful acts of his players unless he teaches them to do the wrongful act or instructs them to commit the act. There is absolutely no evidence in the record that would support such a finding. Teaching players to be intense and aggressive is an attribute. All sports and many adult activities require aggressiveness and intensity.
Id. at 486-87.
The rationale in Nydegger holds true in this case. Plaintiff voluntarily [**18] participated in an aggressive contact sport where it is common to engage in on-field “rucks.” Plaintiff was involved in a ruck that day, administering a “short jab in the ribs” to the other player, when Kroesen intervened and kicked plaintiff in the face. Absent evidence that Cooley directed Kroesen specifically, or his team in general, to inflict violence onto opposing team players as part of the game, Cooley cannot be held liable for plaintiff’s injuries. Additionally, any of Cooley’s alleged failings as a coach as articulated by Dr. Lucenko cannot serve as the basis for finding proximate causation because there cannot be any definitive conclusion that even if Cooley were the perfect coach, Kroesen would not have acted as he did. See, e.g., id., at 486 (“[A] coach cannot insure or guarantee that each and every member of his team will not commit a foul or will not in the heat of the contest do an act beyond that which is acceptable.”); Divia v. South Hunterdon Regional High School, 2005 WL 977028, *7 (N.J. Super. Ct. App. Div. 2005) (explaining that proximate cause is the efficient cause, the one which necessarily sets the other causes in operation; it is the act or omission, which [**19] directly brought about [*446] the happening complained of, and in the absence of which the happening complained of would not have occurred) (citing Verdicchio v. Ricca, 179 N.J. 1, 843 A.2d 1042, 1057 (N.J. 2004) (explaining that merely establishing that a defendant’s negligent conduct had some effect in producing the harm does not automatically satisfy the burden of proving it was a substantial factor)).
In sum, the evidence in the record, viewed most favorably to plaintiff, cannot support his claim that Cooley was grossly negligent in his coaching of Kroesen such that Cooley can be held liable for plaintiff’s injuries inflicted by Kroesen during the rugby match. Consequently, Cooley’s motion for summary judgment must be granted.10 An appropriate Order will be entered.
10 Plaintiff’s only remaining claim in this case is against Kroesen, upon whom the Clerk entered default at plaintiff’s request. (See 1/28/2011 Docket Entry.) As directed in the accompanying Order, plaintiff shall commence prosecution of his claim against Kroesen within 30 days, or this matter will be closed for lack of prosecution.
Date: March 25, 2014
At Camden, New Jersey
/s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
ORDER
For the reasons expressed [**20] in the Court’s Opinion filed today,
IT IS on this 25th day of March , 2014
ORDERED that defendant Mark Cooley’s motion for summary judgment [34] is GRANTED; and it is further
ORDERED that, within 30 days of the date of this Order, plaintiff shall commence prosecution of his claims against defendant John A. Kroesen. If plaintiff fails to do so, plaintiff’s case will be closed for lack of prosecution.
/s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Wagner v. McGrady, 2009-Ohio-987; 2009 Ohio App. LEXIS 798
Posted: March 9, 2015 Filed under: Legal Case, Ohio | Tags: Animal Rescue, SPA, Volunteer, Volunteer Immunity Leave a commentWagner v. McGrady, 2009-Ohio-987; 2009 Ohio App. LEXIS 798
Dennis Wagner, Appellee v. Terry McGrady, Appellant
Court of Appeals No. S-08-010
COURT OF APPEALS OF OHIO, SIXTH APPELLATE DISTRICT, SANDUSKY COUNTY
2009-Ohio-987; 2009 Ohio App. LEXIS 798
March 6, 2009, Decided
PRIOR HISTORY: [**1]
Trial Court No. CVI 0700292.
COUNSEL: Terry J. Lodge, for appellant.
JUDGES: HANDWORK, J. Peter M. Handwork, J., Arlene Singer, J., William J. Skow, P.J., CONCUR.
OPINION BY: Peter M. Handwork
OPINION
DECISION AND JUDGMENT
HANDWORK, J.
[*P1] This case is before the court on appeal from a judgment of the Sandusky County Court, District No. 2. Appellant, Terry McGrady, asserts the following assignments of error:
[*P2] “Assignment of Error No. 1. A volunteer animal rescuer has no duty to learn the identify [sic] of a putative owner of a dog who makes no immediate attempt to reclaim his lost animal and is not liable for adoption of the dog to another home after reasonable efforts have been made.
[*P3] “Assignment of Error No. 2. Appellant was not a proper Defendant because he was an unpaid volunteer working for a nonprofit humanitarian agency.
[*P4] “Assignment of Error No. 3. There was no basis for the damage award of $ 500.00.
[*P5] “Assignment of Error No. 4. The court’s ruling was against the manifest weight of the evidence.”
[*P6] Appellee failed to file an appellate brief; therefore, we shall take appellant’s recitation of the facts and issues as correct and reverse the judgment of the trial court if that brief reasonably sustains that action. [**2] See App.R. 18(C); United Bhd. of Carpenters & Joiners of Am., Local Union No. 1581 v. Edgerton Hardware Co., Inc., 6th Dist. No. WM-06-017, 2007 Ohio 3958, P 4.
[*P7] Appellant is a volunteer for the Society for the Protection of Animals, Inc. (“SPA”), an Ohio nonprofit corporation that provides a rescue service for stray cats and dogs. During the early morning hours of Saturday, October 13, 2007, appellant discovered a large brown dog, a chocolate Labrador Retriever, at his back door. Because he and his wife were already fostering several animals, appellant took the dog to the Fremont Animal Hospital to be boarded. He also called the pound to alert them of a lost dog.
