An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.
Posted: January 16, 2017 Filed under: Indiana, Minors, Youth, Children, Summer Camp, Youth Camps | Tags: Causation, Foreseeability, Intervening Cause, Release, Sexual Preditor, Superseding Cause Leave a commentYMCA summer camp sued in Indiana for sexual assault on a minor by a predator hiding in the woods. The brochure marketing the program specifically outlined how bathroom procedures were to be done. The procedure was not followed in this case, which led to a successful lawsuit.
State: Indiana, Court of Appeals of Indiana
Plaintiff: A.M.D., a Minor, by his Parents and Guardians, John Doe and Jane Doe, and John Doe and Jane Doe, individually
Defendant: Young Men’s Christian Association of Greater Indianapolis
Plaintiff Claims: 1) The YMCA negligently supervised A.M.D.; 2) the YMCA failed to prevent foreseeable intentional conduct by a third-party; 3) the YMCA did not have to be the sole cause of A.M.D.’s injuries; and 4) the YMCA is not released from its responsibility to A.M.D. and his parents by virtue of the exculpatory clause contained in the camper application form signed by Jane Doe.
Defendant Defenses: Release and Superseding or Intervening Cause
Holding: for the Plaintiff
Year: 2013
First, this is a case based on a sexual assault of a minor at a day or summer camp offered by the defendant. The case is awful, ugly, and sad.
Second, the issue of whether or not the release was valid for the minor’s injuries was never part of the case. The issue is how the defendant’s rules created a small issue for the situation that of course blew up when the problem the rules attempted to prevent occurred.
The minor was enrolled in a day camp offered by the defendant. The camp was for kids in kindergarten through sixth grade. On the day of the incident, 20 minors and three counselors went to a park to go rafting. The group arrived at the park around 2:00 PM.
The park was not known for any incidents, and no one was spotted that day that gave any concern to the counselors.
When the rafting began, one counselor was stationed at the start and two counselors at the end. Shortly after the rafting started the plaintiff minor told one of the counselors he had to go to the bathroom. The public restrooms were a 10-15-minute walk away. The counselor instructed the minor to go pee on a bush that was within her view. The counselor new about the defendant’s bathroom policy.
Raab [counselor] instructed A.M.D. [minor] to urinate in the bushes, she knew that the YMCA’s bathroom policy required at least one counselor and one buddy to go with a camper to the restroom. No campers were to go to the bathroom by themselves.
When the counselor turned her attention to the creek to check on the other children the minor disappeared.
Unknown to A.M.D. and the YMCA counselors, there was a sexual predator hiding in the woods near where A.M.D. was going to the bathroom. It was later determined that Stephen Taylor was the person hiding in the woods, and who attacked A.M.D. Taylor was so well hidden that A.M.D. did not see Taylor approach him from the front until after he had finished going to the bathroom.
Once Taylor emerged from the woods, he approached A.M.D., told him he was a doctor, and offered to give A.M.D. a piggy-back ride, which A.M.D. accepted. Taylor successfully lured A.M.D. farther into the woods where they were both alone and out of sight from any of the YMCA camp counselors. While hidden in the woods, Taylor sexually assaulted A.M.D.
Once the counselor knew the minor was missing she started screaming his name and looking for him.
The family of the minor filed suit against the defendant YMCA alleging negligence. The YMCA filed a motion for summary judgment claiming:
1) The YMCA was not the proximate cause of A.M.D.’s injuries because Taylor’s criminal actions were not reasonably foreseeable; and 2) the exculpatory clause contained in the camper application signed by Jane Doe released the YMCA from any and all claims.
The plaintiff’s opposed the motion for summary judgment claiming four theories:
…1) The YMCA negligently supervised A.M.D.; 2) the YMCA failed to prevent foreseeable intentional conduct by a third-party; 3) the YMCA did not have to be the sole cause of A.M.D.’s injuries; and 4) the YMCA is not released from its responsibility to A.M.D. and his parents by virtue of the exculpatory clause contained in the camper application form signed by Jane Doe.
The trial court granted the defendant’s motion for summary judgment, and the plaintiff’s appealed.
Analysis: making sense of the law based upon these facts.
The appellate court started by establishing the elements the plaintiff’s must prove to win their case. Indiana uses a three-part test to establish negligence.
A plaintiff seeking damages for negligence must establish (1) a duty owed to the plaintiff by the defendant, (2) a breach of the duty, and (3) an injury proximately caused by the breach of duty. Absent a duty, there can be no breach, and therefore, no recovery for the plaintiff in negligence.
Whether or not there was a duty owed is also a 3-part test in Indiana.
…(1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns, but that analysis is not necessary where the duty is well settled.
The trial court found the defendant owed a duty to the minor, and this issue was not argued during the appeal. The issue then was causation.
We have held that causation is an essential element of a negligence claim. The injurious act must be both the proximate cause and the cause, in fact, of an injury. Generally, causation, and proximate cause, in particular, is a question of fact for the jury’s determination.
Causation can be broken by a superseding and intervening causation. This means a third party or third action caused the real injury or interrupted the chain of events for the original cause so that the defendant is not longer liable.
The doctrine of superseding or intervening causation has long been part of Indiana’s common law. It provides that when a negligent act or omission is followed by a subsequent negligent act or omission so remote in time that it breaks the chain of causation, the original wrongdoer is relieved of liability. A subsequent act is “superseding” when the harm resulting from the original negligent act “could not have reasonably been foreseen by the original negligent actor.” Whether the resulting harm is “foreseeable” such that liability may be imposed on the original wrongdoer is a question of fact for a jury.
Meaning that the action of the predator in attacking the minor was a superseding and intervening cause of action.
However, if the superseding or intervening cause of action was foreseeable by the defendant, then it does not relieve the defendant of liability. The Restatement (Second) of Torts §449, known as the very duty doctrine, provides an example.
If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act, whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby. At the heart of these concepts is the necessity for an analysis of foreseeability.
The brochure the defendant created, stated the rules for the camper’s bathroom procedure. This was obviously not followed by the counselor.
No camper is ever alone, and no camper is ever alone with a staff member. All campers will take trips to the bathroom with entire camp and/or camp groups and camp staff. Campers will only use bathrooms inspected for safety by camp staff.
There was additional information requiring the day campers to go to the bathroom in pairs. The defendant also had a code of conduct covering restroom supervision.
[Why is a restroom procedure in a code of conduct?]
3. Restroom supervision: Staff will make sure the restroom is not occupied by suspicious or unknown individuals before allowing children to use the facilities. Staff will stand in the doorway while children are using the restroom. This policy allows privacy for the children and protection for the staff (not being alone with a child). If staff are assisting younger children, doors to the facility must remain open. No child, regardless of age, should ever enter a restroom alone on a field trip. Always send children in pairs, and whenever possible, with staff.
Finally, the court found that counselors were instructed to never leave a child unsupervised.
In particular, a day camp counselor, the position Raab held with the YMCA at the time of the molestation, has the general function of directly supervising approximately twelve campers and taking responsibility for each child’s safety.
The counselor at her deposition testified she knew the procedures.
The court found this information, provided by the defendants own documents and training, showed the defendant knew this type of incident was foreseeable.
We disagree that only one conclusion can be drawn or inferred from the undisputed facts. “[A]n actor need not foresee the exact manner in which harm occurs, but must, in a general way, foresee the injurious consequences of his act.”
The court found three factors were important in the analysis of the issue.
First, courts on review have examined whether the intervening actor is independent from the original actor. Id. Next, we examine whether the instrumentality of harm was under the complete control of the intervening actor. Id. Third, we examine whether the intervening actor as opposed to the original actor is in a better position to prevent the harm.
Consequently, the appellate court held that whether or not the criminal act by the third party was foreseeable was for a jury to decide.
Whether the criminal assault on A.M.D. by a stranger, Taylor, was foreseeable by the YMCA such that the chain of causation was broken, should be decided by a trier of fact and not as a matter of law.
The case was sent back to trial for a jury trial to determine if the actions of the third party were foreseeable.
So Now What?
First, it sucks to have a case like this; however, it has a lot of useful information.
Fifteen to twenty children, some as young as kindergartener’s and three adults for an activity around water, the first issue I suspect most of you thought of was, there are not enough counselors.
Second, with all the written documentation that the defendant created, I don’t believe foreseeability will be difficult to find by the jury. In fact, anyone can argue that the paper was created in response to this possibility, and then obviously the issue was foreseeable.
At the same time, how do you get across to the members of your staff the issues at play here without creating your own noose? Some documentation is required. Create it under the write heading, in the right document if needed. More importantly, train your staff. Don’t just throw paper at them.
Documentation is proof of just being lazy over the winter in this type of situation. Probably because the documentation was found in at least three different places, it was “make work” for three different people. Writing rules down over the winter is easy and lasts for years (decades in too many situations). However, training your staff lasts a lifetime.
Look at who you need to understand what you are writing down. In most cases young men and women who seem not to read much but who can absorb a lot of information. If you expect 20 year olds to read a book for a job, you are your own worst enemy. You are only creating documentation that will be used to prove you or your staff was negligent.
Training allows the information to be absorbed in the way necessary and provides the understanding of the rules. Training says this is how you do it, now show me you know how to do it, and then tell me why you do it this way. Training is a pain for you, and your senior staff, but if you want to solve problems and really help the people, your employees, trains them. Let them know why you have to do things this way and then teach them to do things this way.
Think about it. What is going to be more effective. Giving everyone a book to read at night or creating a scenario from this incident and having your staff act it out and go through the issues.
Don’t create documentation because you have nothing else to do over the winter, or you are trying not to train your staff.
Never create documentation just to punish employees. Those will always come back to haunt you. You can’t sue an employee as a defense anyway, except in extremely rare cases, so why create a situation that will come back to haunt you in other ways.
This is a sad case all around.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2017 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
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, Release, Sexual Preditor, Intervening Cause, Foreseeability, Causation, Superseding Cause, Intervening Cause ,
A.M.D., a Minor, vs. Young Men’s Christian Association of Greater Indianapolis, 2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527
Posted: January 5, 2017 Filed under: Indiana, Legal Case, Minors, Youth, Children, Release (pre-injury contract not to sue), Youth Camps | Tags: Causation, Foreseeability, Intervening Cause, Release, Sexual Preditor, Superseding Cause Leave a commentA.M.D., a Minor, vs. Young Men’s Christian Association of Greater Indianapolis, 2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527
A.M.D., a Minor, by his Parents and Guardians, John Doe and Jane Doe, and John Doe and Jane Doe, individually, Appellants, vs. Young Men’s Christian Association of Greater Indianapolis, Appellee.
No. 49A04-1211-CT-551
COURT OF APPEALS OF INDIANA
2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527
July 19, 2013, Decided
July 19, 2013, Filed
NOTICE: PURSUANT TO INDIANA APPELLATE RULE 65(D), THIS MEMORANDUM DECISION SHALL NOT BE REGARDED AS PRECEDENT OR CITED BEFORE ANY COURT EXCEPT FOR THE PURPOSE OF ESTABLISHING THE DEFENSE OF RES JUDICATA, COLLATERAL ESTOPPEL, OR THE LAW OF THE CASE.
PUBLISHED IN TABLE FORMAT IN THE NORTH EASTERN REPORTER.
SUBSEQUENT HISTORY: Transfer denied by A.M.D. v. YMCA of Greater Indianapolis, 997 N.E.2d 356, 2013 Ind. LEXIS 883 (Ind., Nov. 7, 2013)
PRIOR HISTORY: [*1]
APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Heather Welch, Judge. Cause No. 49D12-0805-CT-20350.
Taylor v. State, 891 N.E.2d 155, 2008 Ind. App. LEXIS 1678 (Ind. Ct. App., 2008)
CORE TERMS: summary judgment, camper, causation, counselor, bathroom, staff, proximate cause, restroom, superseding, intervening, exculpatory clause, foreseeability, foreseeable, bush, rafting, looked, matter of law, superseding cause, reasonably foreseeable, duty to supervise, chain of causation, omission, sexual assaults, suspicious, violent, negligent act, question of fact, supervision, supervising, designated
COUNSEL: ATTORNEY FOR APPELLANTS:DANIEL S. CHAMBERLAIN, Doehrman Chamberlain, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: MARK D. GERTH, JEFFREY D. HAWKINS, MICHAEL WROBLEWSKI, Kightlinger & Gray, LLP, Indianapolis, Indiana.
JUDGES: FRIEDLANDER, Judge. ROBB, C.J., and KIRSCH, J., concur.
OPINION BY: FRIEDLANDER
OPINION
MEMORANDUM DECISION – NOT FOR PUBLICATION
FRIEDLANDER, Judge
A.M.D., a minor, by his parents and guardians, John Doe and Jane Doe, and John Doe and Jane Doe individually, appeal from the trial court’s order granting summary judgment in favor of Young Men’s Christian Association of Greater Indianapolis and YMCA of Greater Indianapolis (collectively, the YMCA) in an action brought by the Does alleging negligence against the YMCA. The following issue is presented in this appeal: Did the trial court err by granting summary judgment in favor of the YMCA under the doctrine of superseding causation?
We reverse.
The facts designated to the trial court for purposes of ruling on the motion for summary judgment follow. When A.M.D. was eight years old, he participated in a summer day camp through the YMCA’s Day Camp [*2] Program at Lions Park in Zionsville, Indiana. The camp was offered to children in grades kindergarten through sixth grade. On June 27, 2006, YMCA camp counselors accompanied A.M.D. and the other camp participants to Creekside Park, which is a park immediately adjacent to Lions Park. On that particular day there were fifteen to twenty children, ranging in age from six years old to twelve years old, and three camp counselors at the park.
The purpose of the trip to Creekside Park was to give the children the opportunity to enjoy rafting and playing in and around the water. The camp began that day at 7:00 a.m. and the group walked over to Creekside Park at approximately 2:00 p.m. Until the time of the incident giving rise to this appeal, there was nothing out of the ordinary at the park and there were no activities or individuals that gave anyone at the YMCA cause for concern. In particular, there was no one at the park who was lingering around, looked out of place, or generally looked suspicious.
During the rafting excursion, the counselors were situated such that one counselor, Megan Donaldson, was positioned where the rafting began, and two counselors, Melissa Raab and Jay Binkert, were [*3] positioned where the rafting ended. Shortly after the rafting began, A.M.D. told Raab that he needed to go to the bathroom. Since the public restroom was a ten-to-fifteen minute walk away, Raab allowed A.M.D. to urinate by some bushes that were within Raab’s direct and unobstructed view. Raab instructed A.M.D. to remain by the bush and to return when he was finished. At the time Raab instructed A.M.D. to urinate in the bushes, she knew that the YMCA’s bathroom policy required at least one counselor and one buddy to go with a camper to the restroom. No campers were to go to the bathroom by themselves.
A.M.D. went to the bathroom by the bushes as instructed and was within Raab’s line of sight. Raab momentarily turned her attention towards the creek to check on the other children, and turned her attention away from A.M.D. for less than a minute. When Raab looked back to check on A.M.D., he was gone. Unknown to A.M.D. and the YMCA counselors, there was a sexual predator hiding in the woods near where A.M.D. was going to the bathroom. It was later determined that Stephen Taylor was the person hiding in the woods, and who attacked A.M.D. Taylor was so well hidden that A.M.D. did not see Taylor [*4] approach him from the front until after he had finished going to the bathroom.
Once Taylor emerged from the woods, he approached A.M.D., told him he was a doctor, and offered to give A.M.D. a piggy-back ride, which A.M.D. accepted. Taylor successfully lured A.M.D. farther into the woods where they were both alone and out of sight from any of the YMCA camp counselors. While hidden in the woods, Taylor sexually assaulted A.M.D. Once Raab noticed that A.M.D. was not by the bushes, she immediately began looking for A.M.D. and screaming his name. Ultimately, A.M.D. was found, but the perpetrator had run away. Approximately six months later, Taylor was arrested on an unrelated charge and was subsequently identified as the person who had sexually assaulted A.M.D. Taylor was convicted of a class A felony and was sentenced to fifty years in the Department of Correction. See Taylor v. State, 891 N.E.2d 155 (Ind. Ct. App. 2008), trans. denied, cert. denied, 555 U.S. 1142, 129 S. Ct. 1008, 173 L. Ed. 2d 301 (2009), reh’g denied, 556 U.S. 1148, 129 S. Ct. 1665, 173 L. Ed. 2d 1032; Taylor v. State, No. 06A04-1009-PC-557, 951 N.E.2d 312 (July 29, 2011), trans. denied.
Prior to June 27, 2006, the YMCA was not aware of any criminal incidents or crimes that [*5] were committed at the Lions or Creekside Parks. Prior to June of 2006, there were no other incidents of violent or sexual assaults reported at Creekside Park. There have been no incidents of violent or sexual assaults reported at Lions Park for at least the past twenty-five years.
On May 7, 2008, the Does individually, and on behalf of A.M.D., filed a negligence action against the YMCA. The YMCA filed a motion for summary judgment in the action presenting the following two claims: 1) The YMCA was not the proximate cause of A.M.D.’s injuries because Taylor’s criminal actions were not reasonably foreseeable; and 2) the exculpatory clause contained in the camper application signed by Jane Doe released the YMCA from any and all claims. The Does filed their opposition to the YMCA’s motion for summary judgment claiming that the following four theories precluded the entry of summary judgment in the YMCA’s favor: 1) The YMCA negligently supervised A.M.D.; 2) the YMCA failed to prevent foreseeable intentional conduct by a third-party; 3) the YMCA did not have to be the sole cause of A.M.D.’s injuries; and 4) the YMCA is not released from its responsibility to A.M.D. and his parents by virtue [*6] of the exculpatory clause contained in the camper application form signed by Jane Doe.
On September 17, 2012, the trial court held a hearing on the YMCA’s motion for summary judgment. In part, the trial court’s order on summary judgment reads as follows:
The Court hereby finds that the Defendant, YMCA, is entitled to summary judgment as a matter of law and the Court hereby GRANTS the Defendant, YMCA’s, Motion for Summary Judgment. The Court hereby DENIES the Plaintiffs’ Partial Motion for Summary Judgment regarding the exculpatory clause. The Court further notes that the Defendant never disputed that they had a duty to supervise A.M.D. Thus, the Court does not find this issue was before the Court and the Court declines to address the Plaintiffs[sic] Motion for Partial Summary Judgment on this issue as it is moot due to the Court’s ruling on the issue of proximate cause. There is no just reason for delay, and [the YMCA] is entitled to judgment in their favor and against A.M.D., a Minor, by His Parents and Guardians, JOHN DOE AND JANE DOE, and JOHN DOE AND JANE DOE, Individually on the Plaintiffs’ Complaint as a matter of law. This Judgment is a full, complete, and final Judgment on the [*7] Plaintiffs’ Complaint as to [the YMCA] in this case. The Clerk of this Court shall enter the Judgment in the Judgment Docket.
Appellant’s Appendix at 21. A.M.D. and the Does appeal. Additional facts will be supplied where necessary.
A.M.D. and the Does contend that the trial court erred by granting the YMCA’s motion for summary judgment and by denying their motion for partial summary judgment on the issue of the impact of the exculpatory clause in the camper application signed by Jane Doe. The trial court included in its summary judgment order specific findings of fact and conclusions of law. A trial court’s specific findings and conclusions are not required, and, while they offer insight into the trial court’s rationale for the judgment entered, and facilitate our review, we are not limited to reviewing the trial court’s reasons for granting or denying summary judgment. Trustcorp Mortg. Co. v. Metro Mortg. Co., Inc., 867 N.E.2d 203 (Ind. Ct. App. 2007). A trial court’s order granting summary judgment may be affirmed upon any theory supported by the designated materials. Id. Additionally, the fact that the parties filed cross-motions for summary judgment does not alter our standard of [*8] review. Id. In that situation, we consider each motion separately in order to determine whether the moving party is entitled to judgment as a matter of law. Id.
A plaintiff seeking damages for negligence must establish (1) a duty owed to the plaintiff by the defendant, (2) a breach of the duty, and (3) an injury proximately caused by the breach of duty. Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011). “Absent a duty, there can be no breach, and therefore, no recovery for the plaintiff in negligence.” Vaughn v. Daniels Co. (West Virginia), Inc., 841 N.E.2d 1133, 1143 (Ind. 2006). Where the action involves negligent supervision of a child, we have made the following observation:
[T]here is a well-recognized duty in tort law that persons entrusted with children have a duty to supervise their charges. The duty is to exercise ordinary care on behalf of the child in custody. The duty exists whether or not the supervising party has agreed to watch over the child for some form of compensation. However, the caretaker is not an insurer of the safety of the child and has no duty to foresee and guard against every possible hazard.
Davis v. LeCuyer, 849 N.E.2d 750, 757 (Ind. Ct. App. 2006). Our Supreme [*9] Court announced the three-part test for determining whether to impose a duty at common law in Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991), viz. (1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns, but that analysis is not necessary where the duty is well settled. Northern Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462 (Ind. 2003). Furthermore, the trial court found and the parties do not contest the finding that the YMCA owed a duty to supervise A.M.D.
