It is not a perfect world and perfection is not required of camp counselors in New York.

The camp counselor’s reaction when a large camper jumped on his back was not negligence. The injury the plaintiff received was from his own actions, not from the horseplay of others.

Gibbud et al., v Camp Shane, Inc., 30 A.D.3d 865; 817 N.Y.S.2d 435; 2006 N.Y. App. Div. LEXIS 8254; 2006 NY Slip Op 5075

State: New York, Supreme Court of New York, Appellate Division, Third Department

Plaintiff: Benjamin W. Gibbud, an Infant, by Melissa H. Gibbud, His Parent, et al.,

Defendant: Camp Shane, Inc.

Plaintiff Claims: Negligence and Negligent Supervision

Defendant Defenses: No negligence

Holding: For the defendant

Year: 2006

This is a simple case. When a large, almost as large as the counselor, camper jumps on the counselor’s back, the counselor’s reaction as long as not overly violent or extreme, is not negligence.

In this case it was raining and the counselor and campers were in their cabin. The campers were baiting one another and one camper who was only 20 pounds lighter than the 335 counselor and one inch taller jumped on the counselor’s back. The counselor shrugged him off and either the camper hit the ground breaking his ankle or broke his ankle when the counselor shoved the camper.

The camper and his mother sued. The trial court granted the defendant summary judgment and the plaintiff’s appealed.

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

The court set out the various New York Laws affecting this case. New York law states the duty of care owed children by persons supervising them is one “is that which a reasonably prudent parent would observe under comparable circumstances.”

Horseplay is always found around groups of kids and is associated with camps. Horseplay is “only to be discouraged when it becomes dangerous.”

Moreover, a parent, teacher or other person entrusted [*867]  with the care or supervision of a child may use such physical force as he or she reasonably believes to be necessary to maintain control and discipline

Moreover the court found the horse play which preceded the event giving rise to the injury of the plaintiff had nothing to do with the plaintiff getting injured. Horseplay was not the cause of the plaintiff’s injury. The case of the plaintiff’s injury was the plaintiff jumping on the back of the counselor, “it was the manner in which he did so, his own impulsive and reckless act of grabbing Wendorf [the counselor] from behind, that led to his injury.”

Given that Wendorf did not know who had suddenly jumped on his back, his reaction to being blindsided and having his arms pinned to his sides in a bear hug by the physically imposing plaintiff raises no issue of his inappropriate or unreasonable use of force.

The court found there was no duty or breach of duty and also found that the injury was not a result of any alleged breach of duty. Three of the four requirements to prove negligence were not met. The decision of the trial court was upheld.

So Now What?

It is also nice to see a case where common sense is obvious in the reasoning of the case. Kids will be kids and whenever there is a group of kids, there will be fooling around. Until the kidding and horse play get dangerous, there is no duty in New York to stop it.

On top of that, when you participate in horse play and get hurt, you can’t blame anyone but yourself.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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Gibbud et al., v Camp Shane, Inc., 30 A.D.3d 865; 817 N.Y.S.2d 435; 2006 N.Y. App. Div. LEXIS 8254; 2006 NY Slip Op 5075

Gibbud et al., v Camp Shane, Inc., 30 A.D.3d 865; 817 N.Y.S.2d 435; 2006 N.Y. App. Div. LEXIS 8254; 2006 NY Slip Op 5075

Benjamin W. Gibbud, an Infant, by Melissa H. Gibbud, His Parent, et al., Appellants, v Camp Shane, Inc., Respondent.

99126

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

30 A.D.3d 865; 817 N.Y.S.2d 435; 2006 N.Y. App. Div. LEXIS 8254; 2006 NY Slip Op 5075

June 22, 2006, Decided

June 22, 2006, Entered

Mercure, J.P., Peters, Spain and Kane, JJ., concur. Ordered that the order and judgment are affirmed, with costs.

COUNSEL: Keegan, Keegan & Strutt, L.L.P., White Plains (Barry R. Strutt of counsel), for appellants.

Gordon & Silber, P.C., New York City (Andrew B. Kaufman of counsel), for respondent.

JUDGES: Before: Mercure, J.P., Peters, Spain, Rose and Kane, JJ. Mercure, J.P., Peters, Spain and Kane, JJ., concur.

OPINION BY: Rose

OPINION

[*865] [**436] Rose, J. Appeals (1) from an order of the Supreme Court (Clemente, J.), entered March 9, 2005 in Sullivan County, which granted defendant’s motion for summary judgment dismissing the complaint, and (2) from the judgment entered thereon.

[*866] After being told that he and his bunkmates could “sleep in” one rainy morning at defendant’s summer camp, 15-year-old plaintiff Benjamin W. Gibbud (hereinafter plaintiff) fractured his right ankle when he attempted to engage in horseplay in his cabin by jumping on his counselor’s back. Alleging negligent supervision, plaintiff and his mother commenced this action against defendant. When defendant moved [***2] for summary dismissal of the complaint, Supreme Court granted the motion, finding, among other things, that defendant’s counselor was not shown to have been negligent. Plaintiffs appeal, and we affirm.

At the time of the incident, plaintiff was 6 feet 3 inches and weighed 302 pounds. Alex Wendorf, plaintiff’s cabin counselor, was 21 years old, 6 feet 2 inches and weighed 335 pounds. When another camper, Noah Zilberstein, tried to goad Wendorf into a wrestling match by snapping a rat-tailed bath towel at him, Wendorf grabbed the towel out of Zilberstein’s hand. In his deposition, plaintiff described the encounter between Wendorf and Zilberstein as “just horsing around,” which he later explained as “pushing back and forth” or “trying to grab each other.” Zilberstein then tried to induce the other campers in the cabin to join in and “get” Wendorf. Out of a dozen or so campers, [**437] plaintiff was the only one who responded. Approaching Wendorf from behind, he jumped on Wendorf’s back and grabbed him in a bear hug, pinning Wendorf’s arms to his sides. Wendorf immediately raised his arms, shrugging plaintiff off, and pivoted to see who it was. According to Wendorf and Zilberstein, [***3] plaintiff slid off Wendorf’s back and fell to the floor. Plaintiff’s own account is that Wendorf turned, grabbed him and “started to force [him] down to the ground.” In either event, plaintiff’s foot struck the floor in such a way as to fracture his ankle.