[*P8] On the following Monday, October 15, 2007, appellant called the Fremont News Messenger and placed an advertisement asking anyone who had lost a large dog in the area of County Road 41 in Fremont to call his telephone number (also listed in the ad) and describe the dog. The ad ran for three days, October 16 through October 18, 2007. On Friday, October 19, 2007, the dog was neutered, checked for heartworm, and given all of his “shots.” The owner listed on the veterinarian’s medical record is the SPA. On Saturday, the dog was [**3] adopted by a family who had previously adopted dogs from the SPA. The new owner of the Labrador Retriever signed the SPA’s standard adoption contract, and the SPA received the $ 75 adoption fee. At the trial of this cause, appellant also provided the affidavit of the new owner of the dog stating that she had adopted the Labrador Retriever from the SPA.
[*P9] In his testimony, Wagner claimed that his chocolate Labrador Retriever, which was tied to a doghouse, “slipped his collar and disappeared” on October 13, 2007. After asking his neighbor whether he had seen the dog and learning that he had not seen him, appellee drove around the vicinity looking for the dog. Appellee went to the dog pound on either October 16 or October 17, 2007, to see if his Labrador Retriever was “picked up” by the dog warden. Wagner further testified that on Friday, October 19, 2007, someone from the pound called him and stated that appellant might have his dog. According to appellee, he spoke with McGrady the next day and appellant admitted that the Labrador Retriever was appellee’s dog. Appellant, however, also informed appellee of the fact that the dog was already adopted by another family.
[*P10] In December 2007, Wagner [**4] filed the instant small claims lawsuit, seeking a judgment in the amount of $ 750, plus interest, from McGrady, as compensation for the conversion of his property, that is, the dog. At the hearing on appellee’s complaint, appellant maintained that any actions he took with regard to the Labrador Retriever he found was done in his capacity as a volunteer for a nonprofit charitable organization, that is, the SPA, and he was, therefore, not liable for any damages suffered by appellee for the loss of his dog.
[*P11] On February 6, 2008, the small claims judge entered a judgment awarding appellee $ 500. The judge held: “At time defendant adopted dog out, they knew to [sic] owner of dog was looking for his dog 1. Membership in SPA does not give immunity for sale or adopting animal that belongs to another.” This timely appeal followed.
1 There is no evidence in the record of this cause to establish that appellant knew the dog belonged to appellee at the time it was adopted.
[*P12] Because it is dispositive of this appeal, we shall first consider appellant’s second assignment of error. In that assignment, appellant contends that as a volunteer for a nonprofit charitable organization, he was not the party in [**5] interest and is immune from suit under R.C. 2305.38. We agree. R.C. 2305.38 provides, in pertinent part:
[*P13] “(A) [HN1] As used in this section:
[*P14] “* * *
[*P15] “(5) ‘Volunteer’ means an officer, trustee, or other person who performs services for a charitable organization but does not receive compensation, either directly or indirectly, for those services.
[*P16] “* * *
[*P17] “(C) [HN2] A volunteer is not liable in damages in a civil action for injury, death, or loss to person or property that arises from the volunteer’s actions or omissions in connection with any supervisory or corporate services that the volunteer performs for the charitable organization, unless either of the following applies:
[*P18] “(1) An action or omission of the volunteer involves conduct as described in division (B)(1) or (2) of this section;
[*P19] “(2) An action or omission of the volunteer constitutes willful or wanton misconduct or intentionally tortious conduct.”
[*P20] [HN3] A volunteer is liable for damages in a civil action for injury, death, or loss to person or property under R.C. 2305.38(B) only if either of the following applies:
[*P21] “(1) With prior knowledge of an action or omission of a particular officer, employee, trustee, or other volunteer, the volunteer authorizes, [**6] approves, or otherwise actively participates in that action or omission.
[*P22] “(2) After an action or omission of a particular officer, employee, trustee, or other volunteer, the volunteer, with full knowledge of that action or omission, ratifies it.”
[*P23] In the present case, all of the evidence offered at trial demonstrates that appellant was acting in his capacity as a volunteer working for SPA, an undisputed nonprofit charitable organization. Furthermore, no evidence was offered to show that appellant’s actions would render him liable to Wagner for damages suffered as the result of the loss of Wagner’s dog, if, indeed, the dog found by appellant was appellee’s dog, under R.C. 2305.38 (B)(1) and/or (2) or pursuant to R.C. 2305.38(C). Accordingly, appellant’s second assignment of error is found well-taken. Appellant’s first, third, and fourth assignments of error are, thereby, rendered moot.
[*P24] The judgment of the Sandusky County Court, District No. 2 is reversed. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk’s expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Sandusky County.
JUDGMENT [**7] REVERSED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J.
Arlene Singer, J.
William J. Skow, P.J.
CONCUR.