In this case, the question presented on appeal concerns the issue of causation. We have held that causation is an essential element of a negligence claim. Bush v. N. Ind. Pub. Serv. Co., 685 N.E.2d 174, 178 (Ind. Ct. App. 1997). “The injurious act must be both the proximate cause and the cause in fact of an injury. Generally, causation, and proximate cause in particular, is a question of fact for the jury’s determination.” Correll v. Ind. Dep’t of Transp., 783 N.E.2d 706, 707 (Ind. Ct. App. 2002). In the present case, the trial court entered summary judgment in favor of the YMCA after engaging in an analysis of causation, which we reproduce in pertinent [*10] part as follows:
Summary Judgment Standard
. . . .
11. This Court notes the issue presented by YMCA’s Motion for Summary Judgment only addresses the element of causation. The Court does find under well-settled Indiana Law that the YMCA had a duty to supervise A.M.D. However, the issue for this Court is whether there is a material dispute of fact on the element of proximate cause.
12. In order to prevail in a negligence action, the plaintiff must demonstrate all the requisite elements of a cause of action: “(1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty by the defendant, and (3) an injury to the plaintiff as a proximate result of the breach.” Ford Motor Co. v Rushford, 868 N.E.2d 806, 810 (Ind. 2007). The question of whether the defendant owes the plaintiff a legal duty is generally one of law for the court. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992).
. . . .
17. Causation is an essential element of a negligence claim. Bush v. Northern Indiana Pub. Serv. Co., 685 N.E.2d 174, 178 (Ind. Ct. App. 1997), trans. denied (1999). “Proximate cause has two components: causation-in-fact and scope of liability. City of Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, 1243-44 (Ind. 2003). [*11] To establish factual causation, the plaintiff must show that but for the defendant’s allegedly tortious act or omission, the injury at issue would not have occurred. Id. The scope of liability doctrine asks whether the injury was a “natural and probable consequence” of the defendant’s conduct, which in the light of the circumstances, should have been foreseen or anticipated. Id. at 1244. Liability is not imposed on the defendant if the ultimate injury was not “reasonably foreseeable” as a consequence of the act or omission. Id. Therefore, the fundamental test of proximate cause is “reasonable foreseeability”. Lutheran Hospital of Indiana, Inc v. Blaser, 634 N.E.2d 864, 871 (Ind. Ct. App. 1994).
18. Generally, causation, and proximate cause in particular, is a question of fact for the jury’s determination. Adams Twp. Of Hamilton County v. Sturdevant, 570 N.E.2d 87, 90 (Ind. Ct. App. 1991). However, “Where only a single conclusion can be drawn from the set of facts, proximate cause is a question of law for the court to decide.[“] Merchants National Bank v. Simrell’s, 741 N.E.2d 383, 389 (Ind. Ct. App. 2000).
19. In this case, the facts are undisputed and only a single conclusion can be [*12] drawn or inferred from the facts. Therefore, the Court finds that the issue of proximate cause is a question of law not fact.
Appellant’s Appendix at 13-16. The trial court then analyzed cases addressing the issue whether intentional criminal acts of third parties break the chain of causation under the doctrines of superseding and intervening causation.1
1 The Supreme Court described the doctrine as follows:
The doctrine of superseding or intervening causation has long been part of Indiana common law. It provides that when a negligent act or omission is followed by a subsequent negligent act or omission so remote in time that it breaks the chain of causation, the original wrongdoer is relieved of liability. A subsequent act is “superseding” when the harm resulting from the original negligent act “could not have reasonably been foreseen by the original negligent actor.” Whether the resulting harm is “foreseeable” such that liability may be imposed on the original wrongdoer is a question of fact for a jury.
Control Techniques, Inc. v. Johnson, 762 N.E.2d 104 (Ind. 2002) (internal citations omitted)(emphasis supplied).
Our Supreme Court in Control Techniques examined whether Indiana’s Comparative [*13] Fault Act2 had subsumed or abrogated the doctrines of superseding and intervening causation, and the impact of the viability of those doctrines, such that error could be predicated upon the refusal to instruct the jury thereon. In concluding that no instruction on the doctrine of superseding causation was warranted, the Supreme Court stated as follows:
For the reasons expressed below, we agree with the Court of Appeals that no separate instruction is required. In capsule form, we conclude that the doctrines of causation and foreseeability impose the same limitations on liability as the “superseding cause” doctrine. Causation limits a negligent actor’s liability to foreseeable consequences. A superseding cause is, by definition, one that is not reasonably foreseeable. As a result, the doctrine in today’s world adds nothing to the requirement of foreseeability that is not already inherent in the requirement of causation.
Control Techniques, Inc. v. Johnson, 762 N.E.2d at 108. The court went on to hold that the adoption of the Comparative Fault Act did not affect the doctrine of superseding cause. Id.
2 Ind. Code Ann. § 34-51-2-1 et seq. (West, Westlaw current through June 29 2013, excluding [*14] P.L. 205-2013).
The YMCA argues that the trial court correctly found that Taylor’s criminal conduct was a superseding or intervening cause of the harm to A.M.D. and cites Restatement (Second) of Torts § 448 in support. The Restatement provides as follows:
The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.
The YMCA claims that it was not foreseeable that a sexual predator would be lying in wait in the woods in an attempt to sexually molest one of their campers, and in particular, A.M.D.
Restatement (Second) of Torts §449, known as the very duty doctrine, provides as follows: If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, [*15] negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby. At the heart of these concepts is the necessity for an analysis of foreseeability.
The YMCA’s bathroom procedure for the camp, as set forth in the camp brochures provides as follows:
No camper is ever alone and no camper is ever alone with a staff member. All campers will take trips to the bathroom with entire camp and/or camp groups and camp staff. Campers will only use bathrooms inspected for safety by camp staff.
Appellant’s Appendix at 179. Additionally, day campers were to go to the bathroom in pairs, with one counselor present. The YMCA’s Code of Conduct for Day Camp Counselors provided as follows with respect to restroom supervision:
3. Restroom supervision: Staff will make sure the restroom is not occupied by suspicious or unknown individuals before allowing children to use the facilities. Staff will stand in the doorway while children are using the restroom. This policy allows privacy for the children and protection for the staff (not being alone with a child). If staff are assisting younger children, doors to the facility must remain open. No child, regardless [*16] of age, should ever enter a restroom alone on a field trip. Always send children in pairs, and whenever possible, with staff.
Id. at 213.
Further, the counselors were instructed that they shall never leave a child unsupervised. In particular, a day camp counselor, the position Raab held with the YMCA at the time of the molestation, has the general function of directly supervising approximately twelve campers and taking responsibility for each child’s safety. Several of the major responsibilities of the Camp Site Director involved the protection of the campers, such as personally supervising the campers at all times, being directly responsible for the daily safety and schedule of the campers, and maintaining a clean, neat, and safe campsite.
Raab’s deposition testimony indicated her understanding that an eight-year-old child should not be allowed to go to the restroom by himself or wander off because the YMCA did not want the child to get lost, suffer any harm, or be attacked. She further attested to the fact that under the YMCA’s rules campers are allowed to use only those bathrooms inspected by staff to make sure there was no one suspicious lurking around or lingering. Another YMCA employee [*17] attested as follows:
Q: What are the bathroom procedures for the YMCA?
A: For one staff person to accompany two children to the restroom.
Q: And why do you have that procedure or policy?
A: To protect children and to protect the staff.
Q: Protect children from what?
A: Potential child-on-child abusers or any interaction of any kind that’s inappropriate, fighting.
Q: Well, you would also have that policy and procedure for the one staff and two children to prevent sexual molestation from third parties, correct?
A: Correct.
Q: And that’s exactly what happened here; Mr. Taylor came upon the scene, found this child and assaulted him?
A: I can’t . . . .
Id. at 181.
Other designated evidence before the trial court suggested that until the time of the incident giving rise to this appeal, there was nothing out of the ordinary at the park and there were no activities or individuals that gave anyone at the YMCA cause for concern on the day in question. In particular, there was no one at the park who was lingering around, looked out of place, or generally looked suspicious. Furthermore, prior to June 27, 2006, the YMCA was not aware of any criminal incidents or crimes that were committed at the Lions or Creekside [*18] Parks. Additionally, prior to June of 2006, there were no other incidents of violent or sexual assaults reported at Creekside Park. There have been no incidents of violent or sexual assaults reported at Lions Park for at least the past twenty-five years.
We disagree that only one conclusion can be drawn or inferred from the undisputed facts. “[A]n actor need not foresee the exact manner in which harm occurs, but must, in a general way, foresee the injurious consequences of his act.” Rauck v. Hawn, 564 N.E.2d 334, 339 (Ind. Ct. App. 1990). Furthermore, a determination of whether Taylor’s act was a superseding or intervening cause of A.M.D.’s harm such that the original chain of causation has been broken depends on a determination of whether it was reasonably foreseeable under the circumstances that an actor would intervene in such a way as to cause the resulting injury. Scott v. Retz, 916 N.E.2d 252 (Ind. Ct. App. 2009).
In order to make that determination, three factors are pertinent to the analysis. First, courts on review have examined whether the intervening actor is independent from the original actor. Id. Next, we examine whether the instrumentality of harm was under the complete [*19] control of the intervening actor. Id. Third, we examine whether the intervening actor as opposed to the original actor is in a better position to prevent the harm. Id. At a minimum, the facts pertinent to the third factor are in dispute. Whether the criminal assault on A.M.D. by a stranger, Taylor, was foreseeable by the YMCA such that the chain of causation was broken, should be decided by a trier of fact and not as a matter of law.3
3 The trial court did not resolve the issue of whether the exculpatory clause in the camper application signed by Jane Doe released YMCA from liability because the issue was moot. We do not address the arguments pertaining to the release of liability because there is no ruling on this issue subject to our review.
Judgment reversed.
ROBB, C.J., and KIRSCH, J., concur.
Connecticut court determines that a release will not bar a negligent claim created by statute.
Posted: November 21, 2016 Filed under: Assumption of the Risk, Connecticut, Minors, Youth, Children, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Connecticut Skier Safety Act, High School Team, Minor, parent, Release, ski area, skiing, Snow Making Leave a commentStatute requires ski area to mark equipment on the slope. The ski area argued the release protected them from negligence claims based on the statute, and the court disagreed.
Laliberte v. White Water Mountain Resorts, 2004 Conn. Super. LEXIS 2194
State: Connecticut, Superior Court of Connecticut, Judicial District of Tolland, Complex Litigation Docket at Rockville
Plaintiff: Alexandra Laliberte
Defendant: White Water Mountain Resorts
Plaintiff Claims: negligence
Defendant Defenses: Connecticut Skier Safety Act & release
Holding: for the plaintiff
Year: 2004
The plaintiff was skiing as part of a high school varsity ski team. She hit a snow making device which was inadequately identified and placed on the trail according to the plaintiff.
The defendant moved for summary judgment based on the Connecticut Skier Safety Act and a release the plaintiff had signed to participate on the ski team.
The release had been signed when the plaintiff was a minor, however, she did not rescind the release when she became an adult.
As noted above, the plaintiffs concede that the release was signed by the plaintiffs knowingly and willingly. Also, the plaintiffs make no attack on the efficacy of the waiver because Ms. Laliberte was a minor at the time of its execution.
Analysis: making sense of the law based on these facts.
The first argument was whether the Connecticut Skier Safety Act shielded the defendant from liability. The act requires the ski area operator to mark conspicuously the location of snow making equipment.
Sec. 29-211. (Formerly Sec. 19-418k). Duties of operator of passenger tramway or ski area.
In the operation of a passenger tramway or ski area, each operator shall have the obligation to perform certain duties including, but not limited to: (1) Conspicuously marking all trail maintenance vehicles and furnishing the vehicles with flashing or rotating lights which shall be operated whenever the vehicles are working or moving within the skiing area; (2) conspicuously marking the entrance to each trail or slope with a symbol, adopted or approved by the National Ski Areas Association, which identifies the relative degree of difficulty of such trail or slope or warns that such trail or slope is closed; (3) ensuring that any lift tower that is located on a trail or slope is padded or otherwise protected; (4) maintaining one or more trail boards, at prominent locations within the ski area, displaying such area’s network of ski trails and slopes, designating each trail or slope in the same manner as provided in subdivision (2) of this section and notifying each skier that the wearing of ski retention straps or other devices used to prevent runaway skis is required by section 29-213, as amended by this act; (5) in the event maintenance personnel or equipment are being employed on any trail or slope during the hours at which such trail or slope is open to the public, conspicuously posting notice thereof at the entrance to such trail or slope; (6) conspicuously marking trail or slope intersections; (7) ensuring that passenger tramways, as defined in subparagraph (D) of subdivision (1) of section 29-201, as amended by this act, are equipped with restraint devices; (8) at the entrance of a passenger tramway, as defined in subparagraph (D) of subdivision (1) of section 29-201, as amended by this act, conspicuously posting instructions regarding the proper use of a restraint device on such passenger tramway and notice that the use of a restraint device on such passenger tramway is required by section 29-213, as amended by this act; and (9) ensuring that any hydrant, snow-making equipment and pipes that are located within the borders of a designated slope, trail or area that is approved and open for skiing by the operator and regularly groomed as part of the operator’s normal maintenance activities are padded or marked by portable fencing or a similar device.
Emphasize (bold) added
The plaintiff’s argued it was not marked. The ski area argued that the snow making device was not located on a ski trail or slope. Consequently, the court held that because there was a factual dispute, this matter had to go to trial.
The next issue was whether the release stopped claims created or based upon the statute. Normally, these claims are called negligence per se claims. (See Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability or Motion for Summary Judgement failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case for more on Negligence Per Se claims.) Negligence per se claims are negligence claims based on a statute or rule created to protect people. Normally, releases do not work against negligence per se claims. That wording or pleading in describing the claim was not used in this case.
The parties agreed that the release itself was valid. The issue was what the release applied to.
“The interpretation of an exculpatory contract is colored by two diametrically opposed legal principles: the first, that it is against public policy to contract away one’s liability for negligent acts in advance and the second, that the court will enforce agreements of the parties made with consideration.”
Squarely presented, however, is the issue of whether a preinjury release is enforceable to relieve the defendant of civil liability for an alleged negligent violation of a statutorily created duty with respect to the operation of a recreational facility.
The court first looked at the Connecticut Skier Safety Act and found the act was silent on the effect of a release. The court then reviewed other Connecticut cases and decisions from other states where a release was raised as a defense to a negligence claim based upon a statute. Generally, the court found “… the statute created a public duty which the tenant had no power to extinguish. Private parties cannot “suspend the law by waiver or express consent.” Quoting from another case the court found ““parties may not stipulate for protection against liability for negligence in the performance of a duty imposed by law or where public interest requires performance.”
The court found two bases for invalidating releases when argued to bar claims like this.
These cases invalidating preinjury waivers where the basis of liability is a violation of a statute appear to be based either on a presumption that such releases are against public policy or on the legal inability of the releasor to waive a duty which protects the public or a class of persons of which the releasor is only one member.
Here the court found using a release to avoid liability for a statutory duty would allow defendants to have free reign to ignore the statute.
If liability for breach of statutory duty may be waived preinjury, the operator of a recreational facility could design, construct, and run a facility in total disregard of the legislatively prescribed rules with impunity, as to civil damages, simply by restricting use of the facility to those patrons willing to sign a release. In other words, the operator could repeal the protection of the legislatively selected class member by member.
The motion for summary judgment was denied and the case set for trial.
So Now What?
This result is probably the result you will find in all cases where the release is raised as a defense to a statutory duty. The only way to avoid this is to have the statute that creates the duty, include a clause that states the release is still valid.
Similar arguments are used by courts when they have determined that a statute that may have statutory duties and also has statutory protections eliminates the use of a release in full. Meaning the statute provided the protection the legislature wanted, that is all you get. Hawaii did this (Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release) and New Mexico in Berlangieri v. Running Elk Corporation, 132 N.M. 332; 2002 NMCA 60; 48, P.3d 70; 2002 N.M. App. 39; 41 N.M. St. B. Bull. 25.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2016 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
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, Release, Minor, Skiing, Ski Area, High School Team, Parent, Snow Making, Connecticut Skier Safety Act,
BSA (Cub Scout) volunteer was not liable for injuries to cub because cub assumed the risk of his injuries. The BSA & Council were not liable because volunteer was not an agent.
Posted: November 14, 2016 Filed under: Assumption of the Risk, Minors, Youth, Children, Ohio | Tags: Boy Scouts, Boy Scouts of America, BSA, Cub Scout, Den Leader, Ice skating, Scouting Leave a commentA volunteer is not an employee or under the control of the sponsoring organization or BSA councils. Additionally, the plaintiff was injured due to an inherent risk of the sport and therefore the defendants owed him no duty because of the doctrine of primary assumption of risk.
State: Ohio, Court of Appeals of Ohio, Tenth Appellate District, Franklin County
Plaintiff: Lynn and Rick Santho, on behalf of their son, Jamie Santho
Defendant: Boy Scouts of America, Simon Kenton Council, Prince of Peace Lutheran Church, and the Chiller Ice Rink
Plaintiff Claims: negligence, reckless/intentional conduct, respondeat superior, and loss of consortium
Defendant Defenses: Assumption of the Risk, No Duty
Holding: For the defendant
Year: 2006
A Cub Scout & his family went on a Cub Scout event at a skating rink. The Defendant volunteer of the Cub Scout Pack was a contractor for the skating rink, but not working at the time. She was a Den Mother in the Cub Pack.
The plaintiff played hockey. On the night in question, the plaintiff was racing with his friends, and he crashed into the boards suffering a concussion. The Defendant Ice Rink had rules that prohibited racing.
The plaintiff sued the Ice Rink, the Volunteer, the BSA Council and the Chartered Organization, a church.
The defendants filed various motions for summary judgment, but not all. A trial was held and at close of arguments, the court granted the defendant volunteer a directed verdict.
A directed verdict is one that after all the evidence has been presented at trial, the plaintiff has failed to prove their case, and the court directs a verdict for the defendant.
Motions for summary judgment and for directed verdict address the same issue, albeit at different times during the process of litigation. Whether in summary judgment proceedings or during trial, the ultimate issue under either Civ.R. 56 or 50 is whether the evidence is sufficient to present an issue for determination by the trier of fact. Summary judgment raises this question prior to trial; directed verdict raises the question during trial. A court does not consider the weight of the evidence or credibility of the witnesses in ruling on either a motion for summary judgment under Civ.R. 56, or in ruling on a motion for directed verdict under Civ.R. 50. The question is whether there is sufficient evidence to create a genuine issue for a jury to decide.
The plaintiff appealed the directed verdict and various motions for summary judgment that were granted.
Analysis: making sense of the law based on these facts.
The appellate court started by reviewing the motions for summary judgment based on primary assumption of the risk. In Ohio, primary assumption of risk is a defense to claims for injuries from recreational activities.
Under the doctrine of primary assumption of the risk, an individual injured in the course of a recreational activity is presumed to have assumed the ordinary risks of that activity unless it can be shown that another actor acted recklessly or intentionally in causing the injury. The doctrine serves to remove liability for negligence under these circumstances.
Proof of primary assumption of the risk is a three-part test.
The test requires that: (1) the danger is ordinary to the game; (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.
The court found that it was foreseeable that anytime a person was ice skating or stepping on ice that falls or coming into contact with barriers was real.
There is no question that Jamie was participating in a recreational activity at the time he was injured. Falling is an ordinary danger of ice-skating. Colliding with the perimeter boards is an ordinary danger of ice rink skating. It was during the course of ice-skating and participating in the relay race that Jamie was injured.
In reviewing the facts of the defense presented and the arguments made supporting the doctrine of primary assumption of the risk, the age of the plaintiff as well as the knowledge of the plaintiff are not factors. Meaning in primary assumption of the risk there is no requirement to prove the plaintiff knew in advance of the risks they may encounter in the activity.
The appellant’s age and ability to appreciate the danger involved is immaterial to the doctrine of primary assumption of the risk. Only the conduct of defendant is relevant to recovery.
If the court finds that the doctrine of primary assumption of the risk has been found, then there is not negligence. That is because the first requirement to prove negligence, a duty, does not exist. If the recreational activity has risks, the plaintiff assumes those risks; consequently, there is no duty to protect the plaintiff from the risks on the part of the defendant.
However, a recreation provider ordinarily owes no duty to a participant or spectator of an active sport to eliminate the risks inherent in the sport. Here, Bennett organized the fun skate for Pack 210, as she had on several previous occasions. That was her main project for the pack. Therefore, Bennett qualifies as a recreation provider.
The next issue was whether the volunteer acted recklessly. In Ohio, recklessness is defined as:
The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
Violating a rule or a statute is not enough to create a recklessness claim. Recklessness is an intentional act in creating a higher risk resulting in serious harm.