Plaintiffs contend that Supreme Court improperly discredited plaintiff’s account in finding no questions of fact as to whether Wendorf had acted negligently immediately before and after plaintiff jumped on his back. We disagree. [HN1] While the duty of care owed by persons supervising children in a summer camp setting is that which a reasonably prudent parent would observe under comparable circumstances (see Douglas v John Hus Moravian Church of Brooklyn, Inc., 8 AD3d 327, 328, 778 NYS2d 77 [2004]; Gustin v Association of Camps Farthest Out, 267 AD2d 1001, 1002, 700 NYS2d 327 [1999]), “[a] certain amount of horseplay is almost always to be found in gatherings of young people, and is generally associated with children’s camps. It is only to be discouraged when it becomes dangerous” (Kosok v Young Men’s Christian Assn. of Greater N.Y., 24 AD2d 113, 115, 264 NYS2d 123 [1965], affd 19 NY2d 935, 228 NE2d 398, 281 NYS2d 341 [1967]). [***4] Moreover, [HN2] a parent, teacher or other person entrusted [*867] with the care or supervision of a child may use such physical force as he or she reasonably believes to be necessary to maintain control and discipline (see Sindle v New York City Tr. Auth., 33 NY2d 293, 297, 307 NE2d 245, 352 NYS2d 183 [1973]; Matter of Collin H., 28 AD3d 806, 28 AD3d 806, 812 NYS2d 702 [2006]; see also Restatement [Second] of Torts § 147).

Viewing the record in a light most favorable to plaintiffs and accepting plaintiff’s account, we find no factual basis to conclude that Wendorf’s responses to either Zilberstein’s rat-tailing or having been set upon from behind by plaintiff were negligent. Despite plaintiffs’ argument to the contrary, the admissible evidence fails to show that Wendorf’s efforts to quell horseplay by Zilberstein were negligent. In any event, that conduct was not the proximate cause of plaintiff’s injury. While Zilberstein’s interaction with Wendorf may have furnished the occasion for plaintiff to decide to leave his bunk and join in, it was the manner in which he did so, his own impulsive and reckless act of grabbing Wendorf from behind, that led to his [***5] injury (see Lee v New York City Hous. Auth., 25 AD3d 214, 219, 803 NYS2d 538 [2005], lv denied 6 NY3d 708, 812 NYS2d 443, 845 NE2d 1274 [2006]; Loder v Greco, 5 AD3d 978, 979, 774 NYS2d 231 [2004]; Ascher v Scarsdale School Dist., 267 AD2d 339, 339, 700 NYS2d 210 [1999]. Given that Wendorf did not know who had suddenly jumped on his back, his reaction to being blindsided and having his arms pinned to his sides in a bear hug by the physically imposing plaintiff raises no issue of his inappropriate or unreasonable use of force. By plaintiff’s own account, Wendorf merely turned, grabbed him and pushed him down. Under these circumstances, we can draw no inference of negligence (compare Gonzalez v City of New York, 286 AD2d 706, 707-708, 730 NYS2d 154 [2001]).

Mercure, J.P., Peters, Spain and Kane, JJ., concur. ORDERED that the order and judgment are affirmed, with costs.


The assumption of risk defense is still available when the claim is based on a condition of the land. This defense is called the open and obvious doctrine.

A landowner must protect invitees from hidden dangers. If the danger could have been seen or was seen, then it is open and obvious and the landowner must not protect the invitees from the danger.

Watkins, Jr., v St. Francis Camp on the Lake, 2010 Mich. App. LEXIS 1814

State: Michigan, Court of Appeals of Michigan

Plaintiff: Robert Vincent Watkins, Jr.

Defendant: St. Francis Camp on the Lake

Plaintiff Claims:

Defendant Defenses: Open and Obvious defect in the land

Holding: For the defendant

Year: 2010

The plaintiff was attending the defendant camp. The camp was run for people with special needs. The plaintiff suffered from cerebral palsy and was a quadriplegic. At the time of the accident, the plaintiff was 34 years old.

At the camp, a water slide was created. The slide was a 100’ long tarp, 20’ wide and placed upon a hill. Water was prayed on the tarp along with soap. Some of the campers used inner tubes on the slide; others just went down on the buttocks.  

At the bottom was a little ditch, 2.5’ long 2’ wide and 12-18” deep. The ditch had mud and water in it. When someone going down slide hit the ditch it would flip them.

On the day before the incident, the plaintiff had gone down the slide four or five times. He would ride down the hill on an inner tube with a camp counselor in an inner tube behind the plaintiff. After each ride, the plaintiff and tubes would be loaded on a golf cart and taken to the top of the hill.

The second day the plaintiff was injured on the slide during the flip, injuring his foot. He had already gone down the slide twice before his injury.

The plaintiff sued for his injuries. The trial court dismissed the plaintiff’s complaint, and the plaintiff appealed.

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

The basis for the dismissal was the condition of the land that caused the plaintiff’s injuries was open and obvious. The plaintiff argued that this was a case not based upon the land but based upon the actions of the defendant. The actions of the defendant would set up a negligence claim. A claim based upon the condition of the land would be determined on the duty owed by the landowner to the plaintiff as an invitee.

Under Michigan’s law, the duty owed by a landowner to an invite was:

Generally, a premises possessor owes a duty of care to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land. This duty generally does not encompass a duty to protect an invitee from “open and obvious” dangers. However, if there are “special aspects” of a condition that make even an “open and obvious” danger “unreasonably dangerous,” the premises possessor maintains a duty to undertake reasonable precautions to protect invitees from such danger.