Stemke v. Mastrogiacomo, 2014 N.Y. Misc. LEXIS 906; 2014 NY Slip Op 30504(U)
Posted: March 9, 2015 Filed under: Legal Case, New York | Tags: Coach, Lacrosse, Volunteer, Volunteer Immunity Leave a commentStemke v. Mastrogiacomo, 2014 N.Y. Misc. LEXIS 906; 2014 NY Slip Op 30504(U)
Warren Stemke, as Father and Natural Guardian of Brian Stemke, an infant under the age of eighteen (18) yeas and Warren Stemke, Individually, Plaintiffs, – against – Campbell Mastrogiacomo an infant under the age of eighteen (18) years by his Parents and Natural Guardians, Cheryl Mastrogiacomo and Michael Mastrogiacomo, Cheryl Mastrogiacomo, Michael Mastrogiacomo, Middle Country Boys Lacrosse Club, Inc., Suffolk County Police Athletic League, Inc., Roger Tobias, World Gym, and Parisi Speed School, Defendants. Index No. 11-10634
11-10634
SUPREME COURT OF NEW YORK, SUFFOLK COUNTY
2014 N.Y. Misc. LEXIS 906; 2014 NY Slip Op 30504(U)
February 26, 2014, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
COUNSEL: [*1] For Plaintiff: EDELMAN, KRASIN & JAYE, PLLC, Carle Place, New York.
For Defendants Mastrogiacomo: RICHARD T. LAU & ASSOCIATES, Jericho, New York.
For Defendants Middle Country Boys Lacross, Suffolk County Police Athletic League & Roger Tobias: RIVKIN RADLER LLP, Uniondale, New York.
For Defendants World Gym & Parisi Speed School: MIRANDA SAMBURSKY SLOAN SKLARIN VERVENIOTIS LLP, Mineola, New York.
JUDGES: PRESENT: Hon. PETER H. MAYER, Justice of the Supreme Court.
OPINION BY: PETER H. MAYER
OPINION
Upon the reading and filing of the following papers in this matter: (1) Notice of Motion/Order to Show Cause by the defendants World Gym & Parisi Speed School, dated June 20, 2013, and supporting papers (including Memorandum of Law dated ); Notice of Motion/Order to Show Cause by the defendants Middle Country Boys Lacrosse Club, Inc., Suffolk Police Athletic League, Inc. & Roger Tobias, dated June 21, 2013, and supporting papers (including Memorandum of Law dated ); Notice of Motion /Order to Show Cause by the defendants Cheryl & Michael Mastrogiacomo, dated July 12, 2013, and supporting papers (including Memorandum of Law dated ); (2) Affirmation in Opposition by the defendants World Gym & Parisi Speed School, dated [*2] August 12, 2013, and supporting papers; Affirmation in Opposition by the plaintiffs, dated September 6, 2013, and supporting papers; [**2] (3) Reply Affirmation by the defendants World Gym & Parisi Speed School, dated September 12, 2013, and supporting papers; Reply Affirmation by the defendants Middle Country Boys Lacrosse Club, Inc., Suffolk Police Athletic League, Inc. & Roger Tobias, dated September 16, 2013, and supporting papers; (4) Other Memorandum of Law (and after hearing counsels’ oral arguments in support of and opposed to the motion); and now
UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is
ORDERED that the motion (#004) by defendants Middle Country Boys Lacrosse Club, Inc., Suffolk County Police Athletic League, Inc., and Roger Tobias, the motion (#005) by defendants Setauket Country Club Ltd and Parisi Speed School, and the motion (#006) by defendants Cheryl Mastrogiacomo and Michael Mastrogiacomo are consolidated for the purposes of this determination; and it is
ORDERED that the motion (#004) by defendants Middle Country Boys Lacrosse Club, Inc., Suffolk County Police Athletic League, Inc., and Roger Tobias [*3] for summary judgment dismissing the complaint against them is granted; and it is
ORDERED that the motion (#005) by defendants Setauket Country Club Ltd and Parisi Speed School for summary judgment dismissing the complaint against them is denied; and it is further
ORDERED that the motion (#006) by defendants Cheryl Mastrogiacomo and Michael Mastrogiacomo for summary judgment dismissing the complaint against them is granted.
On November 20, 2010, infant plaintiff Brian Stemke, who at that time was 12 years old and a member of a lacrosse team run by defendant Middle Country Boys Lacrosse Club, Inc., was injured while attending a training program run by defendant Parisi Speed School at a facility owned by defendant Setauket Country Club, Ltd, d/b/a World Gym Setauket, when he collided with infant defendant Campbell Mastrogiacomo and fell to the floor. Infant plaintiff’s father, plaintiff Warren Stemke, suing individually and on behalf of his son, commenced this action against defendants, alleging they failed to provide adequate supervision of infant plaintiff and the other participants in the training session.
Defendants Middle Country Boys Lacrosse Club, Inc., Suffolk County Police Athletic [*4] League, Inc., and Roger Tobias (hereinafter collectively referred to as the Lacrosse Club defendants) now move for summary judgment dismissing the complaint against them, arguing that they had no duty to supervise infant plaintiff or Campbell Mastrogiacomo at the time and place of the subject incident, and that the alleged inadequate supervision was not the proximate cause of infant plaintiff’s injuries. They also argue that the Volunteer Protection Act shields defendant Roger Tobias, coach of the Middle Country Boys Lacrosse team, from personal liability. In support of their motion, the Lacrosse Club defendants submit copies of the pleadings, transcripts of the parties’ deposition testimony, and an affidavit of Michael Harvey.
Defendants Setauket Country Club Ltd and Parisi Speed School (hereinafter collectively referred to as the World Gym defendants) move for summary judgment dismissing the complaint and all cross claims against them, arguing that the actions of Campbell Mastrogiacomo were unforeseeable. In support of their motion, they submit copies of the pleadings and transcripts of the parties’ deposition testimony.