Furthermore, the Restatement notes that simply violating a statute or rule is not enough to constitute a reckless disregard for safety. The violation of the rule must (1) be intentional; and (2) be recognized as resulting in a significantly higher risk that serious harm will occur. A plaintiff cannot recover from any injuries that stemmed from “conduct that is a foreseeable, customary part” of the activity in which the plaintiff was injured.
Because the defendant volunteer did not increase the risk of harm by organizing the event or the race that injured the plaintiff, the defendant was not reckless. Nor did not require the plaintiff to wear a helmet constitute recklessness.
Appellants further argue that Bennett was reckless in not requiring Jamie to wear a helmet. No evidence was submitted to support this claim. Jamie’s father testified that he allowed his son to participate in the recreational skate without a helmet. Other testimony presented at trial showed that no fun skate participants were wearing helmets and that helmets are typically worn only while playing hockey. Finally, there was evidence that requiring helmets is not an industry standard.
The remaining defendants were part of the case because the plaintiff argued they were liable based on vicarious liability. There was no evidence that the defendant was an agent because they had no control over the volunteer defendant.
In contrast, there is no evidence to suggest that Bennett was acting as the agent of the BSA, SKC or POPLC. Bennett organized the family fun skate outside the framework of the BSA organization. The fun skate was held at a facility completely independent of the BSA. There is no evidence that the BSA, SKC or POPLC were aware of or had any control over the conduct of either Bennett or the fun skate. There is no evidence that Bennett acted as an agent of the Boy Scouts or any of the other organizations.
The ice rink was also not liable for the defendant based on the theory of respondeat superior. Respondeat superior states an employer is liable for the acts of its employee. However, at the time of the accident, the defendant ice rink was not paying or employing the defendant volunteer.
At the time of the fun skate, Bennett was not being paid by the Chiller. She was not acting as a rink guard. According to the evidence presented by the trial court, rink guards wore distinctive clothing that identified them in that capacity. There is no evidence that Bennett was acting as, or held herself out as a rink guard for the Chiller. Instead, the evidence supports only that Bennett was acting as a den mother of Pack 210 and organized the fun skate for Pack 210. She was there as a volunteer for Pack 210 and as a parent. Therefore, the trial court did not err in finding that there was insufficient evidence to show that Bennett was an agent of the Chiller and acting on behalf of the Chiller at the time Jamie was injured.
Because the volunteer defendant was found not to be reckless, the remaining defendants were not liable based on claims of vicarious liability.
So Now What?
The outcome of this case was first based upon an understanding of the relationship between a volunteer, the chartering organization, the BSA Council and the Boy Scouts of America by the appellate court. It is always important for the court to understand the legal relationship between the parties.
Volunteers are under the supervision and control, if any, of the chartering organization. The National Council of the Boy Scouts of America grants to the chartering organization the right to use its program. That grant is through, he local council who approves the chartering organization. Neither the National Council nor the local council have any real control over the volunteers the chartering organization approves.
Again primary assumption of the risk prevented the claims of the plaintiff because the plaintiff was participating in a sport or recreational activity and the injury the plaintiff suffered was an inherent risk of the sport or recreational activity.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2016 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
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, BSA, Boy Scouts, Boy Scouts of America, Cub Scout, Scouting, Ice Skating, Den Leader,
Elliott, v. Carter, 2016 Va. LEXIS 151
Posted: November 11, 2016 Filed under: Camping, Legal Case, Minors, Youth, Children, Virginia | Tags: Boy Scouts of America, BSA, Gross negligence, Heart of Virginia Council, Rappahannock River, Senior Patrol Leader, SPL, VA, Virginia Leave a commentChancy M. Elliott, Administrator of the Estate of Caleb Mckinley Smith, Deceased v. Trevor Carter
Record No. 160224
SUPREME COURT OF VIRGINIA
October 27, 2016, Decided
PRIOR HISTORY: [*1] FROM THE CIRCUIT COURT OF RICHMOND COUNTY. Harry T. Taliaferro, III, Judge.
Elliott v. Carter, 2016 Va. LEXIS 49 (Va., Apr. 12, 2016)
DISPOSITION: Affirmed.
COUNSEL: David R. Simonsen, Jr. (Keith B. Marcus; ParisBlank, on briefs), for appellant.
W.F. Drewry Gallalee (Harold E. Johnson; Williams Mullen, on brief), for appellee.
JUDGES: OPINION BY JUSTICE S. BERNARD GOODWYN. JUSTICE McCULLOUGH, with whom JUSTICE MIMS joins, dissenting.
OPINION BY: S. BERNARD GOODWYN
OPINION
PRESENT: All the Justices.
OPINION BY JUSTICE S. BERNARD GOODWYN
In this appeal, we consider the evidence required to submit a question of gross negligence to a jury.
Background
This matter arises from a wrongful death suit brought by Chancy M. Elliott (Elliott) on behalf of the estate of Caleb McKinley Smith (Caleb), alleging gross negligence on the part of Trevor Carter (Carter), the peer leader of Caleb’s Boy Scout troop, after Caleb drowned on a Scout camping trip. The material facts are not in dispute.
On June 25, 2011, Caleb was a 13-year-old Boy Scout on an overnight camping trip with his troop along the Rappahannock River near Sharps, Virginia. Carter, then 16 years old, was the Senior Patrol Leader, the troop’s peer leader. Caleb had been taking lessons to learn how to swim–he had had one from Carter that morning–but he could [*2] not yet swim.
At about 11:00 a.m., Carter led Caleb and two other Boy Scouts into the river along a partially submerged sandbar. One of the other two Scouts could swim (Scott), and the other could not (Elijah).
When they were approximately 150 yards into the river, Carter and Scott decided to swim back to shore. Carter told Caleb and Elijah to walk back to shore the way they had come, along the sandbar. As Caleb and Elijah walked back to shore along the sandbar, they both fell into deeper water. Caleb yelled to Carter for help and Carter attempted to swim back and rescue him. Although Elijah was rescued, neither Carter nor three adult Scout leaders, who attempted to assist, were able to save Caleb.
Elliott filed a wrongful death action in the Circuit Court of Richmond County against Carter, four adult Scout leaders, the Boy Scouts of America, and the affiliated Heart of Virginia Council, Inc. (collectively, Defendants), alleging that they had failed to adequately supervise Caleb. The court granted the Defendants’ demurrer asserting charitable immunity.
Elliott amended her complaint to allege both gross and willful and wanton negligence by Carter and gross negligence by the four adult Scout [*3] leaders, and demanded a jury trial.* Defendants filed a motion for summary judgment arguing that, based upon undisputed material facts, there was no gross negligence because there was no complete lack of care alleged and the danger of drowning was open and obvious. Defendants relied upon Elliott’s responses to requests for admission and allegations in the amended complaint in establishing the undisputed material facts.
* Elliott non-suited the actions against the Boy Scouts of America and the Heart of Virginia Council, Inc.
Following a hearing and supplemental briefing, the court granted the motion for summary judgment as to all Defendants. It found that, while the undisputed material facts would be sufficient to submit the question regarding a claim of simple negligence to a jury, the facts did not support a claim for gross negligence, because in Virginia, “there is not gross negligence as a matter of law where there is even the slightest bit of care regardless of how insufficient or ineffective it may have been,” and there was evidence that Carter did try to save Caleb.
Elliott appeals the ruling of the circuit court only as to Carter. On appeal, she argues that the circuit court erred [*4] in granting summary judgment and in concluding that, as a matter of law, a jury could not find Carter’s actions constituted gross negligence.
Analysis
[HN1] “In an appeal from a circuit court’s decision to grant or deny summary judgment, this Court reviews the application of law to undisputed facts de novo.” St. Joe Co. v. Norfolk Redev’t & Hous. Auth., 283 Va. 403, 407, 722 S.E.2d 622, 625 (2012).
[HN2] Gross negligence is “a degree of negligence showing indifference to another and an utter disregard of prudence that amounts to a complete neglect of the safety of such other person.” Cowan v. Hospice Support Care, Inc., 268 Va. 482, 487, 603 S.E.2d 916, 918 (2004).
It is a heedless and palpable violation of legal duty respecting the rights of others which amounts to the absence of slight diligence, or the want of even scant care. Several acts of negligence which separately may not amount to gross negligence, when combined may have a cumulative effect showing a form of reckless or total disregard for another’s safety. Deliberate conduct is important evidence on the question of gross negligence.
Chapman v. City of Virginia Beach, 252 Va. 186, 190, 475 S.E.2d 798, 800-01 (1996) (citations and internal quotation marks omitted). [HN3] Gross negligence “requires a degree of negligence that would shock fair-minded persons, although demonstrating something less than willful recklessness.” Cowan, 268 Va. at 487, 603 S.E.2d at 918; see also Thomas v. Snow, 162 Va. 654, 661, 174 S.E. 837, 839 (1934) (“Ordinary and gross negligence differ in degree of inattention”; [*5] while “[g]ross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence,” “it is something less than . . . willful, wanton, and reckless conduct.”).
[HN4] “Ordinarily, the question whether gross negligence has been established is a matter of fact to be decided by a jury. Nevertheless, when persons of reasonable minds could not differ upon the conclusion that such negligence has not been established, it is the court’s duty to so rule.” Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691, 4 Va. Law Rep. 1220 (1987). Because “the standard for gross negligence [in Virginia] is one of indifference, not inadequacy,” a claim for gross negligence must fail as a matter of law when the evidence shows that the defendants exercised some degree of care. Kuykendall v. Young Life, 261 Fed. Appx. 480, 491 (4th Cir. 2008) (relying on Frazier, 234 Va. at 392, 362 S.E.2d at 690-91, Chapman, 252 Va. at 190, 475 S.E.2d at 801, and Cowan, 268 Va. at 486-87, 603 S.E.2d at 918 to interpret Virginia law); see, e.g., Colby v. Boyden, 241 Va. 125, 133, 400 S.E.2d 184, 189, 7 Va. Law Rep. 1368 (1991) (affirming the circuit court’s ruling that the plaintiff failed to establish a prima facie case of gross negligence when the evidence showed that the defendant “‘did exercise some degree of diligence and care’ and, therefore, as a matter of law, his acts could not show ‘utter disregard of prudence amounting to complete neglect of the safety of another'”).
Here, even viewing the evidence in the [*6] light most favorable to Elliott, the non-moving party, as required in considering a motion for summary judgment, Commercial Business Systems v. Bellsouth Services, 249 Va. 39, 41-42, 453 S.E.2d 261, 264 (1995), the undisputed material facts support the conclusion that Carter exercised some degree of care in supervising Caleb. Therefore, his conduct did not constitute gross negligence.
First, it is not alleged that Caleb had any difficulty walking out along the sandbar with Carter. Second, there is no allegation that Carter was aware of any hidden danger posed by the sandbar, the river or its current. Third, Carter instructed Caleb to walk back to shore along the same route he had taken out into the river, and there was no evidence that conditions changed such that doing so would have been different or more dangerous than initially walking out, which was done without difficulty. Finally, Carter tried to swim back and assist Caleb once Caleb slipped off the sandbar, which is indicative that Carter was close enough to attempt to render assistance when Caleb fell into the water, and that Carter did attempt to render such assistance. Thus, although Carter’s efforts may have been inadequate or ineffectual, they were not so insufficient as to constitute the indifference and utter disregard [*7] of prudence that would amount to a complete neglect for Caleb’s safety, which is required to establish gross negligence.
Because a claim of gross negligence must fail as a matter of law when there is evidence that the defendant exercised some degree of diligence and care, the circuit court did not err in finding that no reasonable jurist could find that Carter did nothing at all for Caleb’s care. As such, there was no question for the jury, and the circuit court properly granted Carter’s motion for summary judgment.
Accordingly, the judgment of the circuit court will be affirmed.
Affirmed.
DISSENT BY: McCULLOUGH
DISSENT
JUSTICE McCULLOUGH, with whom JUSTICE MIMS joins, dissenting.
Ordinarily, whether gross negligence has been established is a matter of fact to be decided by a jury. Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691, 4 Va. Law Rep. 1220 (1987). Of course, when “persons of reasonable minds could not differ upon the conclusion that such negligence has not been established, it is the court’s duty to so rule.” Id. In my view, the facts presented in this tragic case were sufficient to present a jury question. Accordingly, I respectfully dissent.
Here, Caleb could not swim, a fact that was known to the defendants. He did not walk out on his own into the river. Rather, he was [*8] led, without a life jacket or other safety equipment, over a partially submerged sandbar far into the river. The complaint alleges that “the Rappahannock River . . . is a major river with a strong current.” Caleb was then abandoned on a sandbar in the middle of the river and told to walk back. A partially submerged sandbar in the middle of a river with a strong current is a very dangerous place to be, particularly for a non-swimmer without a life vest. Ever-shifting sandbars, obviously, are not stable structures. They can easily dissipate. A major river with strong currents like the Rappahannock presents a different situation than a tranquil pond. Carter then swam away too far to effectuate a rescue should Caleb slip and fall into the river. In my view, “reasonable persons could differ upon whether the cumulative effect of these circumstances constitutes a form of recklessness or a total disregard of all precautions, an absence of diligence, or lack of even slight care.” Chapman v. City of Virginia Beach, 252 Va. 186, 191, 475 S.E.2d 798, 801 (1996).
I would also find that the purported acts of slight care, separated in time and place from the gross negligence at issue, do not take the issue away from the jury. The only two acts of slight care the defendants identify [*9] are the fact that Caleb was given a swimming lesson before he drowned — but there is no indication that Caleb could swim — and that Carter, after swimming too far away to make any rescue effectual, tried to swim back to save Caleb after he had fallen into the river. Significantly, Carter led Caleb into danger in the first place. When the defendant has led the plaintiff into danger, an ineffectual and doomed to fail rescue attempt does not in my judgment take away from the jury the question of gross negligence. Accordingly, I would reverse and remand the case for a trial by jury.
Virgin Islands court upholds release to stop claims by a minor against a program providing benefits for youth
Posted: October 31, 2016 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Custodial Release, Parental Rights, Release, Summer Work Program, US Virgin Islands, Virgin Islands, Youth Work Program Leave a commentThe courts’ analysis concludes if a parent has the right to sue for a minor, because of injuries the minor receives, the parent has the right to sign a release for a minor and give up that right to sue.
State: Virgin Islands, Superior Court of the Virgin Islands, Division of St. Croix
Plaintiff: Brandon Walker
Defendant: Virgin Islands Waste Management Authority, Government of the Virgin Islands, Department of Human Services, Latrell Jacobs and Kareem Casimir, Defendants
Plaintiff Claims:
Defendant Defenses:
Holding: For the Defendant
Year: 2015
The actual facts of the case are not in the opinion, including what the defendant’s program was or the benefits it provided as well as the injury suffered by the minor. It is also unclear if the defendant is a non-profit. However, reviewing the defendant’s website it is clear it is a for-profit business in conjunction or partnership with the government is running a program to employee youth during the summer.
The program was called the YES program. The program hires youth and counselors for the summer to provide employment for them. The program is tax payor funded.
The plaintiff was a minor who entered into a program offered by the defendant. For the plaintiff to participate in the program, the plaintiff’s mother had to sign a release. While in the program, the minor suffered an injury, and the plaintiff, through his mother, sued. The defendant filed a motion for summary judgement, which was granted based on the release signed by the mother.
This appeal followed.
Analysis: making sense of the law based on these facts.
The court first looked at the release to determine if it was valid and supported by Virgin Island law. A release pursuant to the Virgin Islands must first be clear and unequivocal (meaning not ambiguous).
First, the Court examines the language of the Release Agreement pursuant to basic contract law to determine if it is “clear and unequivocal.” A contract is ambiguous “if it is reasonably susceptible of different constructions and capable of being understood in more than one sense.”
Virgin Island law does not allow a release to shield a defendant against gross negligence claims. This was specifically set forth in the release.
The Release Agreement is less than one page long and contains the following relevant language: “In consideration for being permitted to participate in the Youth Environmental Summer Program (YES) the undersigned hereby releases and holds harmless the Virgin Islands Waste Management authority … as well as their employees, agents … FROM ANY AND ALL CLAIMS, DAMAGES (INCLUDING PERSONAL INJURY, PROPERTY OR CONSEQUENTIAL DAMAGES), LIABILITY AND/OR CAUSES OF ACTION, whether resulting from negligence,….
In Booth v. Bowen, the District Court upheld the traditional standard that any portion of a release barring claims of gross negligence is unenforceable, but did not address acts of ordinary negligence.
After reviewing the language of the release the court found it was a valid release under Virgin Island law.
On the basis of the record, the Court finds that the Release Agreement contains broad and unambiguous language that specifically, clearly and unequivocally releases VIWMA from any liability for claims resulting from negligence related to its Youth Environmental Summer Program.
The court then looked at the public policy considerations to determine if a parent or as identified in this case, custodial parent could sign away a minor’s right to sue. Because there was no prior decision concerning this issue in the Virgin Islands, the court undertook a “Banks analysis” to determine the correct common law to apply. This analysis was also used to support the court’s creation of common law. The analysis considered the following issues.
The Court considers three factors in deciding what common law rule to adopt as the applicable standard for an issue in dispute: “(1) whether any Virgin Islands courts have previously adopted a particular rule; (2) the position taken by a majority of courts from other jurisdictions; and (3) most importantly, which approach represents the soundest rule for the Virgin Islands.”
The court then looked at other releases in the Virgin Islands. The release the court found was an admiralty case which had a two-part test to determine if the release was valid and enforceable.
In an admiralty personal injury claim, the District Court upheld the rule that “to be valid, the release must: (1) clearly and unequivocally indicate the intentions of the parties, and (2) not be inflicted by a monopoly, or a party with excessive bargaining power.”
The court then looked at how other jurisdictions had ruled on releases. The court reviewed cases in New Jersey, Ohio, Florida and Michigan to determine how and why those courts had ruled the way those courts ruled. (See States that allow a parent to sign away a minor’s right to sue.)
The court found in its review that courts upheld releases when a non-profit institution was the defendant.
A survey of how other jurisdictions approach the public policy considerations involving a parental guardian’s waiver of her minor child’s future right to bring an action for ordinary negligence suggests that a majority of courts uphold such waivers in the limited circumstance when a waiver protects a non-profit institution from lawsuits based on ordinary negligence.
After making this determination the court then had to apply the law in the way best for the Virgin Islands.
Finally, and most importantly, this Court must examine which approach represents the soundest rule for the Virgin Islands. In this regard, the public policy considerations of the noted jurisdictions are persuasive. The Court notes that there are limited opportunities in the Virgin Islands for elementary and secondary school children to participate in summer and afterschool activities. Many parents do not have the financial resources to take advantage of programs and activities requiring payment of fees or tuition of participants.
If the program were to fail, the burden of employing youth for the summer would shift back to the state.
Because the risk of exposure to liability carries with it the real possibility that VIWMA may be unable or unwilling to provide YES Program tuition-free to its participants, the Court finds that the public interest is best served by upholding the Release Agreement according to its terms.
The court then analyzed the relationship of the parent to the child, from a legal perspective, and made a statement I’ve never seen in a decision before. However, the decision is brilliant in its simplicity and argument that a parent can sign away a minor’s right to sue.
Custodial parents may, as did Alesia Jerrels in this case, lawfully prosecute personal injury claims on behalf of their minor children who have been harmed by the tortious act of third parties, as part of their obligation to provide support. The same provisions that allow a custodial parent to sue on behalf of a minor child conversely permit the parent to enter into a contractual agreement on behalf of the child to agree to forgo the right to sue in exchange for the right to participate in a not-for-profit educational program.
If the parent has the right to sue on behalf of a child, then the parent should have the right to sign away a child’s right to sue.
The court then concluded its analysis with a review of how it found the release was valid.
The release from liability provided in this case in exchange for the right to participate in the YES Program sufficiently protected Plaintiff’s interests from overreaching on the part of VIWMA. To be effective, the Release Agreement must be clear and unambiguous. It may only shield VIWMA from ordinary negligence, but not from gross negligence or the reckless conduct of VIWMA, its agents or employees. The Release Agreement in favor of VIWMA is upheld only because and to the extent that VIWMA acts as a non-profit providing a program of benefit to the community.
Then the court made the same analysis of the value of upholding the release signed by a parent under the laws of the Virgin Islands. Meaning the first analysis was the overall validity of the release, and the second was to the specific issue of the parent signing away the minor’s right to sue.
In balancing the benefits and potential detriments to upholding the Release Agreement, the Court concludes that the soundest rule for the Virgin Islands, and the common law rule it adopts follows the majority of other jurisdictions to uphold the Release Agreement signed by Plaintiff’s custodial parental guardian during his minority, which waives his claims for ordinary negligence against VIWMA, operating as a not-for-profit organization providing a service benefiting the community of the Virgin Islands.
The court upheld the release and dismissed the claims relating to negligence of the plaintiff.
So Now What?
Here is a decision upholding the right of a parent to sue and to release a possible lawsuit from a US territory. The analysis was very different from how courts in other states would have written their decision, but the results were the same.