The appellate court also found the claims rose from the land; therefore, the liability was from the relationship between the landowner and the plaintiff-invitee.

That is, the question was whether defendant had a duty as the owner of the land to protect plaintiff from harm and thus provide a water slide activity that was free from danger by not allowing a ditch at the bottom of the slide to exist, which propelled participants into the air.

Even if actions of the defendants contributed to the injury it was not enough to alter the relationship to create a negligence claim.

Consequently, although some alleged conduct on the part of defendant may have been involved-i.e. failing to protect plaintiff from harm, allowing the ditch to form, and/or failing to train staff to recognize the danger involved in allowing participants to hit the ditch and be propelled into the air-this does not change the fact that, as a matter of law, this negligence claim was based on premises liability law.

Because the condition was open and obvious, one that the plaintiff knew about normally because they could have or should have seen it and in this case did see it and did encounter it, there was no liability owed by the landowner-defendant.

Plaintiff argued that because the counselor’s did not recognize the danger, the danger could not be open and obvious.  

However, simply because one counselor did not see any danger in operating the slide (all the evidence pointed to the conclusion that all campers enjoyed the slide) does not result in a conclusion that an average user of ordinary intelligence would not have been able to discover the danger and the risk presented upon casual inspection by going down a water slide, hitting the ditch, and flipping into the air.

Evidence of prior injuries would be needed to convert the actions of the counselors from that of a landowner to simple defendants. If the counselors kept the slide open after a person had been injured and then the plaintiff received his injury, then the open and oblivious claim may not work.

This argument fails for the simple reason that in a premises liability action when determining whether a condition is open and obvious, “the fact-finder must consider the ‘condition of the premises,’ not the condition of the plaintiff.”

The appellate court affirmed the dismissal of the case by the trial court.

So Now What?

In this specific case, you can look at the open and obvious defense as similar to the defense of assumption of the risk.

More importantly always examine every possible defense when you are faced with a suit. Here, the answer was easy, although having campers launched into the air may not provide an open and obvious defense in all states.

If you are a camp or landowner, what you need to constantly be aware of and even search for are the non-open and obvious dangers on the land. Those things that cannot be seen by casual observation or that should have been seen by observation are what will hold you liable.

What do you think? Leave a comment.

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Watkins, Jr., v St. Francis Camp on the Lake, 2010 Mich. App. Lexis 1814

Watkins, Jr., v St. Francis Camp on the Lake, 2010 Mich. App. Lexis 1814

Robert Vincent Watkins, Jr., Plaintiff-Appellant, v St. Francis camp on the lake, Defendant-Appellee.

No. 292578

Court of Appeals of Michigan

2010 Mich. App. LEXIS 1814

September 28, 2010, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

PRIOR HISTORY: [*1]

Hillsdale Circuit Court. LC No. 08-000601-NI.

CORE TERMS: water slide, ditch, camper, slide, went down, premises liability, amend, times, counselor, tube, matter of law, nuisance, flipped, invitee, futile, hit, air, obvious danger, pleaded, bottom, rolled, feet, leave to amend, physical condition, duty to protect, duty of care, liability case, liability claim, dangerous condition, ordinary intelligence

JUDGES: Before: MURPHY, C.J., and SAWYER and MURRAY, JJ. MURPHY, C.J. (concurring).

OPINION

PER CURIAM.

Plaintiff Robert Watkins, Jr., appeals by leave granted the trial court’s June 1, 2009, order granting defendant summary disposition, and its order denying his motion to amend. We affirm.

I. FACTS

Plaintiff, who is disabled, was injured using a water slide at a summer camp that defendant St. Francis Camp on the Lake runs for people with special needs. Plaintiff, who suffers from cerebral palsy and is confined to a wheelchair because he is a quadriplegic, was approximately 34 years old at the time of the accident and was living with his parents. At the time of the accident, plaintiff was employed at the Roscommon county courthouse as a mail clerk, where he worked for the previous 15 years for about 20 hours per week. Plaintiff did not have a legal guardian.

A water slide was at the camp. The water slide consisted of a tarp, which was approximately 100 feet long and 20 feet wide, placed on a hill. Water was then sprayed onto the tarp and soap was put onto the campers so that the campers would slide down the tarp faster. Some of the campers would use inner tubes [*2] when going down the hill and some would slide down the hill on their buttocks. At the bottom of the slide was a “little ditch,” which was approximately two and one-half feet long, two feet wide, and 12 to 18 inches deep. There was water and mud in the ditch, and if a camper hit the ditch when sliding down the hill, which “pretty much everybody hit the ditch,” the camper would flip.

Robert Seger was a camp counselor while plaintiff was at the camp. Seger indicated that the camp basically “let the campers decide what they feel they can and can’t do. They try not to place any limitations on anybody. They want them to have the best experience possible there.” Camp counselors kept notes throughout the week about the campers. Seger’s notes about plaintiff reflected, “July 15th, Sunday. Robert W. excited to be at the new camp. Very happy and pleasant all day. Likes to try new things and is determined to do as much as he can do on his own.” Seger’s notes also reflected, “July 17th, Tuesday. Robert W. says he really likes the camp. The best one he has been to. Took him on the slip and slide. He does not let his physical limitations stop him from trying anything new. He loves the water slide.” [*3] 1

1 Plaintiff’s mother completed plaintiff’s camper medical information form and indicated on the form that plaintiff has suffered from cerebral palsy since birth, was a quadriplegic, used an electric wheelchair, and had a colostomy as well as arthritis and speech problems. One of the questions on the form provided, “Should camper’s activities be limited due to physical condition or illness?” Plaintiff’s mother circled “Yes” and explained “Spine/disc narrowing-disc bulging, and disc herniation.”