Defendants Cheryl Mastrogiacomo and Michael Mastrogiacomo (hereinafter [*5] collectively referred to as the Mastrogiacomo defendants) move for summary judgment dismissing the complaint against them on the grounds that they had no knowledge of any propensity on the part of their son, infant defendant Campbell Mastrogiacomo, to engage in conduct which could be deemed “vicious” or dangerous to others. In support of their motion, they submit copies of the pleadings and transcripts of the deposition testimony [**3] of Cheryl Mastrogiacomo and Campbell Mastrogiacomo.
Plaintiffs oppose defendants’ motions, arguing that triable issues of fact exist as to the adequacy and the quality of the supervision prior to the incident. As to the Mastrogiacomo’s motion, plaintiffs also argue that it is untimely. The World Gym defendants partially oppose the motion by the Lacrosse Club defendants, arguing that they cannot be liable for infant plaintiff’s injuries as they had no notice of the unforeseeable actions of Campbell Mastrogiacomo.
The affidavit of Michael Harvey, a Suffolk County Police Officer and Police Coordinator of the Police Coordinator of the Suffolk County Police Athletic League’s (PAL) lacrosse program, states that the PAL is a not-for-profit corporation which, among [*6] other things, supports juvenile crime prevention and promotes recreational sports programs for minors throughout Suffolk County. It states that the PAL does not organize, schedule, supervise, manage or run any clinics or training sessions for players in its lacrosse league at Parisi Speed School or World Gym Setauket. It states that the subject training session at Parisi Speed School and the lacrosse practice held by Tobias for the lacrosse players affiliated with the Middle Country lacrosse program was arranged independently by Middle Country Boys Lacrosse Club. It further states that no member of the PAL was present for the offseason lacrosse workouts or practices that were held by Tobias on the date of the incident.
At his examination before trial, Tobias testified that he was a volunteer lacrosse coach for the Middle Country Boys Lacrosse Club, which is a town league that is a part of the Suffolk County Police Athletic League. He testified that he organized a training session with Parisi Speed School at World Gym Setauket for the players on the lacrosse team, including players who would be joining the team for the upcoming season. He explained that Parisi Speed School is a training [*7] center for speed and agility, where the participants do exercises and work on running techniques. Tobias testified that he attended the training session, as his son was on the lacrosse team, and that some of the other parents stayed to observe the training session. He testified that he observed the children “messing around,” bouncing three-foot wide, light-weight yoga balls. He testified that he told the children to stop bouncing the balls because the training session had just begun and the training did not involve use of the yoga balls. He testified that he did not observe the incident, but learned that infant plaintiff was injured when his mother came to pick him up. Tobias testified that he is not aware of any behavioral issues involving Campbell Mastrogiacomo, and that Campbell’s father was present at the training session.
At his examination before trial, infant plaintiff testified that on the day of the incident, he was dropped off by his mother at World Gym Setauket for training in the Parisi Speed School. He testified that he was waiting on the gym floor for the training session to begin with about 20 other boys when Campbell Mastrogiacomo sprinted towards him and pushed him, [*8] causing him to fall. Infant plaintiff explained that he was holding a yoga ball, intending to return it to a bin, when Campbell collided with the ball that he was holding. Infant plaintiff testified that there were no adults in the room at the time of the incident, and that the trainer had not arrived yet.
At his examination before trial, Campbell Mastrogiacomo testified that he was waiting with other members of the lacrosse team for the training session to begin at Parisi Speed School when the incident occurred. He testified that all the children waiting there were running around kicking and throwing the yoga balls; that the yoga balls were just “flying everywhere”; and that no one told them to stop. He testified [**4] that some of the children were playing catch with the yoga balls and some were throwing them at each other. He testified that he observed infant plaintiff playing with the yoga balls. Campbell Mastrogiacomo testified that he was trying to avoid being hit by a yoga ball when he ran into infant plaintiff, causing both of them to fall. He further testified that he did not observe infant plaintiff immediately prior to the accident, and that he accidentally ran into him. He testified [*9] that in the 20 minutes that he was waiting for the training session to begin, he did not observe any employees or trainers from Parisi Speed School at the facility, but that there were five or six parents present, including Tobias.
At his examination before trial, Tom Jaklitsch, general manager of World Gym Setauket, testified that Parisi Speed School is a franchise that World Gym Setauket purchased, which is designed to instruct athletes to improve their speed, agility and strength. He testified that at the time of the incident, Michael Strockbine, the program director, would run the Parisi Speed School training sessions. He testified that Strockbine is no longer employed by World Gym Setauket.
On a motion for summary judgment the movant bears the initial burden and must tender evidence sufficient to eliminate all material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 476 N.E.2d 642, 487 NYS2d 316 [1985]). Once the movant meets this burden, the burden shifts to the opposing party to demonstrate that there are material issues of fact, however, mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues of fact (see Zuckerman v City of New York, 49 NY2d 557, 404 N.E.2d 718, 427 NYS2d 595 [1980]; [*10] Perez v Grace Episcopal Church, 6 AD3d 596, 774 NYS2d 785 [2d Dept 2004]). The court’s function is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility; therefore, in determining the motion for summary judgment, the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true (see Roth v Barreto, 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; O’Neill v Fishkill, 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]).