If, as a parent, you can sue on behalf of your child, then as a parent, you can give up that right to sue on behalf of your child and your child’s right to sue.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2016 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
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, Virgin Islands, US Virgin Islands, Release, Parental Rights, Custodial Release, Youth Work Program, Summer Work Program,
Santho et al., v. Boy Scouts of America et al., 168 Ohio App. 3d 27; 2006-Ohio-3656; 857 N.E.2d 1255; 2006 Ohio App. LEXIS 3606
Posted: October 24, 2016 Filed under: Assumption of the Risk, Legal Case, Minors, Youth, Children, Ohio | Tags: Boy Scouts, Boy Scouts of America, BSA, Cub Scout, Den Leader, Ice skating, Scouting Leave a commentSantho et al., v. Boy Scouts of America et al., 168 Ohio App. 3d 27; 2006-Ohio-3656; 857 N.E.2d 1255; 2006 Ohio App. LEXIS 3606
Lynn T. Santho et al., Plaintiffs-Appellants, v. Boy Scouts of America et al., Defendants-Appellees.
No. 05AP-341
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY
168 Ohio App. 3d 27; 2006-Ohio-3656; 857 N.E.2d 1255; 2006 Ohio App. LEXIS 3606
July 18, 2006, Rendered
COUNSEL: Kemp, Schaeffer, Rowe and Lardiere Co., L.P.A., Steven D. Rowe and Darren A. McNair, for appellants.
Vorys, Sater, Seymour and Pease LLP, and Theodore P. Mattis, for appellees Boy Scouts of America, Simon Kenton Council, and Prince of Peace Lutheran Church.
Reminger & Reminger, Paul Michael LaFayette and Michael V. Valentine, for appellee Central Ohio Ice Rink, Inc./Chiller Ice Rink.
Bale, Begin & Associates, Ltd., David G. Bale and Christopher R. Cave, for appellee Margaret Bennett.
JUDGES: TRAVIS, J. BROWN and SADLER, JJ., concur.
OPINION BY: TRAVIS
OPINION
[*31] [***1258] (REGULAR CALENDAR)
TRAVIS, J.
[**P1] Lynn and Rick Santho, on behalf of their son, Jamie Santho (“appellants”), appeal from summary judgment entered by the Franklin County Court of Common Pleas on July 8, 2004 in favor of Boy Scouts of America, Simon Kenton Council, Prince of Peace Lutheran Church, and the Chiller Ice Rink (“Chiller”), and a directed verdict entered by the same court on March 2, 2005 in favor of Margaret Bennett.
[**P2] Boy Scouts of America (“BSA”) issued a charter to the Simon Kenton Council (“SKC”), which in turn issued a charter to the Prince of Peace Lutheran Church (“POPLC”) for the purpose of sponsoring Troop 210. The pack committee, which was made up of parents and organized by POPLC, supervised all [*32] everyday operations and the planning of activities of Troop 210. Jamie Santho (“Jamie”), age nine, was a Cub Scout in Troop 210. His Cub Scout Master was Fred Bigney (“Bigney”). Margaret Bennett (“Bennett”) was a den leader in the troop.
[**P3] In addition to her role as a den leader, Bennett also had significant ice-skating experience. Prior to her employment with the Chiller, Bennett was employed by the Ice Skating Institute of America as program and educational coordinator. Following that, she taught ice-skating at Ohio State University. At the time of the incident giving rise to this action, Bennett was a salaried employee of the Chiller, an ice rink located in Dublin, Ohio, and run by Central Ohio Ice Rinks, Inc. At the Chiller, Bennett served as the Skating School Director. Her duties included organizing class schedules and training instructors. On occasion, she also taught hourly lessons for a fee.
[**P4] On November 13, 1994, Bennett organized a family fun skate at the Chiller for the members and parents of Troop 210. She filled out the “Agreement for Ice Rental” and provided information and fliers to the members at their Pack meeting.
[**P5] Jamie Santho, his father, and his siblings attended the fun skate. Jamie was an avid skater, participated in hockey leagues, and took hockey lessons at the Chiller. Jamie’s father was a volunteer hockey coach at the Chiller. On the night of the event, Jamie’s father permitted Jamie to skate without his hockey helmet. Shortly after arriving, Jamie was racing with his friend, Colin Innes, from board to board. When Jamie looked over his shoulder to see where Colin was, he crashed into the boards and suffered a skull fracture and concussion. Appellants allege that Bennett had organized the relay race against the rules of the Chiller.
[**P6] Appellants filed suit against BSA, POPLC, SKC, the Chiller, and Bennett in 1997. Appellants dismissed their suit pursuant to Civ.R. 41 and re-filed on October 1, 2002, seeking recovery for claims of negligence, reckless/intentional conduct, respondeat superior, and loss of consortium. The trial court granted summary judgment to all appellees on the claim for negligence, under the doctrine of primary assumption of the risk. The trial court also granted summary judgment to BSA, SKC and POPLC for the claim of recklessness on the grounds that Bennett was not an agent of the organizations, and therefore, no liability could be imputed. [***1259] The Chiller also was granted summary judgment on plaintiffs’ recklessness claim. The trial court denied Bennett summary judgment on the recklessness claim and the issue proceeded to trial.
[**P7] The matter was tried on February 28, March 1, and March 2, 2005. At the close of arguments on March 2, the trial court granted Bennett’s motion for a directed verdict.
[**P8] Appellants timely appealed and assert four assignments of error:
[*33] I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING DEFENDANT MARGARET BENNETT A DIRECTED VERDICT AFTER THE CLOSE OF PLAINTIFFS’ CASE. PLAINTIFFS PRESENTED SUFFICIENT EVIDENCE TO PERMIT THE JURY TO CONSIDER THE ISSUE OF WHETHER DEFENDANT BENNETT’S CONDUCT WAS RECKLESS.
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING SUMMARY JUDGMENT ON PLAINTIFFS’ RECKLESSNESS CLAIMS AGAINST DEFENDANTS BOY SCOUTS OF AMERICA, SIMON KENTON COUNCIL, PRINCE OF PEACE LUTHERAN CHURCH AND CENTRAL OHIO ICE RINKS, INC./THE CHILLER BECAUSE IT ERRONEOUSLY HELD THAT MARGARET BENNETT WAS NOT AN AGENT OF ANY OF THE AFOREMENTIONED DEFENDANTS, BUT ASSUMING ARGUENDO SHE WAS, THE COURT ERRONEOUSLY HELD FURTHER THAT PRINCIPALS ARE NOT VICARIOUSLY LIABILE [sic] FOR THE RECKLESS ACTS OF ITS AGENTS.
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING SUMMARY JUDGMENT ON PLAINTIFF’S [sic] NEGLIGENCE CLAIMS AGAINST DEFENDANTS BENNETT, BOY SCOUTS OF AMERICA, SIMON KENTON COUNCIL, PRINCE OF PEACE LUTHERAN CHURCH, AND CENTRAL OHIO ICE RINKS, INC./THE CHILLER BECAUSE THE COURT ERRONEOUSLY RELIED ON GENTRY V. CRAYCRAFT (2004), 101 OHIO ST. 3D 141, 2004 OHIO 379, 802 N.E.2D 1116, AND MISAPPLIED THE DOCTRINE OF PRIMARY ASSUMPTION OF THE RISK TO THE FACTS IN THIS CASE.
IV. GENTRY V. CRAYCRAFT (2004) 101 OHIO ST.3D 141 [sic] IS UNCONSTITUTIONAL BECAUSE IT DEPRIVES CITIZENS OF THE STATE OF OHIO, AND IN THIS CASE PLAINTIFFS, RIGHTS UNDER ARTICLE I, SECTIONS 5 AND 16 OF THE OHIO CONSTITUTION.
[**P9] [HN1] Appellate review of motions for summary judgment is de novo. [HN2] The moving party bears the burden of proving that: (1) no genuine issues of material fact exist; (2) the moving party is entitled to summary judgment as a matter of law; and (3) reasonable minds can come to only one conclusion, which is adverse to the nonmoving party. Civ.R. 56. Where the evidence supports a motion for summary judgment, the nonmoving party must present specific facts beyond the pleadings to show that a genuine issue of material fact exists and therefore, the moving party is not entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 1996 Ohio 107, 662 N.E.2d 264.
[**P10] [HN3] Appellate review of directed verdicts is also de novo. [HN4] Under Civ.R. 50(A)(1), a motion for directed verdict may be made upon the opening statement of the opponent, at the close of opponent’s evidence, or at the close of all evidence. If, after construing the evidence in a light most favorable to the nonmoving party, the trial court finds that reasonable minds can come to but one conclusion, which is adverse to the nonmoving party, the trial court may direct a verdict in favor of the moving party. Civ.R. 50(A)(4). When considering the evidence, the trial court may not evaluate the weight of the evidence or the credibility of the witnesses. Only the relevancy of the testimony may be [*34] considered. Gibbs v. Village of Girard (1913), 88 Ohio St. 34, 102 N.E. 299, 11 Ohio L. Rep. 39. A directed verdict presents a question of law, not one of fact. O’Day v. Webb (1972), 29 Ohio St.2d 215, 280 N.E.2d 896. Therefore, the sole determination [***1260] for the court is whether the evidence presented is sufficient to present the case to the jury. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 430 N.E.2d 935.
[**P11] Assignments of error one and three contest the trial court’s determination on summary judgment that the doctrine of primary assumption of the risk applied to the facts of this case and its subsequent grant of a directed verdict in Bennett’s favor on the sole remaining issue of recklessness, an exception to primary assumption of the risk. Due to the interrelated nature of these two issues, we consider them first.
[**P12] In their third assignment of error, appellants object to the trial court’s application of primary assumption of the risk to this case. [HN5] Under the doctrine of primary assumption of the risk, an individual injured in the course of a recreational activity is presumed to have assumed the ordinary risks of that activity unless it can be shown that another actor acted recklessly or intentionally in causing the injury. Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 559 N.E.2d 699; Gentry v. Craycraft, 101 Ohio St.3d 141, 2004 Ohio 379, 802 N.E.2d 1116. The doctrine serves to remove liability for negligence under these circumstances. The trial court applied the three-part test for primary assumption of the risk in sporting events set forth in Gallagher v. Cleveland Browns Football Co., Inc. (1994), 93 Ohio App.3d 449, 638 N.E.2d 1082, reversed on other grounds, 74 Ohio St.3d 427, 1996 Ohio 320, 659 N.E.2d 1232. The test requires that: (1) the danger is ordinary to the game; (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.
[**P13] It is foreseeable that any time an individual, regardless of skill, steps onto ice, they risk falling or coming into contact with the barriers that set the perimeter of the skating surface. It is foreseeable that anytime an individual falls on ice, or strikes the perimeter boards, they risk injury. Therefore, every time Jamie Santho went onto the ice, either to play hockey or participate in any other activity, he assumed the risk of falling or running into the perimeter boards and injuring himself. There is no question that Jamie was participating in a recreational activity at the time he was injured. Falling is an ordinary danger of ice-skating. Colliding with the perimeter boards is an ordinary danger of ice rink skating. It was during the course of ice-skating and participating in the relay race that Jamie was injured. The appellant’s [HN6] age and ability to appreciate the danger involved is immaterial to the doctrine of primary assumption of the risk. Only the conduct of defendant is relevant to recovery. Gentry, supra.
[**P14] [*35] Appellants further argue that the trial court erred in applying the doctrine of primary assumption of the risk to the facts herein because Bennett was not a participant in the relay race. 1 They argue that case law has only applied the doctrine in circumstances where the [***1261] defendant is another participant. However, [HN7] a recreation provider ordinarily owes no duty to a participant or spectator of an active sport to eliminate the risks inherent in the sport. Gallagher, supra. Here, Bennett organized the fun skate for Pack 210, as she had on several previous occasions. That was her main project for the pack. Therefore, Bennett qualifies as a recreation provider. Bennett is relieved of liability under the doctrine of primary assumption of the risk even though she was a non-participant in the relay race. Based upon the case law and the facts of this case, we find that the trial court properly applied the doctrine of primary assumption of the risk and properly granted summary judgment in favor of defendants on appellants’ negligence claim. Appellants’ third assignment of error is not well-taken and is overruled.
1 The Santhos’ argue that negligent supervision should apply instead. [HN8] For a non-participant to be found liable in a recreational activity, it must be found that the non-participant either (1) allowed an activity to take place absent any management, or (2) allowed a participant with a known propensity for violence to engage in the activity. Rodriguez v. O.C.C.H.A. (2000), Mahoning App. No. 99 C.A. 30, 2000 Ohio App. LEXIS 4608; Kline v. OID Associates, Inc. (1992), 80 Ohio App.3d 393, 609 N.E.2d 564. Bennett managed the first race and the evidence indicates Richard Pretzloff supervised the second race. Furthermore, none of the participants exhibited violent behavior. Therefore, negligent supervision does not apply in this case.
[**P15] Under the first assignment of error, we must determine whether sufficient evidence was presented at trial to raise a jury question of whether Bennett acted recklessly when she organized the fun skate relay race. Appellants argue that the evidence presented on motion for summary judgment and the evidence presented at trial was substantially the same. Appellants state that if the trial court found a genuine issue of material fact on the issue of recklessness when ruling on the motion for summary judgment, that same evidence was sufficient to present a question for the jury on the same issue at trial. Appellants reason that the trial court could not be correct in both instances.
[**P16] [HN9] Motions for summary judgment and for directed verdict address the same issue, albeit at different times during the process of litigation. Whether in summary judgment proceedings or during trial, the ultimate issue under either Civ.R. 56 or 50 is whether the evidence is sufficient to present an issue for determination by the trier of fact. Summary judgment raises this question prior to trial; directed verdict raises the question during trial. A court does not consider the weight of the evidence or credibility of the witnesses in ruling on either a motion for summary judgment under Civ.R. 56, or in ruling on a motion for directed verdict under Civ.R. 50. Turner v. Turner (1993), 67 Ohio St.3d 337, [*36] 1993 Ohio 176, 617 N.E.2d 1123; Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 423 N.E.2d 467. 2 The question is whether there is sufficient evidence to create a genuine issue for a jury to decide.
2 Appellants point out that, at trial, during discussions of the court and counsel on the question of directing a verdict, the court commented on the credibility of the testimony of a witness and noted reactions of the faces of the jurors during testimony. However, when the comments are viewed in the context of the discussion between court and counsel, we are satisfied that the comments were not a factor in the determination to grant a directed verdict.
[**P17] Where a motion for summary judgment is denied because the evidence demonstrates that a jury issue exists, and that same evidence is later presented at trial, logically, it would appear that the same result should obtain and a motion for directed verdict should be overruled. 3 However, the result of the first assignment of error is not dictated by a pre-trial decision on summary judgment or by whether the same or additional [***1262] evidence was available at trial. Instead, the ultimate issue presented by the first assignment of error is whether the trial court was correct in granting a directed verdict at the close of appellants’ case. As discussed from the evidence presented at trial, we find that reasonable minds could come to but one conclusion upon the evidence and that conclusion is that Bennett did not act recklessly during the fun skate relay race.
3 Compare Dupler v. Mansfield Journal Co., Inc. (1980), 64 Ohio St. 2d 116, at 126, 413 N.E.2d 1187, fn. 8, Brown, J., Concurring. “The same quantum of evidence can require that a motion for summary judgment be denied under Civ.R. 56(C) because there exists ‘a genuine issue as to * * * (a) material fact,’ and that a motion for directed verdict under Civ.R. 50(A)(4) be granted because ‘reasonable minds could come to but one conclusion upon the evidence.’ ”
[**P18] Appellants’ claim that Bennett acted recklessly arises from the relay race itself and what appellants feel were the violation of a posted rule that prohibited racing. Based on the evidence presented in the proceedings for summary judgment, the trial court determined that genuine issues of material fact existed as to whether Bennett was reckless in organizing the relay race and in permitting Jamie to participate without a helmet. 4 The trial court determined that there was a genuine issue of whether Bennett acted recklessly based primarily upon two factors; the sign at the ice rink that prohibited racing and the lack of helmets for the participants.
4 While the evidence on whether Bennett organized the relay race was in conflict, we must construe that evidence in the light most favorable to appellants and therefore assume that Bennett did organize the race.
[**P19] [HN10] Ohio has adopted the definition of recklessness contained in the Restatement of the Law 2d, Torts (1965), Section 500 . Marchetti, 96, at fn. 2: [*37]
The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
Furthermore, the Restatement notes that [HN11] simply violating a statute or rule is not enough to constitute a reckless disregard for safety. The violation of the rule must (1) be intentional; and (2) be recognized as resulting in a significantly higher risk that serious harm will occur. Id. at Section 500(e). A plaintiff cannot recover from any injuries that stemmed from “conduct that is a foreseeable, customary part” of the activity in which the plaintiff was injured. Thompson v. McNeill (1990), 53 Ohio St.3d 102, 104, 559 N.E.2d 705.
[**P20] Turning to the facts of this case, the question presented is whether Bennett was reckless in organizing the relay race in which Jamie was injured. More specifically, did Jaime’s injury stem from conduct-the relay race-that was a foreseeable part of the activity? We have already determined that Jamie assumed the risk of falling or coming into contact with the perimeter boards and injuring himself when he began skating and again when he voluntarily took part in the relay race. To be considered reckless, Bennett’s conduct in organizing the fun skate relay race had to create an unreasonable risk of physical harm to another; a risk substantially greater than that which is necessary to make that conduct negligent.
[**P21] From trial testimony and evidence, we know that there is a sign posted in the Chiller that prohibits racing. Warren Weber, the building supervisor at the time of Jamie’s accident, stated that the “no racing” rule applied to both public and private skating events. However, Weber also testified that the rule was relaxed during private parties. He further stated that even if the private party did not have [***1263] rink guards, “[w]e would never knowingly allow an unsafe condition. I think our employees knew what unsafe and safe were or were not and would not allow an unsafe condition to go on.” (Tr. at 79.) Weber said that if he saw individuals racing from board to board, he would take into account the ability of the skaters in determining whether the activity was safe enough to continue. Weber testified that, at the time of the fun skate, there were other people working at the Chiller, even though they were not working as rink guards for the fun skate. There was no evidence that anyone on duty at the time of the accident thought the activities were unsafe. Indeed, Richard Pretzloff, a Chiller employee and father of one of the Cub Scouts attending the fun skate was present during the relay races. Pretzloff testified that he allowed his own son to participate in the relay race.
[**P22] [*38] Additionally, it is undisputed that Bennett took certain precautions when she initiated the relay race. Bennett organized the activity and divided up the ice because the more skilled skaters were being disruptive and posed a threat of harm to parents and children who were not as proficient at ice-skating. Furthermore, only those of certain skill levels were allowed to participate in the races. Bennett set the rules and supervised the first race. According to her testimony, there was no evidence of dangerous activity. After the first race, she left the immediate area and left Mr. Pretzloff in charge of the second race. Even if events in the second race increased the risk of harm, there is no evidence that Bennett was aware of them, or that she allowed the races to continue despite some increased risk to the participants. In sum, we cannot say that Bennett’s conduct in organizing the relay race was in reckless disregard of the safety of another.
[**P23] Appellants further argue that Bennett was reckless in not requiring Jamie to wear a helmet. No evidence was submitted to support this claim. Jamie’s father testified that he allowed his son to participate in the recreational skate without a helmet. Other testimony presented at trial showed that no fun skate participants were wearing helmets and that helmets are typically worn only while playing hockey. Finally, there was evidence that requiring helmets is not an industry standard.
[**P24] We find that, as a matter of law, the evidence does not support a claim of recklessness regardless of how generously it may be viewed in favor of appellants. Therefore, the trial court did not err in granting a directed verdict for Bennett on the issue of recklessness. Appellants’ first assignment of error is not well-taken and is overruled.
[**P25] Under their second assignment of error, appellants contest the trial court’s determination on summary judgment that BSA, SKC, POPLC, and the Chiller were not vicariously liable for Bennett’s reckless acts because she was not an agent of those organizations. Because we have found as a matter of law that Bennett did not act recklessly, this argument has been rendered moot.
[**P26] Even if the evidence supported a finding that Bennett was reckless, under the facts of this case, BSA, SKC and POPLC were not vicariously liable because the evidence supports the trial court’s determination that Bennett was not an agent of those organizations. Appellants rely on Mayfield v. Boy Scouts of America (1994), 95 Ohio App.3d 655, 643 N.E.2d 565, a case involving injuries to a scout while on a camping trip under the direction of a Boy Scout volunteer. In Mayfield, the campout was at a facility controlled and operated by the Boy Scouts [***1264] and located on land owned by the Boy Scouts. The Boy Scouts required all volunteers who were in charge of campouts to purchase and wear official Boy Scout uniforms, accessories and supplies and to follow Boy Scouts [*39] policies, procedures, rules and regulations. Additionally, in Mayfield, there was evidence that the Boy Scouts retained a degree of direction and control over the volunteer who supervised the campout and Boy Scout insurance policies covered the acts of the volunteer. Finally, in that case, there was evidence that the plaintiffs relied upon the affirmative acts and representations of the Boy Scouts, which led the plaintiffs to believe that the volunteer was acting as an agent of the Boy Scouts.