Seger testified that, on Tuesday, plaintiff went down the water slide four or five times. Seger testified that plaintiff was loaded onto a tube at the top of the hill, then a camp counselor sat in a tube behind plaintiff’s tube and went down the hill holding onto plaintiff’s tube. Plaintiff was subsequently loaded onto a golf cart and driven back up to the top of the hill. On Wednesday, plaintiff went down the water slide approximately four more times. Seger testified:

So Robby rolled a couple times, got up laughing. It was fine the first day. And that’s when, I believe the second day, he really took a good flip. Elizabeth went down with him on the slide as well. I believe that’s the day he might [*4] have, when he rolled might have hit his foot on the ground too hard. He might have caught it in the ditch down at the bottom. I am not quite too sure exactly the circumstances that led to bones being broken in his foot. But when he complained about it I noticed the bruising and said something to the nurse and had her examine it.

Seger further testified regarding the last two times that plaintiff went down the water slide on Wednesday:

The third time I do remember him flipping. He went one time after that which he flipped as well. So-I’m sorry. Like I said, I can’t necessarily-I don’t remember specific times, but his last two times he flipped really hard. And that’s when he decided he was done. He didn’t want to go anymore. And he had some scratches caused from the gravel from the rolling over. And I think I remember that there was-he complained-got the wind knocked out of him when they rolled over, because he had lain there for a bit. And we went down to check everything out, make sure he was okay, checked his colostomy bag. Because I mean, like I said, he rolled over pretty good. And he said he just kind of had the wind knocked out of him but he was fine. So we got him cleaned up, wiped [*5] the mud off of his face, put him back in the golf cart, took him to the top of the hill. And that was close to the end of the activity, but he didn’t want to go anymore anyways.

On March 6, 2008, plaintiff filed a complaint, which alleged the following:

7. On or about July 19, 2007, the Defendant and its agents and employees, including all camp instructors and supervisors, owed certain duties and obligations to the Plaintiff and those similarly situated, including but not limited to:

a. Ensuring that they were kept from harm;

b. Utilizing all means and methods to ensure that they would not cause serious and permanent injury to Plaintiff;

c. To abide by the wishes and request of any guardian or parent of the Plaintiff or other similar situated individuals so as to ensure that the Plaintiff was not exposed to an increase[d] risk of harm and injury in the activities undertaken during said time at the camp;

d. To ensure that individuals attending the facility such as the Plaintiff herein were protected from severe and permanent injury and damage during the course of normal activity;

e. To ensure that injuries and damages sustained by the Plaintiff or other[s] similar[ly] situated while staying [*6] at the camp were properly and adequately diagnosed and treated and then appropriate and prompt medical attention was provided to these individuals and the Plaintiff herein by qualified and competent medical professionals;

f. To ensure that the facility properly and adequately trained its personnel to recognize the dangers in activities, which they may undertake with campers so as to reduce or eliminate the danger for severe and permanent injury and damage; and

g. Such other duties and obligations as may be identified throughout the course of discovery.

On April 17, 2009, defendant moved for summary disposition, pursuant to MCR 2.116(C)10), arguing that this was a premises liability case and that the alleged hazard was open and obvious. Plaintiff moved to amend his complaint in order to add a claim of nuisance in fact and moved to amend the scheduling order in order to extend scheduling dates 60 days so that he would have enough time to complete discovery. Plaintiff also opposed defendant’s motion.

At the hearing on the motion to amend the complaint, the trial court concluded:

This isn’t a nuisance case. This isn’t an issue that’s something open to the general public. It is for simply the [*7] private campers. You’ve got a negligence action, I think. It would appear that Mr. Watkins-at least from the briefs I’ve read thus far, subject to the arguments of both of you, I believe it’s Friday-didn’t even agree to this activity. It would appear that he simply was picked up out of a wheelchair, put on an inner tube, and he was accompanied by a counselor down the hill. This isn’t a nuisance case, it’s a negligence case. Doesn’t even appear to be a premises liability case.

So I think we’re-it would be futile to amend the complaint at this time. We’ll proceed with the complaint as drafted . . . .

At the hearing, the trial court also indicated that it was denying plaintiff’s request to have the scheduling order dates extended.

At the subsequent hearing on defendant’s motion for summary disposition, the trial court held:

This case has been described as a premises liability case. The reason the Court doesn’t consider it a negligence case in general is that I’m not sitting here with a patient that — or an individual that is not cognizant of what is going on around him. The staff followed his directions.

* * *

[I]n this particular case I’m dealing with a ditch at the bottom of a hill where [*8] water accumulates. As I have described here, based on the depositions, the condition was open, the condition was obvious, it was observed by Mr. Watkins, it was observed by everyone around. This could not be expected that this would result in a serious injury-severe injury. The condition of the premises cannot be considered unreasonable. You don’t have a situation where we could have an especially high likelihood of injury.

Hence, the trial court concluded that defendant’s motion for summary disposition should be granted because plaintiff’s claims were based on premises liability law and the condition was open and obvious and without special aspects that would remove the condition from the open and obvious danger doctrine. The trial court noted, however, that the claim relating to the failure to obtain proper medical services in a timely fashion remained pending. At the end of the hearing on the motion for summary disposition, the trial court entertained plaintiff’s motion for entry of order to dismiss the case without prejudice, which the trial court also granted.

II. ANALYSIS

Plaintiff argues that his claims of negligence should not have been summarily dismissed as claims sounding only [*9] in premises liability because it was defendant’s conduct in not properly and adequately training its personnel to recognize the dangers in activities that led to his injuries. Further, an objective reading of the complaint results in a finding that the negligence clearly involved the conduct of individuals with regard to the water slide activity. Thus, plaintiff’s claims should not have been dismissed on the basis of premises liability law because premises liability law does not apply to conduct.