To prove a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries (see Pulka v Edelman, 40 NY2d 781, 358 N.E.2d 1019, 390 NYS2d 393 [1976]; Engelhart v County of Orange, 16 AD3d 369, 790 NYS2d 704 [2d Dept], lv denied 5 NY3d 704, 834 N.E.2d 780, 801 NYS2d 1 [2005]). A duty of reasonable care owed by the tortfeasor to the plaintiff is essential to any recovery in negligence (Eiseman v State, 70 NY2d 175, 187, 511 N.E.2d 1128, 518 NYS2d 608 [1987]; see Espinal v Melville Snow Contrs., 98 NY2d 136, 773 N.E.2d 485, 746 NYS2d 120 [2002]; Pulka v Edelman, supra). Although juries determine whether and to what extent a particular duty [*11] was breached, it is for the courts to decide in the first instance whether any duty exists and, if so, the scope of such duty (Church v Callanan Indus., 99 NY2d 104, 110-111, 782 N.E.2d 50, 752 NYS2d 254 [2002]; Darby v Compagnie Natl. Air France, 96 NY2d 343, 347, 753 N.E.2d 160, 728 NYS2d 731 [2001]; Waters v New York City Hous. Auth., 69 NY2d 225, 229, 505 N.E.2d 922, 513 NYS2d 356 [1987]). Courts traditionally “fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability” (Palka v Servicemaster Management Servs. Corp., 83 NY2d 579, 586, 634 N.E.2d 189, 611 NYS2d 817 [1994]; see Tagle v Jakob, 97 NY2d 165, 763 N.E.2d 107, 737 NYS2d 331 [2001]).
Enacted to provide volunteers serving nonprofit organizations and government entities with “certain protections from liability abuses” (42 USC § 14501 [b]), the federal Volunteer Protection Act immunizes [**5] individuals who perform services for a not-for-profit corporation and do not receive compensation exceeding $500 per year from liability for harm they [*12] caused in the scope of their duties, provided the harm was not caused by “willful or criminal misconduct, gross negligence, reckless misconduct or a flagrant indifference to the rights or safety of the individual harmed by the volunteer” (42 USC § 14503 [a][3]). Here, the evidence submitted in support of the motion shows Tobias was an unpaid volunteer for the Middle Country Boys Lacrosse Club at the time the incident occurred.
The Lacrosse defendants contend that PAL, Middle Country Boys Lacrosse Club, and Tobias owe no duty to supervise infant plaintiff, as the incident occurred inside the World Gym Setauket facility and involved infant plaintiff and defendant Campbell Mastrogiacomo, who were there to participate in a training session given by Parisi Speed School. According to the affidavit of Harvey, the PAL did not organize or schedule the training session at the Parisi school, and no PAL members were present at the time of the incident.
Here, Tobias, the coach of Middle Country Boys Lacrosse Club, organized and scheduled the training session for the lacrosse club, and was present at the facility at the time of the incident. However, while members of the lacrosse club were invited [*13] to the training session by Tobias, the lacrosse club had no control over training or supervision of the members at the time of the incident, and thus had no duty to infant plaintiff (see Mercer by Mercer v City of New York, 255 AD2d 368, 679 NYS2d 694 [2d Dept 1998]; Mongello v Davos Ski Resort, 224 AD2d 502, 638 NYS2d 166 [2d Dept 1996]). In opposition, plaintiffs failed to raise a triable issue of fact as to whether the Lacrosse defendants owed a duty to infant plaintiff. Plaintiffs’ counsel fails to assert any specific arguments in opposition to the Lacrosse defendants, and merely mentions in a footnote that a question of fact exists as to whether Tobias was operating within the scope of a volunteer, and thus whether the Volunteer Protection Act applies. Accordingly, the motion for summary judgment dismissing the complaint by the Lacrosse Club defendants is granted.
The motion for summary judgment by the World Gym defendants, however, is denied. The World Gym defendants, as an owner or tenant in possession of real property who holds their property open to the public, have a general duty to maintain it in a reasonably safe condition so as to prevent the occurrence of foreseeable injuries [*14] (see Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 407 N.E.2d 451, 429 NYS2d 606 [1980]; Kimen v False Alarm, Ltd., 69 AD3d 579, 893 NYS2d 158 [2d Dept 2010]; Boderick v R.Y. Mgmt. Co., 71 AD3d 144, 897 NYS2d 1 [1st Dept 2009]; Meyer v Tyner, 273 AD2d 364, 709 NYS2d 618 [2001]). Significantly, the World Gym defendants failed to submit sufficient evidence from a party with first hand knowledge of the supervision provided to the participants of the training session. Moreover, the contention that the actions of Campbell Mastrogiacomo were sudden and abrupt is without merit, as his testimony reveals that the children were running around and throwing the yoga balls for approximately 20 minutes before the accident. Thus, World Gym failed to establish a prima facie case that the accident occurred so suddenly and in such a short span of time that no level of supervision could have prevented it (see Oliverio v Lawrence Pub. Schools, 23 AD3d 633, 805 NYS2d 638 [2d Dept 2005]; Douglas v John Hus Moravian Church of Brooklyn, Inc., 8 AD3d 327, 778 NYS2d 77 [2d Dept 2004]; c.f. Lopez v Freeport Union Free School Dist., 288 AD2d 355, 734 NYS2d 97 [2d Dept 2001]). A triable issue of fact also exists as to whether the [*15] World Gym defendants were negligent in leaving the yoga balls out in the area where the children were waiting, which presented a danger of improper use, and in failing to have an adult present to supervise the children. Accordingly, the motion by the World Gym defendants for summary judgment dismissing the complaint against them is denied.