[**P27] In contrast, there is no evidence to suggest that Bennett was acting as the agent of the BSA, SKC or POPLC. Bennett organized the family fun skate outside the framework of the BSA organization. The fun skate was held at a facility completely independent of the BSA. There is no evidence that the BSA, SKC or POPLC were aware of or had any control over the conduct of either Bennett or the fun skate. There is no evidence that Bennett acted as an agent of the Boy Scouts or any of the other organizations. We find Mayfield to be distinguishable on it facts.
[**P28] Appellants also argue that the Chiller is liable for Bennett’s actions under the doctrine of respondeat superior. Appellants contend that, because Bennett was an employee of the Chiller, the Chiller was liable for her actions committed during the course and scope of her employment with the Chiller. However, at the time of the accident, Bennett was not being paid by the Chiller. [HN12] Actions within the “course of employment” are, by definition:
Events that occur or circumstances that exist as a part of one’s employment; esp., the time during which an employee furthers an employer’s goals through employer-mandated directives.
Black’s Law Dictionary (7 Ed.1999) 356. Bennett’s employment duties as a director of ice-skating at the Chiller consisted of training instructors and scheduling. She also gave private skating lessons. However, all of these activities were directed by the Chiller, by whom she was paid. At the time of the fun skate, Bennett was not being paid by the Chiller. She was not acting as a rink guard. According to the evidence presented by the trial court, rink guards wore distinctive clothing that identified them in that capacity. There is no evidence that Bennett was acting as, or held herself out as a rink guard for the Chiller. Instead, the evidence supports only that Bennett was acting as a den mother of Pack 210 and organized the fun skate for Pack 210. She was there as a volunteer for Pack 210 and as a parent. Therefore, the trial court did not err in finding that there was insufficient evidence to show that Bennett was an agent of the Chiller and acting on behalf of the Chiller at the time Jamie was injured. 5 Appellants’ second assignment of error is not well-taken and is overruled.
5 Weber indicated that anywhere from four to ten people could have been working during the fun skate. The fun skate was not held as an after hours event. If it were, there would be some argument as to whether Bennett was an agent of the Chiller by virtue of being the only employee of the Chiller in the building, aside from Richard Pretzloff. However, this was not the case.
[**P29] [*40] In their fourth assignment of error, appellants contend that Gentry is a violation of Sections 5 and 16, Article I, Ohio Constitution. Appellants assert that, by relying on Gentry, the trial court violated their right [***1265] to trial by jury and a remedy by due course of law. Gentry is a decision of the Supreme Court of Ohio. [HN13] It is not within our authority to declare that a determination of a superior court is invalid.
[**P30] Furthermore, appellants failed to raise this issue at the trial court. Therefore, the issue has been waived for purposes of appeal. “It is a general rule that [HN14] an appellate court will not consider any error which counsel for a party complaining of the trial court’s judgment could have called but did not call to the trial court’s attention at a time when such error could have been avoided or corrected by the trial court.” State v. Childs (1968), 14 Ohio St.2d 56, 61, 236 N.E.2d 545 citing State v. Glaros (1960), 170 Ohio St. 471, 166 N.E.2d 379, paragraph one of syllabus. Appellants’ fourth assignment of error is overruled.
[**P31] Based upon the foregoing, appellants’ four assignments of error are overruled and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BROWN and SADLER, JJ., concur.
Registration is Open for the Colorado Environmental Film Festival
Posted: July 26, 2016 Filed under: Youth Camps, Zip Line | Tags: CEFF, Colorado Environmental Film Festival, Environmental Film Festival, Film Festival Leave a commentDear CEFF friends and filmmakers,
The Colorado Environmental Film Festival (CEFF) is an exciting, inspiring, and energizing event that includes world-class environmental films with representatives from local, national and international organizations. We are thrilled to announce our Call for Entries for our 11th annual CEFF is now OPEN for submission!
CEFF seeks unique and meaningful films that aim to inspire, educate, and call to action. The largest environmental film festival between the coasts, CEFF celebrates our 11th annual festival taking place February 23-25, 2017 in downtown Golden, Colorado. Filmmakers of all abilities and backgrounds are invited to submit their films in the categories of Short Films, Feature Length Films and Youth Films (Submission open to for filmmakers under 19 years of age). True to the spirit of Colorado, this event is supported and attended by people who value the natural world and share a passion for the power and beauty of film.
We welcome and encourage you to submit your films today! Early bird registration ends August 15, 2016 so submit your film early for the best value!
Colorado Environmental Film Festival prefers online entries submitted via Withoutabox.com, which provides cost-saving, paperless submission to film festivals around the world. Deadlines and entry fees:
● Early bird – August 15th, 2016 – Price: Regular $30.00 – Student/Youth/Colorado Filmmaker – $20.00
● Regular – September 15th, 2016 – Price: Regular $40.00 – Student/Youth/Colorado Filmmaker – $25.00
● Late – October 30th, 2016 – Price: Regular $50.00 – Student/Youth/Colorado Filmmaker – $30.00
● Extended – November 15th, 2016 – Price: Regular $60.00 – Student/Youth/Colorado Filmmaker – $45.00
Enter today!
https://www.withoutabox.com/03film/03t_fin/03t_fin_fest_01over.php?festival_id=5513
If you have questions please visit go to our website at www.ceff.net
or drop me a note dave.steinke
About CEFF
CEFF hosts local and national feature length and short films for all ages, thought-provoking dialogue, festival celebrations for both filmmakers and audience members, children’s films, a filmmaker forum, and information from a variety of environmental groups. The festival presents informative and entertaining films that explore interconnected ecological, social, and economic themes. Audiences have the opportunity to be more than passive viewers – they will leave inspired, surprised, motivated, entertained, and transformed.
New York Summer Camp cases are examples of helicopter parenting; I gave you a perfect child, and no injuries shall occur to my child in your care, if one occurs, I will sue.
Posted: July 11, 2016 Filed under: Assumption of the Risk, Camping, Minors, Youth, Children, New York, Youth Camps | Tags: Adequate Supervision, Boy Scouts of America, BSA, Headlamp, negligent supervision, Shower House, Supervision, Youth, YPP, YPT 1 CommentA minor at a Scout camp runs out of a shower house and falls down. The parents sue for his injuries claiming he was not supervised. At the same time, the BSA Youth Protection Training prevented adults in showers with youth. The court in this case realized the absurdity of the plaintiff’s claims and held for the defendants.
State: New York, Supreme Court of New York, New York County
Plaintiff: Davide E. Gomes
Defendant: Northern New Jersey Council, Inc., Boy Scouts of America (Council) and Boy Scout Troop 141 (troop)
Plaintiff Claims: negligent supervision
Defendant Defenses: assumption of the risk, no duty
Holding: for the defendants
Year: 2016
The thirteen-year-old plaintiff was a Boy Scout. He and his troop from New Jersey were at a Scout Camp in the Adirondacks of New York for a canoe trip. While at the camp, the youth walked a few minutes to a bath house. While in the bath house, the plaintiff was fooling around and ran out of the bath house and fell suffering a head injury.
According to plaintiff, the main purpose of the trip to Floodwood was to take a 15-mile canoe trip. On the day of the accident, the scouts and the Troop leaders spent time outside in their campsite within the camp, where “there was a little bit of horsing around,” “a little bit of pushing, playing around,” and all of the scouts were pushing and shoving each other during and after a game of touch football, which the leaders told them to stop. As he walked to the shower house the night of his accident, plaintiff wore a functioning headlamp; the area around the shower house was dark. He does not recall what happened from the time the group walked to the shower house to when he regained consciousness on the ground, bleeding from his head.
The plaintiff does not remember the incidence.
Other Scouts at the shower house reported the incident this way.
It is undisputed that other scouts reported that while they were in the shower house, plaintiff took a water pump from the wall and squirted water on them. When one of the scouts told him to stop, plaintiff ran out of the shower house and fell to the ground. None of the scouts knew what had caused the fall.
The plaintiff had been in Scouting since he was 9. He participated in monthly camp outs with his scout troop.
The plaintiffs brought claims against the troop, the New Jersey Boy Scout council where the troop was chartered and who owned the camp and the Boy Scouts of America and the individual unit leaders.
The claims where the youth were not properly supervised, and the area around the shower house were full of roots, sticks, rocks, etc.
One issue that runs throughout the decision which is not explained is the BSA Youth Protection Program. The program requires youth to always do things in groups or at least two and prohibit adults from actively being in a position where they can observe the youth in the shower. Even if an adult was with the youth, there would have to be two adults.
This program was put in place to protect both the youth and the adults in the Scouting program.
Another issue in this case is the camp was located in New York. The New York State Department of Health (DOH) had massive and strict rules for children’s camps and substantial ability to issue sanctions for violations of those rules. Some of those rules violate or make conforming to the BSA Youth Protection Program difficult.
Analysis: making sense of the law based on these facts.
The court first looked at the New York State Department of Health (DOH) rules concerning this case.
As pertinent here, the regulations require adequate supervision, and that “as a minimum . . . there shall exist visual or verbal communications capabilities between camper and counselor during activities and a method of accounting for the camper’s whereabouts at all times.”
The council had a written plan to confirm to the DOH rules.
Council’s written plan for Floodwood requires that supervision of campers “be maintained for the duration (24/7) of their stay at the camp.” Council’s Leaders Guide for Floodwood provides that “running and horseplay have no place at Scout Camps,” and all scout units must have two adult leaders with the unit at all times.
DOH did find issues with the camp’s plan. The Camp and DOH reached a settlement on those issues. However, by law the information and the settlement cannot be entered into evidence in court.
DOH investigated the incident, after which it and Council entered into a stipulation providing that DOH had alleged that Council had violated various camp regulations, including those relating to the supervision of scouts, and that the parties were thereby settling the matter by Council agreeing not to contest it, paying a fine, and submitting a revised camp safety plan. Additionally, by its terms, the stipulation is
not intended for use in any other forum, tribunal or court, including any civil or criminal proceeding in which the issues or burden of proof may differ, and is made without prejudice to [Council’s] rights, defenses and/or claims in any other matter, proceeding, action, hearing or litigation not involving [DOH] [and] is not intended to be dispositive of any allegations of negligence that may be made in a civil action for monetary damages.
The DOH requires that after any incident, a form be completed. In this case, the form was completed by a camp staffer who had no training in completing the form and had never completed a form before. DOH requires that after any incident a form be completed. In this case the form was completed by a camp staffer who had no training in completing the form and had never completed a form before.
Richard Saunders testified at an EBT that at the time of plaintiff’s accident, he was 18 years old and employed at Floodwood as a camp health officer. He described Floodwood as a “high-adventure base” for scouts older than 13 to do back-country exploring. After the accident, he completed a form as required by the DOH, on which he noted, under the category “Supervision During Incident,” that the “activity was inadequately addressed in the written plan,” by which he intended to convey that he had reviewed the scout’s written plan for the trip and saw nothing therein related to super-vision of the scouts while in the shower house. He also wrote that no camp staff was present when the accident occurred. Although Saunders had first written that the supervision was “adequate,” he changed it to “inadequate” based on the absence of an adult when plaintiff was injured. Saunders had never before filled out such a form, nor was it part of his job.
The plaintiff argued that because he was unable to remember the accident, a relaxed standard of care applied to the plaintiff’s case.
Plaintiff argues that his inability to remember the accident permits a relaxed standard of proof on summary judgment, and contends that there are two possible explanations for his accident: (1) that he was struck over the head with a blunt object by a fellow scout, or (2) that he tripped and fell while running over the uneven and non-illuminated area around the shower house, and that in either scenario, the accident would not have happened if defendants had adequately supervised that night.
The court found issues with this.
A plaintiff who, due to a failure of memory, cannot describe what led to his injury is not held to as high a degree of proof on his or her cause of action.
However, even when a plaintiff suffers from amnesia, he is not relieved of the obligation to provide “some proof from which negligence can be reasonably inferred.”
The court then looked at the duty owed by the defendants.
A “summer camp is duty-bound to supervise its campers as would a parent of ordinary prudence in comparable circumstances” And, while the degree of supervision required depends on the surrounding circumstances, “constant supervision in a camp setting is neither feasible nor desirable.”
The New York requirement for supervision allowed for reality in not requiring constant supervision. The court then looked at the applicable standard of care.
The standard for determining whether a duty to supervise a minor has been breached is “whether a parent of ordinary prudence placed in the identical situation and armed with the same information would invariably have provided greater supervision.”
Moreover, this standard requires prior knowledge on the part of the camp of dangerous conduct.
Moreover, “in determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow [campers], it must be established that [camp] authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury, that is, that the third-party acts could reasonably have been anticipated.”
Lack of supervision alone is not enough to create a cause of action. The court found the supervision was adequate. The scouts walked to the shower house as a group without incident. Until the plaintiff started horsing around, there were no supervision issues.
The court then looked at why kids go to camps and how parents should deal with those issues.
Moreover, a parent who permits his or her child to attend an overnight camping trip in the woods where the child will be taught skills related to understanding and surviving outdoor conditions, is presumably aware of the hazards and risks of injury associated with such conditions, and it would be illogical for that same parent to require or believe it necessary for the child to be escorted personally to and from every area within the camp. Such a degree of supervision “in a camp setting is neither feasible nor desirable” and camps “cannot reasonably be expected to continuously supervise and control all of [the campers] movements and activities”
Quoting another case the court stated:
The Court observed that ” [r]emembering that this is a Summer camp, it will be seen that constant supervision is not feasible . . . Nor is it desirable. One of the benefits of such an institution is to inculcate self-reliance in the campers which an overly protective supervision would destroy.”
The DOH report was also dismissed by the court because the person who had completed the report:
…because he had no authority to bind defendants to his conclusion, but also based on the circumstances that he was an 18-year old who had never before filled out or even seen a DOH report, and who had received no training or guidance as to how it should be filled out or the meanings of the terms therein.
The court reasoned. The DOH report also had failures because it stated there lacked supervision just because an adult was not present. Supervision is not only based on an adult’s presence.
Reliance on the DOH requirement of “visual or verbal communication” between campers and counselors and Council’s plan for Floodwood which required the supervision of campers “24/7” is misplaced as neither requires that the Troop leaders be constantly present with the scouts
At the same time, the supervision issue was irrelevant if the accident was not foreseeable. There was no evidence presented that the scouts would engage in dangerous conduct or misbehave. Even if some of the misbehavior was foreseeable, there was no evidence that, and it was not foreseeable that the plaintiff would bolt from the shower house, trip and fall and receive an injury.
As it is undisputed that defendants had no notice of the possibility of misbehavior among the scouts, they have established that plaintiff’s accident was not foreseeable.
Even if the Troop leaders had escorted the scouts to the shower house and stood outside while they showered, the alleged misbehavior occurred inside the shower house, and thus the leaders would neither have observed it nor been in a position to stop it. And unless the leaders blocked the entrance, they would not have been able to stop plaintiff from running out of the shower house and falling down.
On top of all of that, even if leaders were present the accident happened too quickly for anyone to have stopped it. Besides, the acts leading to the injury were solely done by the plaintiff, without interference or prodding from anyone other youth or leader. “Moreover, it was plaintiff’s own impulsive and reckless conduct in squirting the other scouts with the water pump and then running out of the shower house, that led to his injury.”
Thus, as the accident occurred in a very short time span and as plaintiff’s own impulsive conduct led to his injury, defendants have demonstrated that there is no proximate cause between their allegedly inadequate supervision and plaintiff’s accident.
The final issue tackled by the courts was the lighting and conditions of the area where the shower house was located. Because the plaintiff could not identify what caused him to fall, it could not be said the fall was caused by inadequate lighting.
Thus, as the accident occurred in a very short time span and as plaintiff’s own impulsive conduct led to his injury, defendants have demonstrated that there is no proximate cause between their allegedly inadequate supervision and plaintiff’s accident.
On top of that, the plaintiff was wearing a headlamp at the time of the accident so even if lighting were to blame the plaintiff had brought his own. Identifying the area around the shower house without being able to identify which of those conditions caused his injury is not enough to argue a legal claim.
Plaintiff was able, however, to recall the conditions outside of the shower house, which consisted of typical conditions in any wooded or camp area, i.e., rocks, dirt, branches, etc., and having been on several camp trips, was presumably aware of the existence and risks of such conditions. He did not identify or recall any unusual, unexpected, or dangerous conditions, nor have any such conditions been alleged.
The decision of the trial court was upheld, and the plaintiff’s claims were dismissed.
So Now What?
First, more information needs to be given to parents to try to educate them of the risks of any youth activity. On top of this, programs designed to protect kids need to be explained both to why they are used and what the adults can and cannot do, like the BSA YPT program.
On top of that, you need to develop proof that your parents knew the risks of the activity. New York does not allow a parent to sign away a minor’s right to sue. (See States that allow a parent to sign away a minor’s right to sue.) As such the only real defense you would have would be assumption of the risk. (See Assumption of the Risk and Assumption of Risk — Checklist)
I would include in that assumption of the risk form statements about the kid’s age and prior camping/outdoor experience as in this case. Ask the parents to relate or checkbox their outdoor experience.
You can use the form to determine who else can help your unit or program, and you can use the form to prove the parents knew and assumed the risk.
![clip_image002[4]](https://recreation-law.com/wp-content/uploads/2016/07/clip_image0024_thumb.jpg?w=244&h=348 "clip_image002[4]")
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2016 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
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, BSA, Boy Scouts of America, Youth, YPT, YPP, Headlamp, Shower House, Supervision, Adequate Supervision, Negligent Supervision,
2016 Climbing for Kids with Bigger Mountains to Climb
Posted: July 2, 2016 Filed under: Youth Camps, Zip Line | Tags: x, y, z Leave a comment2016 Climbing for Kids
What: Each year we climb 14,000 feet to the summit of Mt. Bierstadt to honor children with much bigger mountains to climb
When: August 12th, 2016
Where: Mt. Beirstadt
Beneficiaries:Children’s Hospital Colorado Learning Services and Pediatric Mental Health Institute
Registration:
Team Children’s
New Book on Ultrarunning and Training
Posted: April 26, 2016 Filed under: Youth Camps, Zip Line | Tags: Koop, Ultrarunning, VeloPress Leave a comment
JASON KOOP LEADS AN ULTRAMARATHON TRAINING REVOLUTION
Koop’s New Book, Training Essentials for Ultrarunning, Reveals His Unique Training Approach
When elite ultrarunners have a need for speed, they turn to coach Jason Koop. Now the sport’s leading coach makes his highly effective ultramarathon training methods available to ultrarunners of all abilities in his new book, Training Essentials for Ultrarunning. Koop’s book is now available in bookstores, running shops, and online. See a preview at velopress.com/koop.
Ultramarathoners have traditionally piled on the miles or tried an approach that worked for a friend. Yet ultramarathons are not just longer marathons; simply running more will not prepare you for the race experience you want. Ultramarathon requires a new and specific approach to training. Training Essentials for Ultrarunning will revolutionize training for those who want to race an ultramarathon instead of just gutting it out to the finish line.
Koop’s race-proven ultramarathon program is based on sound science, the most current research, and years of experience coaching the sport’s star runners to podium performances. Packed with practical advice and vetted training methods, Training Essentials for Ultrarunning is the new, must-have resource for first-timers and ultramarathon veterans.
Runners using Training Essentials for Ultrarunning will gain much more than Koop’s training approach:
* The science behind ultramarathon performance.
* Common ultramarathon failure points and how to solve them.
* How to use interval training to focus workouts, make gains, reduce injuries, and race faster.
* Simple, effective fueling and hydration strategies.
* Koop’s A.D.A.P.T. method for making the right decisions to solve a race-day crisis.
* How to plan your ultra season for better racing.
* Course-by-course coaching guides to iconic U.S. ultramarathons: American River 50, Badwater 135, Hardrock 100, Javelina 100, JFK 50, Lake Sonoma 50, Leadville 100, Vermont 100, Wasatch 100, and Western States 100.
* How to achieve your goal, whether it’s finishing or winning.
A revolution is coming to ultrarunning as ultramarathoners shed old habits and embrace the smarter methods that science and experience show are better. Featuring stories and advice from ultrarunning stars Dakota Jones, Kaci Lickteig, Dylan Bowman, Timothy Olson, and others who work with Koop, Training Essentials for Ultrarunning is the go-to guide for first-time ultrarunners and competitive ultramarathoners.
Tobogganing is added to the NJ Skier Safety Act, yet in this case, it allows the ski area to be sued.
Posted: March 14, 2016 Filed under: Minors, Youth, Children, New Jersey, Ski Area | Tags: Duty of care, Hazard, New Jersey, New Jersey Skier Safety Act, ski area, Toboggan, Trespasser, Ultra Hazard, Warning Leave a commentHowever, the courts in this case seemed to want the plaintiffs to win no matter what.
State: New Jersey, Superior Court of New Jersey, Appellate Division
Plaintiff: Patrick Brett and Elisa Ramundo
Defendant: Great American Recreation, Inc. et al.