We review de novo a trial court’s decision to grant summary disposition. Coblentz v City of Novi, 475 Mich 558, 567; 719 NW2d 73 (2006). We review the record in the same manner as the trial court to determine whether the movant was entitled to judgment as a matter of law. Morales v Auto-Owners Ins, 458 Mich 288, 294; 582 NW2d 776 (1998). A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). In evaluating a motion for summary disposition brought under this subsection, a reviewing court considers affidavits, pleadings, depositions, admissions and other evidence submitted by the parties, MCR 2.116(G)(5), in the [*10] light most favorable to the party opposing the motion. Coblentz, 475 Mich at 567-568. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10); MCR 2.116(G)(4); Coblentz, 475 Mich at 568.

Generally, where an injury arises out of a condition on the land, rather than conduct or activity, the action lies in premises liability. James v Alberts, 464 Mich 12, 18-19; 626 NW2d 158 (2001); Laier v Kitchen, 266 Mich App 482, 493; 702 NW2d 199 (2005). In other words:

In a premises liability claim, liability emanates merely from the defendant’s duty as an owner, possessor, or occupier of land. However, that does not preclude a separate claim grounded on an independent theory of liability based on the defendant’s conduct . . . . [Id.]

Premises liability law has been summarized by the Michigan Supreme Court as follows:

Generally, a premises possessor owes a duty of care to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land. This duty generally does not encompass a duty to protect an invitee from “open [*11] and obvious” dangers. However, if there are “special aspects” of a condition that make even an “open and obvious” danger “unreasonably dangerous,” the premises possessor maintains a duty to undertake reasonable precautions to protect invitees from such danger. [Mann v Shusteric Enterprises, Inc, 470 Mich 320, 328; 683 NW2d 573 (2004) (citations omitted).]

The test to determine if a danger is open and obvious is whether an average user of ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection. Joyce v Rubin, 249 Mich App 231, 238; 642 NW2d 360 (2002).

We conclude, viewing the evidence in the light most favorable to plaintiff, that defendant’s alleged liability emanated from its duty as the owner of the land. Coblentz, 475 Mich at 568; Laier, 266 Mich App at 493. That is, the question was whether defendant had a duty as the owner of the land to protect plaintiff from harm and thus provide a water slide activity that was free from danger by not allowing a ditch at the bottom of the slide to exist, which propelled participants into the air. Id. The theory of liability directly related to a condition on the land, i.e. the premises. James, 464 Mich at 18-19. [*12] Consequently, although some alleged conduct on the part of defendant may have been involved-i.e. failing to protect plaintiff from harm, allowing the ditch to form, and/or failing to train staff to recognize the danger involved in allowing participants to hit the ditch and be propelled into the air-this does not change the fact that, as a matter of law, this negligence claim was based on premises liability law. Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185 (1995); Laier, 266 Mich App at 489. 2 Indeed, in Laier we specifically held that the open and obvious doctrine applied to a claim pleaded as “a failure to warn of a dangerous condition or as a breach of a duty in allowing the dangerous condition to exist.” Id. at 489 (emphasis added). Accordingly, the trial court correctly determined that this case was based on premises liability law and analyzed the case under that theory. Id.

2 That is, of course, except for the negligence claim related to plaintiff’s subsequent care and treatment at the camp, which the trial court indicated remained pending, at least until the order dismissing the case without prejudice.

The undisputed facts reveal that the condition was also open and [*13] obvious. Joyce, 249 Mich App at 238. The testimony reflected that almost every time a camper went down the water slide, they hit the ditch and flipped or became covered in mud. In addition, plaintiff specifically testified that before he went down the water slide, he saw other people go down the water slide and fly into the air. Further, the testimony established that plaintiff went down the water slide several times before he was injured and that plaintiff was enjoying the water slide. We find on the record before us that an average user of ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection. Id. Based on the foregoing, the danger of going down the water slide, hitting the ditch, and flipping into the air, was open and obvious. Id.

Plaintiff argues that because a counselor at the camp did not recognize the danger, there was genuine issue of material fact on whether the condition was open and obvious. However, simply because one counselor did not see any danger in operating the slide (all the evidence pointed to the conclusion that all campers enjoyed the slide) does not result in a conclusion that an average user of ordinary [*14] intelligence would not have been able to discover the danger and the risk presented upon casual inspection by going down a water slide, hitting the ditch, and flipping into the air. Joyce, 249 Mich App at 238. Additionally, there was no evidence of prior injuries. Viewing the evidence in a light most favorable to plaintiff, there is no genuine issue of material fact whether the condition was open and obvious, Coblentz, 475 Mich at 567-568, and no special aspects to this condition were presented. Lugo v Ameritech Corp, 464 Mich 512, 516-520; 629 NW2d 384 (2001). Hence, plaintiff’s claim was barred by the open and obvious doctrine.

In addition, plaintiff argues that defendant should have known or anticipated that, given plaintiff’s physical condition and his parent’s requested restrictions, plaintiff could have been hurt if propelled into the air after hitting the ditch. This argument fails for the simple reason that in a premises liability action when determining whether a condition is open and obvious, “the fact-finder must consider the ‘condition of the premises,’ not the condition of the plaintiff.” Mann, 470 Mich at 329. Hence, plaintiff’s physical condition was not pertinent to [*15] the determination that the condition was open and obvious. Id.

Plaintiff also argues that the trial court abused its discretion when it denied him the opportunity to amend his pleadings with additional theories of ordinary negligence. The grant or denial of leave to amend is within the trial court’s discretion. Weymers v Khera, 454 Mich 639, 654; 563 NW2d 647 (1997). Thus, “[we] will not reverse a trial court’s decision regarding leave to amend unless it constituted an abuse of discretion that resulted in injustice.” PT Today, Inc v Comm’r of the Office of Financial & Ins Servs, 270 Mich App 110, 142; 715 NW2d 398 (2006). “Leave to amend the pleadings should be freely granted to the nonprevailing party upon a grant of summary disposition unless the amendment would be futile or otherwise unjustified.” Lewandowski v Nuclear Mgt, Co, LLC, 272 Mich App 120, 126-127; 724 NW2d 718 (2006). Specifically, “[a]n amendment is futile where the paragraphs or counts the plaintiff seeks to add merely restate, or slightly elaborate on, allegations already pleaded.” Dowerk v Oxford Charter Twp, 233 Mich App 62, 76; 592 NW2d 724 (1998).