[**6] With regard to the motion for summary judgment by the Mastrogiacomo defendants, parents have an obligation to supervise their children (Holodook v Spencer, 36 NY2d 35, 45, 324 N.E.2d 338, 364 NYS2d 859 [1974]), and may be held liable to a third-party for injury caused by an infant child’s improvident use of a dangerous instrument if they entrusted the child with such dangerous instrument (see Holodook v Spencer, 36 NY2d 35, 324 N.E.2d 338, 364 NYS2d 859; Nolechek v Gesuale, 46 NY2d 332, 385 N.E.2d 1268, 413 NYS2d 340 [1978]). Parents also may be held liable for the torts of their infant child if they negligently failed to restrain the child from committing a vicious act, if they had knowledge that the child had a propensity to engage in violent or vicious conduct (see Rivers v Murray, 29 AD3d 884, 815 NYS2d 708 [2d Dept 2006]; Armour v England, 210 AD2d 561, 619 NYS2d 807 [3d Dept 1994]; Steinberg v Cauchois, 249 AD 518, 293 NYS2d 147 [2d Dept 1937]). [*16] Evidence of a single incident of violence involving the infant child, however, is not sufficient to establish that the child had a propensity to engage in vicious conduct (see Davies v Incorporated Vil. of E. Rockaway, 272 AD2d 503, 708 NYS2d 147 [2d Dept 2000]; Armour v England, supra).
Initially, the Court notes that while the Mastrogiacomo defendants’ motion for summary judgment was untimely, having been made more than 120 days after the filing of the note of issue in this action, an untimely motion for summary judgment may nevertheless be considered as long as it involves issues related to a timely pending summary judgment motion (see CPLR 3212 [a]; James v Jamie Towers Hous. Co., 294 AD2d 268, 743 NYS2d 85 [2002], affd 99 NY2d 639, 790 N.E.2d 1147, 760 NYS2d 718 [1st Dept 2003]; see also, Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 793 NYS2d 176 [2d Dept 2005]). Under the instant circumstances the issues raised by the Mastrogiacomo defendants’ untimely motion are already properly before the Court and thus, the nearly identical nature of the grounds may provide the requisite good cause to review the untimely motion on the merits.
Here, there is no evidence in the record that defendants Cheryl [*17] Mastrogiacomo and Michael Mastrogiacomo had knowledge prior to the subject incident that their son had a propensity to engage in vicious conduct. The testimony of Cheryl Mastrogiacomo reveals that she was aware of an incident where Campbell pulled the pants of another student down in the cafeteria, and an incident when he was in the fourth grade where a child was injured while they were “horseplaying.” However, those incidents are insufficient to establish that Campbell had a tendency to engage in vicious conduct which might endanger a third-party (see Rivers v Murray, supra; Armour v England, supra). In opposition, plaintiffs’ merely argue that the motion by Mastrogiacomo defendants was untimely. Accordingly, the motion by the Mastrogiacomo defendants for summary judgment dismissing the complaint against them is granted.
The action is severed and shall continue against defendants World Gym, Parisi Speed School, and Campbell Mastrogiacomo.
Dated: 2/26/14
/s/ Peter H. Mayer
PETER H. MAYER, J.S.C.
The Wrongful Death Beneficiaries of Christopher Elliot, Deceased, Plaintiffs v. La Quinta Corporation, 2007 U.S. Dist. LEXIS 16837
Posted: March 9, 2015 Filed under: Legal Case, Mississippi | Tags: Basketball, Coach, Volunteer, Volunteer Immunity Leave a commentThe Wrongful Death Beneficiaries of Christopher Elliot, Deceased, Plaintiffs v. La Quinta Corporation, 2007 U.S. Dist. LEXIS 16837
The Wrongful Death Beneficiaries of Christopher Elliot, Deceased, Plaintiffs v. La Quinta Corporation, La Quinta Properties, Inc., La Quinta Development Partners, LP, Securitas Security Services Usa, Inc., Harry J. Burnham, Jeanette Ollie, Individually and d/b/a Shaw Athletic Youth Association, and John Does 1 through 5, Defendants
CASE NO. 2:06CV56
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI, DELTA DIVISION
2007 U.S. Dist. LEXIS 16837
March 8, 2007, Decided
COUNSEL: [*1] For The Wrongful Death Beneficiaris of Christopher Elliott, Deceased, Plaintiff: Dana J. Swan, LEAD ATTORNEY, CHAPMAN, LEWIS & SWAN, Clarksdale, MS; David Randall Wade, LEAD ATTORNEY, DAVID R. WADE, ATTORNEY, Florence, MS.
For LaQuinta Corporation, LaQuinta Properties, Inc., LaQuinta Development Partners, LP, Defendants: Monte L. Barton, Jr., LEAD ATTORNEY, COPELAND, COOK, TAYLOR & BUSH, Ridgeland, MS; Philip J. Chapman, COPELAND, COOK, TAYLOR & BUSH – Ridgeland, Ridgeland, MS.
For Securitas Security Services USA, Inc., Harry J. Burnham, Defendants: Dorrance Aultman, LEAD ATTORNEY, AULTMAN, TYNER & RUFFIN, LTD., Hattiesburg, MS; William Heath Hillman, LEAD ATTORNEY, AULTMAN, TYNER, MCNEESE & RUFFIN, Hattiesburg, MS.
JUDGES: Michael P. Mills, UNITED STATES DISTRICT JUDGE.
OPINION BY: Michael P. Mills
OPINION
MEMORANDUM OPINION
This cause comes before the court on the plaintiffs’ motion to remand [14] as well as the plaintiffs’ motion [24] to amend to add non-diverse defendants. The court has reviewed the briefs and submissions and is prepared to rule.