Plaintiff Claims: Negligence
Defendant Defenses: (1) defendant owed no duty to plaintiffs under either the common law or the Statute because they were trespassers at the time of the accident, and (2) even if plaintiffs were not barred from recovery as trespassers, the facts of this case do not render defendant liable under the terms of the Statute.
Holding: For the plaintiff’s
Year: 1995
This is an old decision; however, it explains how a statute created to and passed to protect an activity, can be used to hold the operators of the activity liable.
There are numerous claims, cross claims, third party claims and claimants. Several parties were dismissed prior to trial. Basically, everyone who was brought into the lawsuit also made claims against the people bringing them in and anyone else that could have any liability.
Thirteen college friends intended to spend the weekend in a condo owned by the uncle of one of the thirteen. The condo was sitting next to the Great Gorge North ski area. Between the ski area and the condos was a vacant strip of land. The land is owned by two condo associations, including one of the plaintiffs were staying in.
During the day, the vacant strip of land is used by the ski area as a bunny hill. When the ski hill is closed the lights are turned off. However, the lights are turned back on later in the night for the groomers to operate.
One of the party of 13 found in the condo a toboggan. After the lights were turned back on, several of the thirteen went tobogganing on the bunny hill. They were not alone tobogganing; other people were tobogganing, sledding and using the hill after it had closed but with the lights on.
Different people in the group used the toboggan at different times; taking turns because the toboggan could only hold six at a time. On the third run, the toboggan was launched higher up the hill.
The toboggan went down the bunny hill across a fifty to sixty foot flat section of land, over a flattened snow fence then over the edge of a 20’ embankment landing in the parking lot below. One of the six was able to fall off the toboggan before it went over the embankment. The five remaining riders were seriously injured landing in the parking lot and hitting a light pole.
Security guards were employed by the defendant condo association. Part of their duties included keeping people off the bunny hill. However, this night the security guards were shorthanded, and hill was not checked. The plaintiff’s even argued that the defendants were negligent because they failed to eject people on the bunny hill.
Stonehill employed security personnel to police the entire condominium area, including the Bunny Buster trail. That policing included keeping trespassers off the trail at night, but the security force was short-handed that night and failed to police the trail. Defendant’s attorney argued in his summation that Stonehill was negligent because it failed to have its security force eject after-hours trespassers.
The case proceeded to trial, and the plaintiffs were awarded $2,475,000 among the five of them. The damages were apportioned under comparative negligence as: plaintiffs 22%, defendant 54% and Stonehill 24% (one of the condo associations).
The defendants appealed.
Analysis: making sense of the law based on these facts.
The court first pointed out that even if the plaintiffs were found to be trespassers that did not mean, under New Jersey law that no duty was owed to the trespassers. If the land contained a dangerous instrumentality, then a duty is owed to a trespasser to warn them of the danger.
Traditionally, a landowner owed no duty to a trespasser other than to refrain from acts willfully injurious.” The Court held, however, that even traditionally there was a higher standard of care due a trespasser “when the property owned by the landowner can be classified as a dangerous instrumentality.” Here, the design of the Bunny Buster trail rendered it unexpectedly dangerous.
In this case, the court concluded that next to a bunny hill, an embankment is a dangerous instrumentality. The court’s opinion of the situation is pretty clear in the next discussion when the embankment is called a fatal trap.
Here, on one side of that relationship are young people attracted to a condominium because of its proximity to snow trails and who, not unexpectedly, used defendant’s adjacent lighted trail to toboggan after skiing hours. On the other side of the relationship is the operator of the trail, which, as designed, was a near-fatal trap to those using the trail to toboggan.
New Jersey has a Skier Safety Act. The court found that the New Jersey Skier Safety Act applied to this case.
To determine whether it applies to the exclusion of common-law principles, one must look at two sections of the Statute: N.J.S.A. 5:13-4, which lists the duties of skiers, 1 and N.J.S.A. 5:13-5, which describes the risks that a skier is deemed to have assumed. If a factfinder finds that a skier was injured because he or she had violated one or more of those statutory duties or is deemed by the Statute to have assumed one or more of the stated risks of skiing, the Statute applies.
Once it is determined the act applies, the court, or jury, determines if the injuries of the plaintiff were caused by the ski operators violation of the act. If so the plaintiff recovers.
If the factfinder finds that the injuries were not proximately caused by the ski operator’s violation of any of its statutory responsibilities, the Statute bars the injured skier from recovering compensation from the operator. If the factfinder finds that the injuries were proximately caused by the ski operator’s violation of one or more of its statutory responsibilities, the skier is entitled to recover under principles of comparative negligence.
The court also found the plaintiff’s violated one statute of the New Jersey Skier Safety Act. The plaintiff’s failed to maintain control of their toboggan and did not know their abilities.
Here it is obvious that plaintiffs violated at least one of the statutory duties and therefore the Statute applies. [HN7] N.J.S.A. 5:13-4d provides:
A skier shall be the sole judge of his ability to negotiate any trail, slope, or uphill track and shall not attempt to ski or otherwise traverse any trail, slope or other area which is beyond the skier’s ability to negotiate.
The court also found the plaintiff’s assumed the risk because they still went down the slope. However, this assumption of the risk, the court found was not a complete bar, but only proved the plaintiffs contributed to their injuries. Which is contrary to how the assumption of risk provision reads and is somewhat contrary to earlier statements in the case?
It is important to note that these statutory violations and risk assumptions do not affect the percentage of a skier’s comparative negligence. That determination is left to the factfinder if it finds that the skier contributed to his or her own injuries by violating one or more of the skier’s responsibilities. The skiers’ statutory violations and risk assumptions initially serve merely to invoke application of the Statute.
This interpretation of the statute effectively render’s the inherent risk section of the statute void. An inherent risk is a risk that is part of the activity. In inherent risk is something that cannot be removed from the activity without rendering the activity moot. You cannot sue for an injury you receive from an inherent risk of the activity, allegedly. Skier Safety Acts are written to broaden the risks that are inherent and to make them, if assumed an absolute bar to a claim, in most states.
However, in New Jersey, this is not the case.
It is important to note that these statutory violations and risk assumptions do not affect the percentage of a skier’s comparative negligence. That determination is left to the factfinder if it finds that the skier contributed to his or her own injuries by violating one or more of the skier’s responsibilities. The skiers’ statutory violations and risk assumptions initially serve merely to invoke application of the Statute.
The case took a somewhat amusing turn. The court reviewed the plaintiff’s claim that a stronger fence should have been built and that the defendants were liable because they had not built a fence strong enough to keep the plaintiff’s from going over the embankment. Aren’t the injuries going to be different when a toboggan going fast enough to over an embankment hits a fence, but still severe?
The argument then went back to the New Jersey Skier Safety Act. The act differentiates between manmade hazards and natural ones. The statute defines a ski area as real property “…”utilized for skiing, operating toboggans, sleds, or similar vehicles during the skiing season.”
However, the court simply stated, “Being borne off an embankment after reaching the bottom of a trail is not an inherent risk of tobogganing.”
Then the court looked at the hazard and determined the act required removal of a hazard. If the hazard could not be removed, then the plaintiff’s had to be warned of the hazard.
Where physical removal of a hazard is not possible, reasonable warnings of the hazard may constitute its practicable removal. The Statute impliedly contemplates that an operator at least has a duty to post suitable warnings of danger. It will be recalled that N.J.S.A. 5:13-5 expressly charges skiers with the reciprocal duty “to heed all posted warnings.”
The decision then went back to the duty owed to trespassers. The defendants argued the New Jersey Skier Safety Act does not apply to trespassers. However, the court stated that even if the plaintiffs were trespassers a high duty was owed with or without the New Jersey Skier Safety Act.
We already suggested that even at common law, defendant may owe plaintiffs a duty of reasonable care because their presence on the lighted trail was reasonably foreseeable, the risk of grave injury was great and the duty of care was not delegable.
The court then summed out the analysis it was making to allow a recovery by the plaintiffs.
Plaintiffs were not merely “in” the ski area; they were “utilizing the ski area for recreational purposes such as . . . operating toboggans.” They were therefore skiers entitled to recover under principles of comparative negligence if defendant violated any of its limited statutory responsibilities.
The statutory responsibility was the failure to remove the embankment or post a warning about it.
A major issue at trial was whether defendant violated any of its statutory responsibilities. The focus was on the meaning of [HN10] N.J.S.A. 5:13-3, which provides in relevant part:
a. It shall be the responsibility of the operator to the extent practicable, to:
* * * *
(3) Remove as soon as practicable obvious, man-made hazards.
The appellate court upheld the jury’s decision and award at trial.
So Now What?
In New Jersey, you must make your property safe for all users of the property, even if they are doing so without our permission. If you cannot remove the hazard, you must post a warning of the hazard, if the hazard is considered ultra-hazardous.
Simply put, risk management is not controlling what people are expected to do at your program or business. Risk Management is looking at all aspects of the operation and finding ways that people can be hurt doing things other than what they came for.
The Zip Line may be perfect but is someone can mistake an anchor for a zip line you will be sued. See Federal court voids release in Vermont based on Vermont’s unique view of release law. Someone uses the equipment incorrectly, and the court is going to hold you to the fire. See Sometimes you get screwed; here Petzl was shafted by the court.
However, a person can use a piece of equipment, try a ride, climb up or down; they will do it wrong, be hurt and sue.
Risk Management is looking at things from every point of view, for every age group, for every activity, if you don’t think those people, those age groups or that activity can be done.
 |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, 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 manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
Outdoor Recreation Insurance, Risk Management and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
G-YQ06K3L262
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2016-2023 Summit Magic Publishing, LLC
#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, Toboggan, New Jersey, Hazard, Ultra Hazard, Warning, New Jersey Skier Safety Act, Ski Area, Trespasser, Duty of Care,
Call for Presentations—2016 NAAEE Conference and Research Symposium
Posted: March 4, 2016 Filed under: Youth Camps, Zip Line | Tags: Environmental Education, NAAEE, National American Association of Enviromental Education Leave a comment
NAAEE is seeking compelling proposals that inform environmental educators about proven practices; explore emerging issues in EE research; advance diversity, equity, and inclusion in the field; and motivate the pursuit of excellence.Please help us spread the word by sharing this announcement with your professional networks. Visit NAAEE.org/conference for information on submitting proposals or volunteering as a reviewer.
|
Skiing collision in Utah where the collision was caused by one skier falling down in front of the other skier
Posted: February 29, 2016 Filed under: Skier v. Skier, Skiing / Snow Boarding, Utah, Youth Camps | Tags: Collision, Downhill Skier, skier collision, skier v. skier, Uphill Skier, Utah Leave a commentIs that a collision, an obstacle, a reason for a lawsuit? Skiers fall all the time.
State: Utah, Court of Appeals of Utah
Plaintiff: Gary Ricci
Defendant: Charles Schoultz, M.D.
Plaintiff Claims: Negligence
Defendant Defenses: no negligence
Holding: for the defendant
Year: 1998
Sometimes you stumble across a case that catches your eye from the way the facts are described by the court. This is one of them.
The two skiers were advanced skiers skiing on an easy run. Both were skiing under control. The defendant was part of a ski school class. The defendant was taking small easy turns as part of his class. Just as he was being passed by the plaintiff, he reached the top of a crest and slowed down, lost control and fell into the path of the plaintiff.
The two collided and slid into a tree at a high rate of speed. The plaintiff hit the tree suffering injuries. The defendant was able to ski away on his own.
At trial, the plaintiff argued that the defendant was negligent because he fell on an easy run.
At trial, Ricci argued that since Schoultz’s fall took place on one of the easiest runs at Snowbird under near perfect conditions, there was no possible reason for Schoultz to have fallen except for his own negligence.
The jury found the defendant was negligent and returned a verdict in favor of the plaintiff. The trial judge then granted the defendant’s j.n.o.v. (judgment notwithstanding the verdict). This was based on the court’s opinion that there was no negligence on the part of the defendant. “There was a duty not to be negligent. However, there was no negligence on the part of the defendant in this case.” Thus, the trial judge granted Schoultz’s j.n.o.v. motion, or alternatively granted a new trial.”
A JNOV is a fantasy. They never occur because as long as there is some evidence of negligence and a decision by the jury a trial judge is not going to overturn a jury verdict. To overturn a judgment by a jury the trial judge:
…[is] justified in granting a j.n.o.v. only if, after looking at the evidence and all of its reasonable inferences in a light most favorable to [the nonmoving party], the trial court concludes that there [is] no competent evidence to support a verdict in [the nonmoving party’s] favor.
Consequently, the burden to grant a JNOV and overturn the jury’s verdict is very high and never done.
The appellate court has the same standard in reviewing a JNOV granted by the trial court.
“On appeal, we apply the same standard. In determining whether competent evidence supports the verdict, we accept as true all testimony and reasonable inferences flowing therefrom that tend to prove [the nonmoving party’s] case, and we disregard all conflicts and evidence that tend to disprove its case. Thus, if we determine that there was competent evidence supporting the jury’s verdict, we must reverse the trial court’s grant of the j.n.o.v.
The plaintiff appealed the JNOV which granted a judgment for the defendant.
Analysis: making sense of the law based on these facts.
The appellate court looked at other collision cases were the cases rested on whether or not the defendant was negligent. Something was required to support the idea that the plaintiff was negligent in those cases that had found negligence, such as the defendant drinking a large quantity of alcohol.
The court found several cases where collisions on the slopes had occurred, but the defendant was found not to be liable because there was no evidence of negligence on the part of the defendant.
…the Tenth Circuit Court of Appeals affirmed the trial court’s ruling that the plaintiff could not recover from defendant for injuries sustained in a mid-mountain ski collision. Similar to the case at bar, the defendant was skiing behind the plaintiff and failed to alert plaintiff of his presence before they collided. The LaVine court specifically rejected the appellant’s claim of negligence: “Appellant contends that the collision itself conclusively establishes the defendant’s negligence and the plaintiff’s right to recover. We disagree.”
In another decision the court reviewed, there was the same statement that care was owed by the defendant. The defendant is not the insurer of the plaintiff and not responsible for everything that happens to a skier on the slopes.
The Dillworth court stated some collisions between skiers may be as a result of the obvious and necessary risks inherent in skiing, and accidents might occur despite the exercise of ordinary and reasonable care and without negligence by either skier. . . . Like all others, skiers owe that degree of care an ordinary prudent person would exercise under like or similar circumstances. One skier is not the insurer of another skier’s safety nor, absent negligence, is one skier liable to another for inadvertent or accidental contact. . . . Thus . . . skiers who lose control even while exercising due care–that is, have breached no duty owed to other skiers–may pose a danger which is inherent, obvious and necessary to participate in the sport of skiing.
The court found that falling down on the slope is not proof of negligence. Without something to indicate that the defendant was negligent, a plaintiff cannot recover.
In sum, a skier does have a duty to other skiers to ski reasonably and within control. However, an inadvertent fall on a ski slope, alone, does not constitute a breach of this duty. We conclude, after a careful review of the trial record, that Ricci failed to introduce any competent evidence that Schoultz was skiing negligently before his sudden and unexpected fall in front of Ricci. Ricci himself testified about the conditions and events just before the accident, noting that up to one second before the collision, Schoultz was skiing in control.
Ricci’s evidence, including all reasonable inferences drawn from it, is simply insufficient for a jury to have concluded that Schoultz skied negligently.
The appellate court upheld the trial court’s granting of the JNOV and did not look at the other issues raised by the plaintiff on appeal.
There was a dissent in the opinion that argued there was enough evidence based on his analysis of the facts to support the jury finding. However, the facts presented were circumstantial based on the dissenting judge’s review of the evidence.
So Now What?
This was a rare case. There seems to be an assumption in all ski collision cases that if two people are on a slope together, and they collide with one person must have been negligent. This decision and the two other decisions the court pointed out show that is not the case. Not every collision on a ski slope is a negligent act.
At the same time, this is fairly easy to see and understand the issues because the party causing the collision, even though the “downhill” skier was the party that probably generated the issues to start the collision.
However, falling down is not negligence on a ski slope, at least in Utah.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2016 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
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, Utah, Collision, Skier v. Skier, Skier Collision, Uphill Skier, Downhill Skier,
Experience Industry Management Conference and Research Retreat Updates
Posted: February 23, 2016 Filed under: Youth Camps, Zip Line | Tags: Conference, Experience Industry Management Leave a commentThe Annual Experience Industry Management (EIM) Conference hosted by the Department of Recreation Management at BYU will take place March 29-30, 2016 in Provo, UT.
This three-day event brings together academics and professionals from a variety of fields and industries to talk about the provision of meaningful experiences. The conference also provides excellent networking opportunities for current students interested in experience industry related careers.
This year’s conference will features an excellent selection of experience design related speakers, workshops, and networking events. Announced speakers include:
- Dan Farr, Founder of SLC Comic Con
- Fire Fly
- Tanner Bell, President of Ragnar Events
- Davis Smith, CEO of Cotopaxi
- Todd Manwaring, Director of BYU’s Ballard Center for Economic Self-Reliance and Peery Social Entrepreneurship Program
A research retreat on Monday, March 28 precedes the conference. The day will provide researchers the opportunity to: generate and share research ideas by leading a roundtable discussion, share work in progress, and/or present completed research. The intent is to provide a setting different than a traditional research symposium by creating time and space for discussion of ideas. The hope is to bring a group of academics together who have a shared interest in studying and understanding experiences from the participant and provider perspective and who are eager to discuss ideas. We define experiences quite broadly and hope to attract a diverse array of researchers, research topics, and discussion areas. It will be a collaborative and intimate experience with ample opportunities for interaction.
For more information and to register visit: http://marriottschool.byu.edu/event/eimconf2016/home
The abstract submission deadline for the EIM Research Retreat is February 16th. See the attachment for more information.
Mat Duerden, PhD
Assistant Professor
Department of Recreation Management
Marriott School of Management
Brigham Young University
801-422-3834
EIM CALL FOR ABSTRACTS (Research Retreat).docx
10th annual Colorado Environmental Film Festival: Attend, Volunteer, Spread the Word!
Posted: February 16, 2016 Filed under: Youth Camps, Zip Line | Tags: Colorado, Environmental Film Festival, Film Festival, Golden, Volunteer Leave a comment
Please join me!!!! You can buy tickets in advance at certain Whole Foods stores. Visit www.ceff.net for locations and details.
Or volunteer:
We’re using VolunteerSpot (the leading online Sign-up and reminder tool) to organize our upcoming Sign-ups for the 10th Annual Colorado Environmental Film Festival February 18-20, 2016.
Here’s how it works in 3 easy steps:
1) Click this link to see our Sign-up on VolunteerSpot: http://vols.pt/GaNPio
2) Review the options listed and choose the spot(s) you like.
3) Sign up! It’s Easy – you will NOT need to register an account or keep a password on VolunteerSpot.
Note: VolunteerSpot does not share your email address with anyone. If you prefer not to use your email address, please contact ceffchair and we can sign you up manually.
Before a meeting a volunteer leader has no duty to protect the youth. Besides kids throw snowballs.
Posted: January 18, 2016 Filed under: Minors, Youth, Children, New York | Tags: Boy Scouts, Boy Scouts of America, negligent supervision, parental control, Scout, Scout meeting, Scoutmaster Snowball, Snowball fight Leave a commentIf there is snow, then there will be snowball fights.
Citation: Alvero v. Allen, Jr., 262 A.D.2d 434; 692 N.Y.S.2d 116; 1999 N.Y. App. Div. LEXIS 6634
State: New York: Supreme Court of New York, Appellate Division, Second Department
Plaintiff: James W. Allen, Jr. (I think)
Defendant: Martin Alvero (I think)
Plaintiff Claims: Negligent Supervision
Defendant Defenses: No Duty
Holding: For the Defendant
Year: 1999
This is a great decision, not only for the holding but for several statements and just solid logical reasoning for the decision.
A group of youth was sitting outside waiting for the Boy Scout meeting to start. During that time, the plaintiff was hit on the head by an ice ball. The defendant scoutmaster said he had not arrived yet the plaintiff said the Scoutmaster had arrived and had gone into the building without letting the youth in.
The ice ball was allegedly the first snowball thrown.
The Scoutmaster moved to dismiss the complaint, and the trial court denied the dismissal. The Scoutmaster appealed giving rise to this decision.
The parties are never identified by name just the appellant is the person brining the appeal, named first in the pleading, so I am assuming the appellant scoutmaster is Martin Alvero.
Analysis: making sense of the law based on these facts.
Here was the basis of the court’s decision to dismiss the case quoting from a similar fact situation at a school.
“[n]o one grows up in this climate without throwing snowballs and being hit by them. If snow is on the ground as children come to school, it would require intense policing, almost child by child, to take all snowball throwing out of play. It is unreasonable to demand or expect such perfection in supervision from ordinary teachers or ordinary school management; and a fair test of reasonable care does not demand it”.