For two reasons the trial court did not abuse it’s discretion. First, [*16] the exclusive focus of plaintiff’s motion to amend was to amend the complaint to allege a “nuisance”, and plaintiff does not challenge the trial court’s conclusion that nuisance is not properly pleaded under these facts. Second, an amendment would have been futile because plaintiff’s alleged additional theories of ordinary negligence merely restated, and slightly elaborated on, the theories of negligence that plaintiff already pleaded. Id. And, as already stated above, the open and obvious doctrine applied because defendant’s alleged liability emanated from defendant’s duty as the owner of the land to protect plaintiff from harm, including in allowing the danger to exist. Bertrand, 449 Mich at 609; Laier, 266 Mich App at 493. In other words, the open and obvious doctrine applied to plaintiff’s alleged theories of negligence, which were set forth in his complaint, as well as plaintiff’s alleged additional theories of ordinary negligence (except as noted in footnote 2, supra) because defendant’s alleged liability emanated from defendant’s duty as the owner of the land to protect plaintiff from harm. Id. Thus, there was no abuse of discretion that resulted in an injustice because granting [*17] plaintiff leave to amend his complaint would have been futile. Dowerk, 233 Mich App at 76; Weymers, 454 Mich at 654.

Affirmed.

/s/ David H. Sawyer

/s/ Christopher M. Murray

CONCUR BY: William B. Murphy

CONCUR

MURPHY, C.J. (concurring).

I find it unnecessary to determine whether plaintiff’s lawsuit sounded solely in premises liability law. Assuming that plaintiff alleged an independent cause of action on a pure negligence theory, I would hold, as a matter of law, that defendant owed no specific duty of care to plaintiff that encompassed protecting him from or keeping him off the water slide. I would also analyze the premises liability claim in a slightly different manner. Accordingly, I respectfully concur.

“The elements of an action for negligence are (i) duty, (ii) general standard of care, (iii) specific standard of care, (iv) cause in fact, (v) legal or proximate cause, and (vi) damage.” Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977). As a general rule, there is no common law duty that obligates one person to protect another person from danger. Dawe v Dr Reuven Bar-Levav & Associates, PC, 485 Mich 20, 25; 780 NW2d 272 (2010). An exception exists when there is a special relationship between a plaintiff [*18] and the defendant. Id. at 25-26. The Dawe Court, quoting Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418 NW2d 381 (1988), observed:

“The rationale behind imposing a duty to protect in these special relationships is based on control. In each situation one person entrusts himself to the control and protection of another, with a consequent loss of control to protect himself. The duty to protect is imposed upon the person in control because he is best able to provide a place of safety.” [Dawe, 485 Mich at 26.]

Here, plaintiff’s allegations that presumably sounded in negligence were in the nature of claims that defendant had failed to protect him from or keep him off the water slide. Despite his physical limitations, plaintiff is an adult who was fully aware of the ditch at the end of the water slide, and there is nothing in the record to suggest that he was incapable of appreciating any potential dangers, nor that he was incapable of making his own informed decision whether to engage in the activity of using the water slide. The record reflects that plaintiff did not have a guardian and that he was employed as a mail clerk. This case does not present a situation in which plaintiff [*19] entrusted himself to the control and protection of defendant, as he never lost the ability to protect himself, which could have been accomplished by simply declining to participate in the activity. Defendant never forced plaintiff to use the water slide. Indeed, plaintiff later decided against further using the slide. I would hold, as a matter of law, that defendant owed no specific duty of care to plaintiff that encompassed protecting him from or keeping him off the water slide.

With respect to plaintiff’s claims predicated on premises liability law, this case is not truly one that concerns the open and obvious danger doctrine. Rather, we have a situation in which defendant had no duty because plaintiff had actual knowledge of the hazard and chose to proceed. Plaintiff knew that camp patrons, including himself, had flipped over in the ditch, considering that he had slid down the slide and flipped previously, and given that he observed others doing the same. As indicated in Bertrand v Alan Ford, Inc, 449 Mich 606, 610; 537 NW2d 185 (1995), liability will not be imposed on a landowner where a hazard is known or is open and obvious. “[T]he open and obvious doctrine will cut off liability [*20] if the invitee should have discovered the condition and realized its danger.” Id. at 611 (emphasis added). Thus, liability or a duty evaporates when a danger is open and obvious, as it should have been discovered, or when the danger was actually known, as it had been discovered, which is the case here. Plaintiff’s premises liability claim thus fails, as I do not find that the condition remained unreasonably dangerous despite plaintiff’s knowledge of it. Id.

In all other respects, I agree with the majority’s opinion.

I respectfully concur.

/s/ William B. Murphy


Summer camp being sued for injury from falling off horse wins lawsuit because the plaintiff failed to find an expert to prove their case.

Failure of the plaintiff to find an expert witness in a case requiring an expert results in dismissal of the plaintiff’s complaint.

Ellis v. Y.M.C.A. Camp Mohawk, Inc., 2014 U.S. Dist. LEXIS 110403

State: Connecticut, United States District Court for the District of Connecticut

Plaintiff: Louisa R. Ellis, PPA Elizabeth Ellis and Elizabeth Ellis

Defendant: Y.M.C.A. Camp Mohawk, Inc.

Plaintiff Claims: negligence and consequential damages

Defendant Defenses: Plaintiff cannot prove their case because they do not have an expert witness qualified to prove their claims.