This is an action for the wrongful death of sixteen year old minor Christopher Elliot. Christopher drowned at the La Quinta [*2] Inn while on a trip with a community youth basketball team. This case was removed to federal court on March 31, 2006 from the Circuit Court of Bolivar County based on diversity of citizenship and federal question jurisdiction. Defendant Jeanette Ollie did not join in the removal and the other defendants have alleged that Ms. Ollie has been fraudulently joined in this action. The defendants also assert that any stated cause of action against Ms. Ollie is preempted by the Federal Volunteer Protection Act, giving rise to federal jurisdiction. The plaintiffs assert that they have stated claims against Ms. Ollie upon which relief can be granted, and further contend that there is no federal question in this lawsuit.
The defendant’s claim that the Federal Volunteer Protection Act, 42 U.S.C. 14501 et seq., gives rise to a federal question is incorrect. In Richardson v. United Steelworkers of America, the Fifth Circuit stated:
One clear feature of the “arising under” requirement, however, is the well-pleaded complaint rule: whether a claim arises under federal law must be determined from the allegations in the well-pleaded complaint. See generally [*3] Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3566 (2d ed.1984). In removal cases removed, the plaintiff’s well-pleaded complaint, not the removal petition, must establish that the case arises under federal law. See Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 106 S. Ct. 3229, 3232, 92 L. Ed. 2d 650 (1986); Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 103 S. Ct. 2841, 2847, 77 L. Ed. 2d 420 (1983). This requires the court to determine federal jurisdiction only from those allegations necessary to state a claim or, stated alternatively, a federal court does not have jurisdiction over a state law claim because of a defense that raises a federal issue. Franchise Tax Bd., 103 S. Ct. at 2846; Gully v. First Nat’l Bank, 299 U.S. 109, 57 S. Ct. 96, 81 L. Ed. 70 (1936); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). Under the well-pleaded complaint rule, federal preemption is generally a defensive issue that does not authorize removal of a case to federal court. See Powers, 719 F.2d at 764-65. [*4]
864 F.2d 1162, 1168 (5th Cir. 1989).
While it is true that when a federal cause of action completely preempts a state cause of action, any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law, that is not the case in the instant matter. See Richardson at 1169. The language of 42 U.S.C. 14502(a) states that “this chapter preempts the laws of any State to the extent that such laws are inconsistent with this chapter, except that this chapter shall not preempt any State law that provides additional protection from liability relating to volunteers or to any category of volunteers in the performance of services for a nonprofit or governmental entity.” As such, the Volunteer Protection Act does not completely preempt state law and does not give rise to a federal question.
The removing party, which is urging jurisdiction on the court, also bears the burden of demonstrating that jurisdiction is proper due to fraudulent/improper joinder. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir. 1992). The Fifth Circuit has stated:
The burden [*5] of persuasion placed upon those who cry “fraudulent joinder” is indeed a heavy one. In order to establish that an in-state defendant has been fraudulently joined, the removing party must show either that there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court; or that there has been outright fraud in the plaintiff’s pleadings of jurisdictional facts.
B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). The Fifth Circuit has reaffirmed that it “is insufficient that there be a mere theoretical possibility” of recovery; to the contrary, there must “at least be arguably a reasonable basis for predicting that state law would allow recovery in order to preclude a finding of fraudulent joinder.” Travis v. Irby, 326 F.3d 644, 648 (5th Cir. 2003)(citing Badon v. RJR Nabisco Inc., 224 F.3d 382, 386 (5th Cir. 2000)).
The defendants’ task is made considerably more difficult by the Fifth Circuit’s decisions in Smallwood v. Illinois Central Railroad Co., 385 F.3d 568 (5th Cir. 2004) and McKee v. Kansas City Southern Ry. Co., 358 F.3d 329, 336 n.2 (5th Cir. 2004). [*6] A majority of the en banc Fifth Circuit in Smallwood observed that:
Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder. That said, there are cases, hopefully few in number, in which a plaintiff has stated a claim, but has misstated or omitted discrete facts that would determine the propriety of joinder. In such cases, the district court may, in its discretion, pierce the pleadings and conduct a summary inquiry. … Discovery by the parties should not be allowed except on a tight judicial tether, sharply tailored to the question at hand, and only after a showing of its necessity.
Smallwood, 385 F.3d at 573. The Fifth Circuit in McKee similarly emphasized that the fraudulent joinder standard is more akin to a 12(b)(6) standard than the quasi-summary judgment standard which had previously been applied by many district judges in this circuit. It is accordingly plain, in light of McKee and Smallwood, that the improper/fraudulent joinder standard is far more deferential to a plaintiff’s allegations than had commonly been assumed.
With regard to defendant Ollie, the plaintiffs [*7] have alleged:
“That the Defendant, Jeanette Ollie d/b/a Shaw Athletic Youth Association, (“Ollie”), undertook and assumed a duty to supervise the minors in the group while in Jackson, Mississippi, but negligently failed to do so.”
The plaintiffs clearly allege negligent supervision against Ms. Ollie. However, under the Volunteer Protection Act, volunteers cannot be liable for simple negligence. The plaintiffs maintain that the Volunteer Protection Act does not apply to Ollie or the Shaw Athletic Youth Association because the organization has not received any federal designation as a qualifying exempt organization under 26 U.S.C. § 501(c)(3). Ms. Ollie has submitted an affidavit that avers that the “Shaw Athletic Youth Association” is a fictitious name created for the single purpose of ascribing a name to the group that would be traveling to Jackson, but that the group has not been formally organized or incorporated. The defendants contend that the Volunteer Protection Act does not require formal organization or articles of incorporation and presents competing affidavits regarding Ms. Ollie’s status as a volunteer for an amateur youth [*8] basketball team.