The court then reasoned that additional, the defendant had no notice of a snowball fight. “Given the absence of proof that the defendant in the present case had notice of an ongoing and potentially dangerous snowball fight, the plaintiff may not prevail on a theory of inadequate supervision…”
Here is another key provision that is important to remember if you are a volunteer.
This conclusion is reinforced by the fact that the plaintiff’s father was present in his car about 50 feet away and neither he nor any of the other parents who were present in the area saw fit to intervene in any way prior to the incident.
Because the father was still present, he could have done something about a snowball fight. More importantly because the plaintiff’s father was still present, he is liable for the plaintiff.
Finally, the court found that the Scout meeting had not begun so therefore the liability of the Scoutmaster (adult volunteer) could not attach.
We also note that the scout meeting had not begun, no official scouting activity was taking place, and, according to the plaintiff’s version, the defendant had entered the building locking the door behind him, thus implicitly leaving the assembling Boy Scouts in the custody of the adults who were present outside
So Now What?
There are several great take a-ways from this case for New York Volunteers.
Until the youth meeting has begun, no liability attaches to the adult volunteers. Likewise, until the adult volunteer arrives no liability attaches.
Second and most importantly no liability attaches to third parties for protecting a child with the parents present unless the acts are intentional. If you are concerned about a child or the child’s parent or if the parent is concerned about your supervision over their child, just require them to be present.
Finally, kids are kids and there is something that no adult can stop kids from doing. Snow on the ground leads to snowball fights and there is nothing you can do about it.
|
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, 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 manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
G-YQ06K3L262
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2023 Summit Magic Publishing, LLC
#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, Boy Scouts, Scout, Scoutmaster Snowball, Snowball fight, negligent supervision, parental control, Boy Scouts of America, Scout meeting,
Alvero v. Allen, Jr., 262 A.D.2d 434; 692 N.Y.S.2d 116; 1999 N.Y. App. Div. LEXIS 6634
Posted: January 17, 2016 Filed under: Legal Case, Minors, Youth, Children, New York | Tags: Boy Scouts, Boy Scouts of America, negligent supervision, parental control, Scout, Scout meeting, Scoutmaster Snowball, Snowball fight Leave a commentTo read an Analysis of this opinion see Before a meeting a volunteer leader has no duty to protect the youth. Besides kids throw snowballs.
Alvero v. Allen, Jr., 262 A.D.2d 434; 692 N.Y.S.2d 116; 1999 N.Y. App. Div. LEXIS 6634
Martin Alvero, Respondent, v. James W. Allen, Jr., Appellant.
98-06867
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
262 A.D.2d 434; 692 N.Y.S.2d 116; 1999 N.Y. App. Div. LEXIS 6634
April 26, 1999, Argued
June 14, 1999, Decided
COUNSEL: Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Edward R. Rimmels of counsel), for appellant.
Siben & Siben, LLP, Bay Shore, N.Y. (Alan G. Faber and Gerald I. Friedman of counsel), for respondent.
JUDGES: Bracken, J. P., Thompson, Sullivan and Friedmann, JJ., concur.
OPINION
[*434] [**117] Ordered that the order is reversed, on the law, with costs, that branch of the motion which was for summary judgment is granted, and the complaint is dismissed.
The infant plaintiff was hit on the head with what he described as an “ice ball” while he and several other Boy Scouts were waiting outside a church in which the weekly meeting of [*435] their Boy Scout troop was scheduled to begin. At a deposition given in connection with a separate action commenced against another entity, the infant plaintiff [***2] stated that he had not seen anyone throw anything prior to the time he was hit. He responded affirmatively when asked whether the “ice ball” with which he was struck, and which had apparently been thrown by another Boy Scout, was “the first thing that was thrown during the whole time from when you got to the church up until you got hit”.
The defendant in the present action is the Boy Scout troop leader who was to be in charge of the meeting. According to his affidavit, he was informed upon his arrival at the church that the infant plaintiff had already been injured. According to the affidavit of the infant plaintiff, on the other hand, the defendant had arrived prior to the incident, had entered the building, and had refused to allow the infant plaintiff to follow him inside. The Supreme Court denied the branch of the defendant’s motion which was premised on CPLR 3211, and denied that branch of the motion as was premised on CPLR 3212, holding that such an application was premature prior to the joinder of issue. We reverse.
The parties clearly laid bare their proof, and treated the motion as one for summary judgment. The [***3] Supreme Court was therefore authorized to treat the pre-answer application pursuant to CPLR 3211 (a) (7) as one for summary judgment (see, CPLR 3211 [c]; see, e.g., MacDonald v Prudential Sec., 247 AD2d 346; Palazolo v Palazolo, 244 AD2d 393; Gelmin v Quicke, 224 AD2d 481).
Turning to the merits, it is clear that the defendant cannot be held liable based on allegations of inadequate supervision under the facts as outlined above. As the Court of Appeals stated in Lawes v Board of Educ. (16 NY2d 302, 304), “[n]o one grows up in this climate without throwing snowballs and being hit by them. If snow is on the ground as children come to school, it would require intense policing, almost child by child, to take all snowball throwing out of play. It is unreasonable to demand or expect such perfection in supervision from ordinary teachers or ordinary school management; and a fair test of reasonable care does not demand it”.
[**118] Given the absence of proof that the defendant in the present case had notice of an ongoing and potentially dangerous snowball [***4] fight, the plaintiff may not prevail on a theory of inadequate supervision (see also, Johnsen v Cold Spring Harbor Cent. School Dist., 251 AD2d 548; Kennedy v Seaford Union Free School Dist. No. 6, 250 AD2d 574). This conclusion is [*436] reinforced by the fact that the plaintiff’s father was present in his car about 50 feet away and neither he nor any of the other parents who were present in the area saw fit to intervene in any way prior to the incident. We also note that the scout meeting had not begun, no official scouting activity was taking place, and, according to the plaintiff’s version, the defendant had entered the building locking the door behind him, thus implicitly leaving the assembling Boy Scouts in the custody of the adults who were present outside (see generally, Phillipe v City of New York Bd. of Educ., 254 AD2d 339 [school has no duty of supervision prior to starting of school day]). For these reasons, the defendant was entitled to summary judgment.
Bracken, J. P., Thompson, Sullivan and Friedmann, JJ., concur.
Internships
Posted: January 2, 2016 Filed under: Youth Camps, Zip Line Leave a commentEnvironmental Education Instructors:
1) Spring Season (March 1, 2016 – May 31, 2016): 15 hours/week, college credit potential, additional perks
Our Spring interns work closely with the Program Coordinator to lead Field Trips, After School Garden Club, and Classroom Visits in our Children’s Peace Garden. The right candidate should have a passion for teaching young students about environmental stewardship, nutrition, respect for diversity, plants, creative self-expression, etc. We utilize hands on activities to teach students about organic gardening, the garden as the source of food, how to prepare simple meals, and the ecology of an organic garden. We will train and orient you on the different curriculum’s we have in place to teach the classes as well as effective teaching strategies to engage the students during the lessons. This position is ideal for someone interested in gaining experience as an educator in the Environmental Education field.
For the full description of responsibilities, expectations, perks, etc. please check the website.
2) Summer Season (May 15, 2016 – August 15, 2016): 30 hours/week, $625 stipend at the completion of the internship, additional perks
Our Summer interns work closely with the Program Coordinator to lead Summer Camps and Field Trips for the Children’s Peace Garden during the summer. The ideal candidate will have a minimum of three months previous teaching experience with elementary aged children. This can range from working at summer camps, before/after school programs, coaching, etc. The candidate should have a passion for teaching and working with younger students. We utilize hands on activities to teach students about organic gardening, the garden as the source of food, how to prepare simple meals, and the ecology of an organic garden. Most of the classes and trips take place during the regular week in the mornings and early afternoons.
For the full description of responsibilities, expectations, perks, etc. please check the website.
3) Full Season (March 1, 2016 – October 31, 2016): 40 hours/week, monthly stipend of $800, 1 week paid vacation, additional perks
Our Full Season interns spend the majority of their time leading Field Trips, After School Garden Club, Summer Camps, and Classroom visits for the Children’s Peace Garden. In addition to teaching in the Peace Garden, Full Season interns will be responsible for teaching in the Horticulture Therapy Program twice a month. During the Summer they will assist the Program Coordinator in mentoring the teens participating in the Cultiva Youth Project. Interns help teach teenagers about sustainable agriculture, leadership skills, entrepreneurial and life skills while working alongside the youth in the fields. In addition to this, interns will have the opportunity to learn about vegetable production while they work in the greenhouse and fields approximately two hours per week.
For the full description of responsibilities, expectations, perks, etc. please check the website.
Growing Internships:
Spring Growing Internship: see website
Full Season Growing Internship: see website
You can also view the detailed descriptions that are attached!
To apply:
The official application can be found on our website at francisco
Applications are due by February 1, 2016 although our goal is to have all the positions filled before this date. We will be filling positions as applications come in.
Please direct any questions to Francisco Di Poi
Francisco Di Poi
Program Coordinator
Growing Gardens
Boulder, Colorado
303.443.9952
Cultivating community through sustainable urban agriculture
Environmental Education Instructor (Full Season) March – Oct 2016.pdf
Environmental Education Instructor (Spring) March – May 2016.pdf
Environmental Education Instructor (Summer) May-Aug 2016.pdf
Greenhouse and Garden Grower March – May 2016.pdf
Orchard and Farm Growing Intern March – Nov 2016.pdf
$250,000 to get kids into Parks! “Every Kid in a Park”
Posted: December 24, 2015 Filed under: Youth Camps, Zip Line | Tags: #OIA, Every Kid in a Park, Outdoor Foundation, Outdoor Industry Association, Parks, Parks & Recreation, Youth Leave a commentToday, it was announced that Outdoor Foundation and Outdoor Industry Association put $250,000 seed money into an online crowdsourcing funding opportunity. Please check it out and let your education and nonprofit partners know they can go to https://www.crowdrise.com/everykidinapark and upload their project proposal. This is a fantastic opportunity to find funds for transportation.
Good luck!!!
Here are the basics. There is more on the site:
Commitment:
Outdoor Industry Association and Outdoor Foundation and its partners will launch the Centennial Campaign with an initial investment of $250,000 – giving school and nonprofit partners a kick start to their fundraising efforts and challenging the outdoor industry and other sectors to join the campaign. As part of this commitment and to kick off the campaign, the Foundation will award $100 to the first 100 projects that sign up.How It Works:
1. School and nonprofit partners register and create their campaign profile that describes their project and fundraising need.
2. Working with Outdoor Industry Association and Outdoor Foundation, partners promote their project by sharing a unique URL with potential funders.
3. In preparation for the park visit, partners should go to the ‘Every Kid in a Park’ website https://everykidinapark.gov to learn more about the initiative and download free park passes.
4. Once the fundraising goal is met, the partner is prompted to submit a few verification documents (i.e. w-9 and letter from participating school) to the Outdoor Foundation.
5. The Foundation will release funds within 30 days of receiving the information.
6. Every Kid in a Park becomes a reality!Criteria:
1. Only schools and nonprofits are eligible.
2. The park experience must engage 4th graders.
3. The park experience must happen on participating federal lands and water in 2016. CLICK HERE to see all of the agencies and locations supporting Every Kid in a Park.
4. All funds should be used for direct park experience expenses.
Did you Love Philmont, Buy a Brick or Plant a Tree to Support the new Museum Expansion
Posted: December 23, 2015 Filed under: Youth Camps | Tags: Philmont, Philmont Musuem, Philmont Scout Ranch, Tooth of Time Traders Leave a comment
|
||||
|
||||
|
||||
|
Youth Internships Available with the National Park Service
Posted: October 23, 2015 Filed under: Youth Camps, Zip Line | Tags: Interns, Internship, National Park Service, NPS Leave a commentFour national internship programs now accepting project proposals – DUE October 30
Please help distribute to others in your park that might be interested in applying
InsideNPS Article
http://inside.nps.gov/index.cfm?handler=viewnpsnewsarticle&type=Announcements&id=17861
The WASO Youth Programs Division is pleased to announce that four national internship programs (See below) are now accepting project proposals for the 2016 summer work season. These professional development internship programs provide quality work experiences for diverse individuals ages 18-35 in various fields across the NPS system. Project proposal applications are due COB Wednesday, October 30thfor most programs listed below.
National Youth Employment Programs:
Historically Black Colleges and Universities Internship Program (HBCUI): This program is designed to link college students attending Historically Black Colleges and Universities (HBCUs) to appointments at NPS sites and program offices. This program is administered by our nation NPS partner Greening Youth Foundation (GYF) (alex_tremble or 202-513-7159.
Latino Heritage Internship Program (LHIP): LHIP aims to provide meaningful work experiences to Latino students in the fields of cultural resources, interpretation, and outreach. LHIP is administered in partnership with the Hispanic Access Foundation (HAF) and the Environment for the Americas (EFTA). In addition to working on substantive NPS assignments, LHIP interns receive additional mentoring and support through HAF and EFTA. See more at Paloma_bolasny or 202-354-2174.
Mosaics in Science (MIS): The MIS Program provides youth under-represented in natural resource science career fields with meaningful, on-the-ground, work experience in the NPS. The program is administered by the Geologic Resources Division in collaboration with other Natural Resource Stewardship and Science (NRSS) Divisions and the Youth Programs Division. MIS positions are fully funded by the WASO Youth Programs Division. Parks and programs interested in applying for a MIS position must submit a position description by COB Sunday, November 1stat lisa_norby or 303-969-2318.
NPS Academy (NPSA): NPS Academy is an innovative, experiential learning program designed to introduce undergraduate and graduate students, ages 18-35, from under-represented communities to career opportunities with the National Park Service. Many of the interns attend a week-long orientation over spring break and serve in 12-week summer internships tailored to various NPS career tracks. Summer internships are available in a variety of fields, including visitor services, education, resource management – and many more (epoore) or Dave Barak (dbarak) for more information on the application process.
Ben Baldwin
Office of Interpretation, Education & Youth Engagement
Intermountain Regional Office
National Park Service
Federal Court in Texas upholds clause in release requiring plaintiff to pay defendants costs of defending against plaintiff’s claims.
Posted: October 19, 2015 Filed under: Health Club, Minors, Youth, Children, Release (pre-injury contract not to sue), Texas | Tags: Attorney Fees, Costs, Day Care, Fees, Fitness Center, Gross negligence, Life Time Fitness, Negligent Misrepresentation, Premises Liability, Release, Texas Leave a commentFitness contract included a release which included a clause stating the signor would pay the fitness companies defense costs. Court awarded those costs for defending against claims, which were dismissed by the court; Even though the plaintiff was successful in retaining two claims against the defendant.
McClure, et al., v. Life Time Fitness, Inc., 2014 U.S. Dist. LEXIS 167483
State: Texas
Plaintiff: Chase McClure, Misha McClure
Defendant: Life Time Fitness, Inc.
Plaintiff Claims: negligence, gross negligence, common law and statutory premises liability, and negligent misrepresentation claims
Defendant Defenses: Release
Holding: For the Plaintiff and the Defendant
Year: 2014
This is an interesting case, obviously because it is outside the normal outdoor recreation arena and involves a fitness center with a day care. The plaintiff signed up for the defendant fitness center. She arrived one time with her two-year-old son and informed the defendant fitness center employee that it was his first there. She informed the plaintiff that she would place her son in with the younger children.
Later, the plaintiff was told that her son had been injured and that 911 had been called. The facts surrounding the injury are vague, other than the plaintiff arrived to see a defendant day care worker holding ice on the child’s ear. The child later received five stitches in his ear.
There were several issues concerning the service of process on the defendant and eventually a removal to the Federal Court who resolved the issues finding ineffective service against the defendant in the state court claims.
The defendant then moved for summary judgment based on release and its counterclaims against the plaintiff for breach of the Member Usage Agreement.
Analysis: making sense of the law based on these facts.
The court first tackled the release and how whether it was effective against the claims of the plaintiff. Under Texas law, a release must satisfy the Fair Notice requirement.
Fair notice requires (1) that a party seeking to enforce a release provision comply with the express negligence doctrine and (2) that the provision be conspicuous. The express negligence doctrine requires a party releasing potential claims against another party for its negligence to express that intent in conspicuous and unambiguous terms in the four corners of the agreement. Conspicuousness requires the releasing language to be written and formatted so that a reasonable person in the position of the person against whom the release is to operate would notice it.
The plaintiff admitted the release met the fair notice requirements but under Texas law, the release could not stop her gross negligence claims. The court agreed.
Texas cases holding that waivers of negligence claims do not give fair notice of an intent to waive gross negligence claims, and the cases holding that preinjury releases of gross negligence claims are contrary to public policy, this court holds that the Member Usage Agreement Ms. McClure signed did not release Life Time Fitness from liability for her gross negligence claims, including the premise’s liability claim based on the Recreational Use Statute, which requires proof of gross negligence.
The court also found that the release failed to release the defendant from the plaintiff’s premises liability claims based on the Texas Recreational Use statute. Premise’s liability claims are based on ownership of the land; although the release in question seemed to cover the issue? No reasoning was given by the court for this decision.
The release did bar the plaintiff’s claims for “for negligence, negligent misrepresentation, and common law premise’s liability.”
The court next went over the issues surrounding whether a release under Texas law would stop claims of minors. The court found Texas law does not allow a release signed by a parent to stop those claims. “A preinjury release executed by a minor child’s parent is not enforceable to release claims against a commercial enterprise for the minor child’s injuries.”
The next issue was whether there was enough evidence to support any claims of the plaintiff. Here was a case where the plaintiff was never able to determine how the child was injured. Consequently, the plaintiff could not prove or provide any evidence of any negligence claims.
The McClures have not identified any evidence of a misrepresentation Life Time Fitness made to the child on which he did or could have reasonably relied. Summary judgment is granted on the child’s negligent misrepresentation claim.
The defendant then asked for the remaining claims of the child to be dismissed because there was no evidence to support any allegations made by the child to support his claims.
Life Time Fitness also seeks summary judgment on the child’s remaining claims, contending that it breached no duty owed to him and that no condition at the childcare facility posed an un-reasonable risk of harm.
The only evidence to support this claim was the plaintiff stated that any employee of the defendant had told the plaintiff here son had been injured in the play area designated for older children. This was sufficient to support this claim at this time. “Although the record is scant, it is sufficient to withstand summary judgment as to the child’s claims other than for negligent misrepresentation.”
The court then ruled on the counterclaim of the defendant. It seems like the motion was not answered by the plaintiff. The defendant then argued was a failure to deny, and they should be granted a default judgment. However, the court did not come to that same conclusion. The court then looked at the clause in the contract.
The clause in the release was entitled “Life Time’s Fees and Costs.”
This clause stated that if Ms. McClure asserted a negligence claim against Life Time Fitness, she would pay “all reasonable fees (including attorney’s fees), costs, and expenses incurred by Life Time (“Life Time’s Fees and Costs”) to defend (1) the Negligence Claim(s) and (2) all other Claims based on the same facts as the Negligence Claim(s).” Ms. McClure argues that she did not breach the Member Usage Agreement because she asserted claims for gross negligence.
Although the plaintiff was successful in two of her five claims, the court felt that she had breached the release and sued, therefore, the claims that were dismissed were enough to trigger fees and costs clause.
Life Time Fitness is entitled to the damages provided for in the Member Usage Agreement: the fees it reasonably incurred in defending solely against Ms. McClure’s claims for negligence, negligent misrepresentation, and common-law premises liability.
The court was specific in its ruling that the fees and costs to be paid by the plaintiff and awarded to the defendant were only the costs the defendant incurred in defending the three claims that were dismissed by the court.
Summary judgment is granted to Life Time Fitness on Ms. McClure’s claims for negligence, negligent misrepresentation, and common law premises liability to invitees. Summary judgment is denied on Ms. McClure’s claims for gross negligence and for premises liability under the Recreational Use Statute. Summary judgment is granted on the minor child’s negligent misrepresentation claim and otherwise denied. Life Time Fitness’s motion for summary judgment on its counterclaim is granted only for reasonable fees incurred in defending against Ms. McClure’s negligence, negligent misrepresentation, and common law premises liability claims, and is otherwise denied.
So the plaintiff was left with a gross negligence claim and a premises liability claim. Her son’s claim for negligent misrepresentation also survived, but barely.
So Now What?
Do Not Rely on this decision to believe that you can recover attorney fees when defending yourself in court when a release has been signed by the plaintiff. This is only the third time I have seen a case like this and there are 25 times more decisions denying these claims.
Most of these claims are struck down because the language is poor, and the case is similar to this forcing a parent to decide whether they should risk suing on behalf of their injured child. Other than this case, courts have uniformly denied those claims.
The two other cases I have found dealt with a skydiving where the plaintiff’s allegations were at a minimum quite wild and the other the plaintiff was an attorney. In both cases, it seemed the court found enough to hit the plaintiff with fees because the court did not like them.