Holding: Plaintiff

Year: 2014

The plaintiff attended the day camp of the defendants. One of the activities was horseback riding. For one of various reasons, the plaintiff was given a pony to ride rather than a horse. While riding the horse, the plaintiff fell over the shoulder or head of the horse suffering injuries.

The plaintiff sued for negligence and consequential damages (which is slightly confusing). The plaintiff hired an expert witness to prove their case that had no qualifications as a horse expert. The plaintiff’s expert was then disqualified. Because under Connecticut law, an expert witness was needed to prove the plaintiff’s case, the case was dismissed. The plaintiff appealed.

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

The court first looked at what an expert witness is and when a case requires an expert witness. An expert witness is a person that is qualified to prove testimony as an expert because of their knowledge, skill, experience, training or education. “…the expert’s scientific, technical, or other specialized knowledge [must] help the trier of fact to understand the evidence or to determine a fact in issue.”

The plaintiff’s expert had no “education, training, or experience related to horseback riding. In fact, there is no mention of “horses” or “horseback riding” anywhere in his curriculum vitae.” His work experience also provided no background in horses or horseback riding. Consequently, the plaintiff’s expert was not qualified to be an expert witness.

The next issue was whether or not an expert was needed to prove the case.

Thus, the issue the court must resolve is whether the answers to the questions presented by the allegations of negligence in the plaintiffs’ complaint are beyond the ordinary understanding, knowledge, or experience of the average judge or juror.

The court then looked at whether the average jury would know enough about horses to understand the case. This court looked at a prior ruling on the subject:

The court observed that “[w]e are well into the age of the automobile, and the general public in the twenty-first century is not generally as acquainted with horsemanship as it arguably was at the beginning of the twentieth century.” Therefore, the court concluded; it was necessary “for the plaintiffs to produce expert testimony to establish both the standard of care to which the defendant was to be held and a breach of that standard.”

The court reached this conclusion. “The services being provided by the defendant, i.e. horseback riding lessons to minor children, are specialized and beyond the ordinary understanding, knowledge and experience of jurors.”

Because the plaintiff did not have an expert witness, the plaintiff was unable to prove their case. The court upheld the dismissal of the case.

So Now What?

This is an extremely rare decision, in fact, the first I have ever read. It is paramount that if you are involved in litigation, you assist your defense attorney in finding the best expert witness you can for your case. That means two things.

1.                  The expert has the necessary qualifications to be an expert.

2.                The expert has the ability to convey their opinion to the jury in a way the jury will understand.

You can have the most qualified person in the world as your expert but if he or she is unable to convey the message in a way the jury will understand you may still lose your case.

What do you think? Leave a comment.

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Ellis v. Y.M.C.A. Camp Mohawk, Inc., 2014 U.S. Dist. LEXIS 110403

Ellis v. Y.M.C.A. Camp Mohawk, Inc., 2014 U.S. Dist. LEXIS 110403

Louisa R. Ellis, PPA Elizabeth Ellis and Elizabeth Ellis, Plaintiffs, v. Y.M.C.A. Camp Mohawk, Inc., Defendant.

Civil No. 3:12cv515(AWT)

United States District Court for the District of Connecticut

2014 U.S. Dist. LEXIS 110403

August 11, 2014, Decided

August 11, 2014, Filed

COUNSEL: [*1] For Louisa R. Ellis, ppa Elizabeth Ellis, Elizabeth Ellis, Plaintiffs: James V. Sabatini, Megan Leigh Piltz, LEAD ATTORNEYS, Sabatini & Associates, Newington, CT.

For Y.M.C.A. Camp Mohawk, Inc., Defendant: Katherine L. Matthews, Renee Wocl Dwyer, LEAD ATTORNEYS, Gordon, Muir & Foley, Hartford, CT.

JUDGES: Alvin W. Thompson, United States District Judge.

OPINION BY: Alvin W. Thompson

OPINION

RULING ON MOTION FOR SUMMARY JUDGMENT

This action arises out of injuries suffered by the minor plaintiff, Louisa Ellis (the “Camper”), when she fell from a horse while participating in activities at a day camp operated by the defendant, Y.M.C.A. Camp Mohawk, Inc. (“Camp Mohawk”). The plaintiffs’ complaint consists of two counts, one for negligence and one for consequential damages. Camp Mohawk has moved for summary judgment on both counts. For the reasons set forth below, the defendant’s motion is being granted.

I. FACTUAL BACKGROUND

On July 18, 2011, the Camper participated in a horseback riding lesson while attending Camp Mohawk’s day camp in Cornwall, Connecticut. During this lesson, the Camper was assigned a pony, named Geri, to ride. The plaintiffs claim that the Camper was given a pony rather than a horse because Camp Mohawk [*2] did not have enough horses for all of the campers to ride. At some point during the lesson, the Camper lost control of the pony and was thrown over the pony’s shoulder or head. The Camper allegedly had her hands caught in the pony’s reins when she fell.

The complaint alleges that the Camper’s fall, as well as the injuries and losses the plaintiffs have suffered as a result of the fall, were caused by Camp Mohawk’s negligence. Specifically, the plaintiffs list 10 ways in which they believe Camp Mohawk was negligent with respect to the Camper’s horseback riding lesson:

(a) In that the pony was of an insufficient size for the plaintiff to properly and safely ride;

(b) In that the plaintiff’s weight and/or height exceed the reasonably safe riding weight for the pony assigned to the plaintiff;

(c) In that the riding equipment on the pony (the stirrups) were improperly installed or fitted thereby rendering the pony unsafe for the plaintiff to ride;

(d) In that the pony was not adequately and/or properly trained thus rendering the pony unsafe and hazardous for the plaintiff to ride;

(e) In [*3] that the pony was of a disobedient disposition thereby causing the pony to be unsafe for riding by the plaintiff;

(f) In that the defendant failed to properly or adequately train and instruct its employees;

(g) In that the defendant failed to properly and adequately supervise the camp students including the plaintiff;

(h) In that the defendant failed to properly or []adequately instruct or teach the camp students including the plaintiff on how to safely and properly ride on a pony;

(i) In that the defendant failed to warn the plaintiff of the dangers and hazards associated with riding the pony; and

(j) In that the defendant could not have reasonably assumed that the plaintiff, a minor, possessed the experience and judgment necessary to fully appreciate the dangerous condition of the pony and/or the full extent of the risk involved.