The term “nonprofit organization” is defined by the statute as a) any organization which is described in section 501(c)(3) of such title and is exempt from tax under section 501(a) of Title 26 and which does not practice any action which constitutes a hate crime referred to in subsection (b)(1) of the first section of the Hate Crime Statistics Act (28 U.S.C. 534); or b) any not-for-profit organization which is organized and conducted for public benefit and operated primarily for charitable, civic, educational, religious, welfare, or health purposes and which does not practice any action which constitutes a hate crime referred to in subsection (b)(1) of the first section of the Hate Crime Statistics Act. The legislative history of the act reflects that the bill covers not only “501(c)(3) organizations, but it also covers volunteers of the organizations which do good work, but do not have a tax exemption under 501(c)(3).” 143 Cong. Rec. S4915-05. The legislative history also indicates that the bill also “covers volunteers of local charities, volunteer fire departments, little leagues, veterans groups, trade associations, chambers of commerce, [*9] and other nonprofit entities that exist for charitable, religious, educational, and civic purposes.” Id.
Given the extremely broad definition of “organization” under the Volunteer Protection Act as well as the fact that the youths traveled to Jackson together as a team to engage in recreational sport, this court finds that the group constitutes an organization for the purposes of the Volunteer Protection Act. Under the Volunteer Protection Act a volunteer is not liable for simple negligence. The plaintiffs have only alleged simple negligence against defendant Ollie. Accordingly, the plaintiffs have no possibility of recovery against Ms. Ollie and the defendant has been improperly joined in the action.
The plaintiffs have also requested to amend their complaint to include Mississippi defendants Andrew Williams and Kerlin Janiver. Fed. R. Civ. Pro. 15 provides that motions to amend a complaint “shall be freely given when justice so requires.” However, when an amendment will destroy diversity jurisdiction the court must consider:(1) the extent to which the purpose of the amendment is to defeat federal jurisdiction; (2) whether the plaintiff has been dilatory in asking [*10] for an amendment; (3) whether the plaintiff will be significantly injured if amendment is not allowed; and (4) any other factors bearing on the equities. Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir.1987). The Fifth Circuit has rejected the rigid distinction between the post-removal joinder of indispensable parties under Fed. R. Civ. Pro. 19 and post-removal joinder of permissive parties under Rule 20. Rosa v. Aqualine Res., Inc., 2004 U.S. Dist. LEXIS 22130, 2004 WL 247990 *1 (N.D. Tex. 2004).
The state court complaint filed on March 16, 2006, in Bolivar County, Mississippi states: “at this time, Plaintiffs do not know the identity of John Does 1 through 5, but that said unnamed known defendants may include a person named “Johnny Murray,” and/or other agents, employees, servants or subsidiaries of La Quinta Development Partner, LP, and/or independent contractors of La Quinta Development Partners, LP.” The complaint also states: “by information and belief, the Defendants Securitas Security Services USA, Inc., (“Securitas”), and Harry J. Burnham, (“Burnham”) and a person named “Javarius” employed by Securitas, (sometimes referred to collectively herein as the [*11] “Securitas Defendants”), undertook and assumed the duties to provide security, surveillance, monitoring, and supervision for the safety and security of the guests at the La Quinta Inn.” While the plaintiffs have moved to remand, it seems unlikely that the sole purpose the plaintiffs have moved to amend their complaint is to defeat federal jurisdiction. The plaintiffs did, in fact, make allegations against unknown plaintiffs while the case was in state court. More telling, the complaint asserts allegations against an unknown “Javarius,” and the name of one of the persons they seek to add is actually Janiver.
The plaintiffs moved to amend on June 13, 2006, roughly three months after commencing this action. Three months is not an unduly dilatory amount of time to discover the names of unknown parties, particularly as discovery has not commenced in this matter.
The court must also consider whether the plaintiffs will be significantly injured if amendment is not allowed. The defendants argue that amendment is not necessary because the proposed parties were employees of Securitas at the time of Christopher’s drowning, and that they were within the scope of their employment [*12] which means that Securitas would be vicariously liable for any tortious acts committed by the proposed defendants. The plaintiffs counter by alleging that it is unknown if proposed defendants Williams and Janiver remained within the scope of employment during the time that they should have been guarding the pool area. In Hayes v. Illinois Cent. R.R., 2000 U.S. Dist. LEXIS 2405, 2000 WL 33907691 *2 (N.D. Miss. 2000), the Judge Biggers rejected the defendants’ argument that an employee was an unnecessary party since the corporation would be responsible under the doctrine of respondeat superior. The court found that the plaintiff had a right to seek recovery from the individual as well as the corporation. Id. This court also finds that the doctrine of respondeat superior does not preclude the plaintiffs from seeking recovery from the defendants individually.
As neither party has alleged any additional factors bearing on the equity of amendment, this court finds that an examination of the Hensgens factors demonstrates that amendment is proper in this instance.
Accordingly, the plaintiffs’ motion [14] to remand is GRANTED. The plaintiffs’ motion [24] to amend is also GRANTED. [*13] Defendant Ollie has been improperly joined; however, the plaintiffs are hereby granted leave to file an amended complaint naming Andrew Williams and Keith Janiver as defendants. The amended complaint must be filed within ten days of entry of this order. This case is now remanded back to the Circuit Court of Bolivar County, Mississippi.
This the 8<th> day of March, 2007.
/s/ Michael P. Mills
UNITED STATES DISTRICT JUDGE
Recreation Law 