You do not see any of the rancor or scorn in this case. It is a factual review of the facts, the release and a simple decision. You signed the agreement promising to pay if this happened, therefore, you must pay.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
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
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, Life Time Fitness, Fitness Center, Day Care, Texas, Release, Fees, Attorney Fees, Costs, Negligent Misrepresentation, Premises Liability, Gross Negligence,
Mcclure, et al., v. Life Time Fitness, Inc., 2014 U.S. Dist. LEXIS 167483
Posted: October 18, 2015 Filed under: Health Club, Legal Case, Minors, Youth, Children, Release (pre-injury contract not to sue), Texas | Tags: Day Care, Fitness Center, Life Time Fitness, Release, Texas Leave a commentMcclure, et al., v. Life Time Fitness, Inc., 2014 U.S. Dist. LEXIS 167483
C. Mcclure, et al., Plaintiffs, vs. Life Time Fitness, Inc., Defendant.
CIVIL ACTION NO. H-13-1794
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION
2014 U.S. Dist. LEXIS 167483
December 3, 2014, Decided
December 3, 2014, Filed
PRIOR HISTORY: McClure v. Life Time Fitness, Inc., 2014 U.S. Dist. LEXIS 25810 (S.D. Tex., Feb. 28, 2014)
COUNSEL: [*1] For Chase McClure, Misha McClure, Individually and as Guardian of Chase McClure, Plaintiffs: Brennen Dunn, LEAD ATTORNEY, Citizen Legal, PLLC, Houston, TX.
For Life Time Fitness, Inc., Defendant: John G Browning, Lewis Brisbois Bisgaard & Smith LLP, Dallas, TX.
JUDGES: Lee H. Rosenthal, United States District Judge.
OPINION BY: Lee H. Rosenthal
OPINION
MEMORANDUM AND OPINION
This is a personal injury suit filed by Misha McClure for herself and on behalf of her minor son, who was injured in July 2012 in the childcare area at a Life Time Fitness center in Humble, Texas. Ms. McClure asserted negligence, gross negligence, common law and statutory premises liability, and negligent misrepresentation claims. Life Time Fitness moved for summary judgment, arguing that the claims are barred by a release Ms. McClure signed when she joined the center. (Docket Entry No. 28).
Based on the pleadings, the motion and response, the parties’ submissions, and the applicable law, this court grants the motion in part and denies it in part. Specifically, the court grants Life Time Fitness’s motion for summary judgment dismissing Ms. McClure’s claims for negligence, common-law premises liability, and negligent misrepresentation, and denies [*2] the motion as to her gross negligence and statutory premises liability claims. The court grants Life Time Fitness’s summary judgment motion as to the minor child’s negligent misrepresentation claim and otherwise denies the motion. Finally, the court grants Life Time Fitness’s motion for summary judgment on its counterclaim for fees incurred in defending against Ms. McClure’s claims other than for gross negligence and for statutory premises liability, and otherwise denies the motion. The reasons for these rulings are explained below.
I. Background
Ms. McClure went to the Life Time Fitness center in Humble on July 28, 2012 for a personal-training session. She left her two-year-old son at the childcare area in the center, telling a childcare employee her son’s age and explaining that it was his first time there. The employee told Ms. McClure that her son would be in an area for younger children. Thirty minutes later, a Life Time Fitness manager interrupted Ms. McClure’s training session to tell her that her son had been in an accident in the older children’s play area and that 911 had been called. Ms. McClure found her son with a Life Time Fitness childcare manager who was holding an ice [*3] pack on the child’s ear. When the ice pack was removed, Ms. McClure saw that the child was missing a piece of his ear. He received five stitches.
When Ms. McClure joined Life Time Fitness, she signed a Member Usage Agreement. The Member Usage Agreement contained sections headed “ASSUMPTION OF RISK” and “WAIVER OF LIABILITY.” The relevant parts read as follows:
ASSUMPTION OF RISK. I understand that there are inherent dangers, hazards, and risks of injury or damage in the use of Life Time’s premises, facilities, equipment, services, activities or products, whether available through membership dues or a separate fee.
I understand that the Risk and Injuries in the Use of Life Time Premises and Services (collectively, “Risks of Injury”) may be caused, in whole or in part, by the NEGLIGENCE OF LIFE TIME, me, Minor Member(s), Other Member(s), Guest(s) and/or other persons. [I] FULLY UNDERSTAND, AND VOLUNTARILY AND WILLINGLY ASSUME, THE RISKS OF INJURY.
WAIVER OF LIABILITY. On behalf of myself and my spouse/partner, children/Minor Members, Other Members, Guests, parents, guardians, heirs, next of kin, personal representatives, heirs and assigns, I hereby voluntarily and forever release and discharge [*4] Life Time from, covenant and agree not to sue Life Time for, and waive, any claims, demands, actions, causes of action, debts, damages, losses, costs, fees, expenses or any other alleged liabilities or obligations of any kind or nature, whether known or unknown (collectively, “Claims”) for any Injuries to me, Minor Member(s), Other Member(s), or Guest(s) in the Use of Life Time Premises and Services which arise out of, result from, or are caused by any NEGLIGENCE OF LIFE TIME, me, any Minor Member(s), any Other Member(s), any Guest(s), and/or any other person . . . (collectively, “Negligence Claims”).
A. Negligence Claims. I understand that Negligence Claims include but are not limited to Life Time’s (1) negligent design, construction (including renovation and alteration), repair maintenance, operation, supervision, monitoring, or provision of Life Time Premises and Services; (2) negligent failure to warn of or remove a hazardous, unsafe, dangerous or defective condition; (3) negligent failure to provide or keep premises in a reasonably safe condition; (4) negligent provision or failure to provide emergency care; (5) negligent provision of services; and (6) negligent hiring, selection, [*5] training, instruction, certification, supervision or retention of employees, independent contractors or volunteers; or (7) other negligent act(s) or omission(s).
B. Life Time’s Fees and Costs. I specifically agree that, if I (on my own behalf or on behalf of another, including an estate) assert a Negligence Claim against Life Time and/or breach my agreement not to sue Life Time, I will pay all reasonable fees (including attorneys’ fees), costs and expenses incurred by Life Time (“Life Time’s Fees and Costs”) to defend (1) the Negligence Claim(s) and (2) all other Claims based on the same facts as the Negligence Claim(s).
The agreement also contained a section headed “PARENT OR GUARDIAN AGREEMENT.” This section stated:
If I am the parent or legal guardian of a Minor Member, I acknowledge and represent to Life Time that I have the right and authority to make decisions concerning the care, custody and control of each Minor Member, including but not limited to the right and authority to execute this MUA on the Minor Member’s behalf. By signing this MUA, I am binding each of my Minor Member(s) to its terms, including but not limited to the ASSUMPTION OF RISK [and] WAIVER OF LIABILITY . . . [*6] provisions.
The following text appeared directly above the signature line:
I HAVE READ, UNDERSTOOD, RECEIVED A COPY OF, AND AGREE TO ALL TERMS AND CONDITIONS OF THIS MUA, INCLUDING SPECIFICALLY THE ASSUMPTION OF RISK, WAIVER OF LIABILITY AND DEFENSE AND INDEMNIFICATION PROVISIONS UNDER WHICH I AM RELINQUISHING LEGAL RIGHTS.
Ms. McClure’s state-court petition alleged that Life Time Fitness negligently allowed her son to play in an area designated for older children. The petition alleged that in addition to the ear injury, which was treated with five stitches, the incident left him unable or unwilling to participate in certain activities and afraid to be in a new childcare facility. (Docket Entry No. 1, Ex. 2 at 2). Life Time Fitness did not file an answer within the period set by the Texas rules.
In April 2013, the state-court judge granted the McClures’ motion for a no-answer default judgment against Life Time Fitness. Life Time Fitness removed the lawsuit to federal court in June 2013 and challenged the service of process and the no-answer default judgment. This court vacated the state-court default judgment in February 2014, finding that the service was defective and that entry of the [*7] no-answer default judgment was therefore void. Life Time Fitness then filed an answer and counterclaimed against Ms. McClure for breach of the Member Usage Agreement. (Docket Entry No. 21).
Life Time Fitness has moved for summary judgment, contending that the McClures’ claims are barred by the release contained in the Member Usage Agreement and are unsupported by the evidence. Life Time Fitness also moved for summary judgment on its breach-of-contract counterclaim against Ms. McClure. Ms. McClure contends that the release does not bar her claims, that the summary-judgment evidence supports recovery for both her and her son, and that she did not breach the Member Usage Agreement. Each argument and response is analyzed below.
II. The Applicable Legal Standards
A. Summary Judgment
[HN1] Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). [HN2] “The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
[HN3] If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial burden by “‘showing’ [*8] — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” See Celotex, 477 U.S. at 325. While the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant’s case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (citation omitted). “A fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.” Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009) (quotation omitted). “If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant’s response.” United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir. 2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
[HN4] When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings. The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party’s claim. Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir. 2007). “This burden will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.'” Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075). In deciding a summary judgment motion, the court draws all reasonable inferences [*9] in the light most favorable to the nonmoving party. Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008).
III. Analysis
A. The Timeliness of the McClures’ Response to Life Time Fitness’s Summary Judgment Motion
Life Time Fitness argues that the court should disregard the McClures’ response to the summary judgment motion because it was filed after the deadline to respond and without leave of court. (Docket Entry No. 30 at 2). The summary judgment motion was filed on September 12, 2014. (Docket Entry No. 28). The response was filed on October 13, 2014, ten days after it was due. (Docket Entry No. 29). Because the delay was not extensive, there is no prejudice to Life Time Fitness. Because [HN5] a decision on the basis of default is disfavored, the court considers the McClures’ response on the merits.
B. The Waiver and Release
The waiver and release contained in the Member Usage Agreement stated that the signer waived any claims for injuries to herself or to her minor children resulting from Life Time Fitness’s negligence. (Docket Entry No. 28). [HN6] Texas imposes a fair notice requirement on preinjury releases. See Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508-09 (Tex. 1993). A release that fails to satisfy the fair notice requirement is unenforceable as a matter of law. Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004). Fair notice requires (1) that a party [*10] seeking to enforce a release provision comply with the express negligence doctrine and (2) that the provision be conspicuous. Id. The express negligence doctrine requires a party releasing potential claims against another party for its negligence to express that intent in conspicuous and unambiguous terms in the four corners of the agreement. Id. Conspicuousness requires the releasing language to be written and formatted so that a reasonable person in the position of the person against whom the release is to operate would notice it. Id.; Dresser, 853 S.W.2d at 508.
Ms. McClure agrees that the waiver and release provisions of the Member Usage Agreement meet the Texas fair notice requirements, but argues that the provisions do not cover her gross negligence claims. (Docket Entry No. 29 at 2). [HN7] Several Texas appellate courts have held that preinjury releases of gross negligence claims violate public policy. See Van Voris v. Team Chop Shop, LLC, 402 S.W.3d 915, 924-25 (Tex. App. — Dallas 2013, no pet.); Sydlik v. REEIII, Inc., 195 S.W.3d 329, 336 (Tex. App. — Houston [14th Dist.] 2006, no writ); Smith v. Golden Triangle Raceway, 708 S.W.2d 574, 576 (Tex. App. — Beaumont 1986, no writ); accord Memorial Med. Ctr. of East Texas v. Keszler, M.D., 943 S.W.2d 433 (Tex. 1997) (citing Golden Triangle Raceway, 708 S.W.2d at 576). Other Texas appellate courts have held that when a preinjury waiver releases claims for “negligence,” claims for gross negligence are not waived. See Del Carmen Canas v. Centerpoint Energy Res. Corp., 418 S.W.3d 312, 326-27 (Tex. App. — Houston [14th Dist.] 2013, no pet.); [*11] Akin v. Bally Total Fitness Corp., No. 10-05-00280-CV, 2007 Tex. App. LEXIS 1218, 2007 WL 475406, at *3 (Tex. App. — Waco Feb. 14, 2007, pet. denied); Rosen v. Nat’l Hot Rod Ass’n, No. 14-94-00775-CV, 1995 Tex. App. LEXIS 3225, 1995 WL 755712, at *7 n. 1 (Tex. App. — Houston [14th Dist.] Dec. 21, 1995, writ denied). In Newman v. Tropical Visions, Inc., the Texas Court of Appeals for San Antonio held to the contrary, finding that the plaintiff’s preinjury waiver of negligence claims also barred its gross negligence claims. Newman v. Tropical Visions, Inc., 891 S.W.2d 713, 722 (Tex. App. — San Antonio 1994, writ denied); see also Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 127 (Tex. App. — Houston [1st Dist.] 2002, pet. denied) (finding Newman persuasive). The court noted that the plaintiff had not raised the express negligence rule in its pleadings, and the court emphasized that its opinion did not address or take a position on whether a preinjury waiver of gross negligence claims violated public policy. Id.
The Texas Supreme Court has not ruled on this issue. The guidance the Texas appellate court case law provides, however, gives a reliable basis for making an Erie prediction about how the Supreme Court would rule if faced with the question. [HN8] “When making an Erie-guess in the absence of explicit guidance from the state courts, [this court] must attempt to predict state law, not to create or modify it.” Assoc. Inter. Ins. Co. v. Blythe, 286 F.3d 780, 783 (5th Cir. 2002) (citation omitted). Based on the [HN9] Texas cases holding that waivers [*12] of negligence claims do not give fair notice of an intent to waive gross negligence claims, and the cases holding that preinjury releases of gross negligence claims are contrary to public policy, this court holds that the Member Usage Agreement Ms. McClure signed did not release Life Time Fitness from liability for her gross negligence claims, including [HN10] the premises liability claim based on the Recreational Use Statute, which requires proof of gross negligence. See Tex. Civ. Prac. & Rem. Code §§ 75.002(c)-(d), 101.058; State v. Shumake, 199 S.W.3d 279, 289 (Tex. 2006).
By contrast, Ms. McClure’s claims for negligence, negligent misrepresentation, and common law premises liability to invitees fall within the scope of the waiver and release. Summary judgment is granted on these claims but denied as to Ms. McClure’s gross negligence and statutory premises liability claims.
Life Time Fitness also argued that the child’s claims were barred by the waiver and release Ms. McClure signed. [HN11] A preinjury release executed by a minor child’s parent is not enforceable to release claims against a commercial enterprise for the minor child’s injuries. See Paz v. Life Time Fitness, Inc., 757 F. Supp. 2d 658 (S.D. Tex. 2010) (making an Erie prediction); Munoz v. II Jaz Inc., 863 S.W.2d 207 (Tex. App. — Houston [14th Dist.] 1993, no writ). The child’s claims are not barred on this [*13] basis.
B. The Sufficiency of the Evidence
Life Time Fitness also moves for summary judgment on the basis that there is no evidence to support either Ms. McClure’s or her child’s claims.
Life Time Fitness contends that the child, who was two years old at the time, was too young to rely on any statement made by Life Time Fitness and therefore cannot prevail on a negligent misrepresentation claim. (Docket Entry No. 23). In response, Ms. McClure argues that her own reliance should be imputed to her son. (Docket Entry No. 29 at 4-5). [HN12] Although one party’s knowledge of a misrepresentation may be imputed to another under certain circumstances, none of which are present here, Texas courts do not recognize a theory of imputed or vicarious reliance. Grant Thornton LLP v. Prospect High Income Fund, 314 S.W.3d 913, 924 (Tex. 2010) (in the context of an agency relationship). The McClures have not identified any evidence of a misrepresentation Life Time Fitness made to the child on which he did or could have reasonably relied. Summary judgment is granted on the child’s negligent misrepresentation claim.
Life Time Fitness also seeks summary judgment on the child’s remaining claims, contending that it breached no duty owed to him and that no condition at the childcare facility posed [*14] an unreasonable risk of harm. The McClures did not specifically respond to the motion for summary judgment on these claims. (Docket Entry No. 29). In their pleadings, the McClures alleged that Life Time Fitness failed to provide a safe childcare area. (Docket Entry No. 23). The summary judgment evidence in the record is Ms. McClure’s affidavit and the Member Usage Agreement she signed. In her affidavit, Ms. McClure states that there was an injury involving her son and she was told by an unnamed employee that he was injured in a play area designated for children above his age. (Docket Entry No. 29, Ex. 2). Although the record is scant, it is sufficient to withstand summary judgment as to the child’s claims other than for negligent misrepresentation.
C. Life Time Fitness’s Counterclaims
Life Time Fitness moves for summary judgment on its breach-of-contract counterclaim against Ms. McClure. Life Time Fitness first argues that because Ms. McClure answered with only a general denial, the counterclaim allegations should be deemed admitted. (Docket Entry No. 28 at 8). [HN13] “General denials are uncommon in federal court because ‘situations in which the complaint can be completely controverted are [*15] quite rare.'” Mary Kay, Inc. v. Dunlap, 2012 U.S. Dist. LEXIS 86499, 2012 WL 2358082, at *7 (N.D. Tex. June 21, 2012) (quoting 5 Wright & Miller § 1265, at 549). Life Time Fitness argues that by filing a general denial, Ms. McClure was “admitting the operative facts” of the counterclaim. Life Time Fitness seeks summary judgment on this basis.
[HN14] “As directed by Rule 8 [of the Federal Rules of Civil Procedure], the answer should contain only two things: (1) a response (admitting, denying, or claiming insufficient knowledge) to the averments in the complaint; and (2) a statement of all affirmative defenses.” Software Publishers Ass’n v. Scott & Scott, LLP, 2007 U.S. Dist. LEXIS 59814, 2007 WL 2325585, at *2 n. 4 (N.D. Tex. Aug.15, 2007) (citing Fed. R. Civ. P. 8(b)-(c)). “A party that intends in good faith to deny all the allegations of a pleadings — including the jurisdictional grounds — may do so by a general denial.” Fed. R. Civ. P. 8(b)(3). “A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.” Id.
[HN15] “Granting summary judgment when a party fails to respond to the opposing party’s summary judgment motion is comparable to granting a default judgment.” Tolliver v. Liberty Mut. Fire Ins. Co., No. 2:06-0904, 2008 U.S. Dist. LEXIS 18839, 2008 WL 545018, at *1 (S.D. Ohio Feb. 25, 2008). “‘A party is not entitled to a default judgment as a matter of right, even where the defendant is technically [*16] in default.'” McCarty v. Zapata County, 243 F. App’x 792, 794 (5th Cir. 2007) (per curiam) (quoting Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001)). Default judgment is a drastic remedy that should be granted only in extreme situations. Warren v. Johnson, 244 F. App’x 570, 571 (5th Cir. 2007) (per curiam) (citing Lewis, 236 F.3d at 767). Life Time Fitness has not shown such an extreme situation. Life Time Fitness’s motion for summary judgment on its counterclaim will be considered on the merits.
The Member Usage Agreement Ms. McClure signed when she joined Life Time Fitness contained a clause headed “Life Time’s Fees and Costs.” This clause stated that if Ms. McClure asserted a negligence claim against Life Time Fitness, she would pay “all reasonable fees (including attorney’s fees), costs, and expenses incurred by Life Time (“Life Time’s Fees and Costs”) to defend (1) the Negligence Claim(s) and (2) all other Claims based on the same facts as the Negligence Claim(s).” Ms. McClure argues that she did not breach the Member Usage Agreement because she asserted claims for gross negligence.
As discussed above, although Ms. McClure’s claims for gross negligence and premises liability under the Recreational Use Statute are not barred by the waiver and release, her remaining claims are barred. Ms. McClure asserted claims against Life Time Fitness for negligence, negligent misrepresentation, [*17] and common law premises liability to invitees, despite agreeing that she would not do so. Life Time Fitness is entitled to the damages provided for in the Member Usage Agreement: the fees it reasonably incurred in defending solely against Ms. McClure’s claims for negligence, negligent misrepresentation, and common-law premises liability. Life Time Fitness is not entitled to any fees incurred in defending against the child’s claims, which were not waived by the Member Use Agreement. Nor is Life Time Fitness entitled to any fees incurred to defend against Ms. McClure’s claims for gross negligence and for statutory premises liability. The only fees at issue are those that Life Time Fitness would have incurred had Ms. McClure asserted only the claims waived by the release.
IV. Conclusion
Summary judgment is granted to Life Time Fitness on Ms. McClure’s claims for negligence, negligent misrepresentation, and common law premises liability to invitees. Summary judgment is denied on Ms. McClure’s claims for gross negligence and for premises liability under the Recreational Use Statute. Summary judgment is granted on the minor child’s negligent misrepresentation claim and otherwise denied. Life [*18] Time Fitness’s motion for summary judgment on its counterclaim is granted only for reasonable fees incurred in defending against Ms. McClure’s negligence, negligent misrepresentation, and common law premises liability claims, and is otherwise denied.
SIGNED on December 3, 2014, at Houston, Texas.
/s/ Lee H. Rosenthal
Lee H. Rosenthal
United States District Judge
Its Time to Get Up to Speed Donate a Little Money and start anticipating Avalanche Reports
Posted: October 6, 2015 Filed under: Youth Camps, Zip Line | Tags: x, y, z Leave a comment
|
||||||||||||||||||||||||||||||||||||||||||||||||||||
Recreation Law 