(Complaint (Doc. No. 1), at 3-4.)

II. LEGAL STANDARD

A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); [*4] Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir. 1994). Rule 56(a) “mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322.

When ruling on a motion for summary judgment, the court must respect the province of the jury. The court, therefore, may not try issues of fact. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Donahue v. Windsor Locks Bd. of Fire Comm’rs, 834 F.2d 54, 58 (2d Cir. 1987); Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975). It is well-established that “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of the judge.” Anderson, 477 U.S. at 255. Thus, the trial court’s task is “carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined . . . to issue-finding; it does not extend to issue-resolution.” Gallo, 22 F.3d at 1224.

Summary [*5] judgment is inappropriate only if the issue to be resolved is both genuine and related to a material fact. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. An issue is “genuine . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248 (internal quotation marks omitted). A material fact is one that would “affect the outcome of the suit under the governing law.” Id. As the Court observed in Anderson: “[T]he materiality determination rests on the substantive law, [and] it is the substantive law’s identification of which facts are critical and which facts are irrelevant that governs.” Id. Thus, only those facts that must be decided in order to resolve a claim or defense will prevent summary judgment from being granted. When confronted with an asserted factual dispute, the court must examine the elements of the claims and defenses at issue on the motion to determine whether a resolution of that dispute could affect the disposition of any of those claims or defenses. Immaterial or minor facts will not prevent summary [*6] judgment. See Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d Cir. 1990).

When reviewing the evidence on a motion for summary judgment, the court must “assess the record in the light most favorable to the non-movant and . . . draw all reasonable inferences in its favor.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Delaware & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990)). Because credibility is not an issue on summary judgment, the nonmovant’s evidence must be accepted as true for purposes of the motion. Nonetheless, the inferences drawn in favor of the nonmovant must be supported by the evidence. “[M]ere speculation and conjecture is insufficient to defeat a motion for summary judgment.” Stern v. Trs. of Columbia Univ., 131 F.3d 305, 315 (2d Cir. 1997) (internal quotation marks omitted) (quoting Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d. Cir. 1990)). Moreover, the “mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence on which [a] jury could reasonably find for the [nonmovant].” Anderson, 477 U.S. at 252.

Finally, the nonmoving party cannot [*7] simply rest on the allegations in its pleadings since the essence of summary judgment is to go beyond the pleadings to determine if a genuine issue of material fact exists. See Celotex Corp., 477 U.S. at 324. “Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact,” Weinstock, 224 F.3d at 41, if the movant demonstrates an absence of such issues, a limited burden of production shifts to the nonmovant, who must “demonstrate more than some metaphysical doubt as to the material facts, . . . [and] must come forward with specific facts showing that there is a genuine issue for trial.” Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quotation marks, citations and emphasis omitted). Furthermore, “unsupported allegations do not create a material issue of fact.” Weinstock, 224 F.3d at 41. If the nonmovant fails to meet this burden, summary judgment should be granted.

III. DISCUSSION

Camp Mohawk argues that summary judgment is appropriate here because expert testimony is required to establish the standard of care and breach of duty with respect to instruction in horseback riding, and the plaintiff has not offered [*8] a relevant opinion from a qualified expert.

A. Whether Expert Testimony is Required

“In this diversity action, the question of whether or not expert testimony is required to prove negligence is a question of [Connecticut] State law.” Conte v. Usalliance Federal Credit Union, Civ. No. 3:01-cv-463(EBB), 2007 U.S. Dist. LEXIS 82908, 2007 WL 3355381, at *3 (D. Conn. Nov. 8, 2007) (citing Beaudette v. Louisville Ladder, Inc., 462 F.3d 22, 27 (1st Cir. 2006) (“In a diversity action, whether expert testimony is required is a matter of state law[.]”)). The Connecticut Supreme Court has stated on multiple occasions that “[e]xpert testimony is required ‘when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors.'” LePage v. Horne, 262 Conn. 116, 125, 809 A.2d 505 (2002) (quoting Bader v. United Orthodox Synagogue, 148 Conn. 449, 454, 172 A.2d 192 (1961)) (emphasis in original); see also Santopietro v. City of New Haven, 239 Conn. 207, 226, 682 A.2d 106 (“If the determination of the standard of care requires knowledge that is beyond the experience of an ordinary fact finder, expert testimony will be required.”); State v. McClary, 207 Conn. 233, 245, 541 A.2d 96 (1988) (holding that expert testimony is required when a matter is [*9] “manifestly beyond the ken of the average trier of fact, be it judge or jury”).

Thus, the issue the court must resolve is whether the answers to the questions presented by the allegations of negligence in the plaintiffs’ complaint are beyond the ordinary understanding, knowledge, or experience of the average judge or juror. The court concludes that the questions at issue here are such that the answers are beyond such understanding, knowledge and experience. The Connecticut Appellate Court reached a similar conclusion in Keeney v. Mystic Valley Hunt Club, Inc., 93 Conn. App. 368, 889 A.2d 829 (2006). The court in Keeney found that

the proper method of teaching a novice rider, the qualification necessary to be a competent and qualified instructor of a novice rider, whether to instruct such a rider to remove her or his feet from the stirrups, [and] where those stirrups should then be placed . . . are not matters within the common knowledge of the jury but, rather, are specialized matters unique to the profession of those teaching novice riders.

Id. at 376. These questions are either the same as or substantially similar to the majority of those raised by the plaintiffs in their complaint. See also Raudat v. Leary, 88 Conn. App. 44, 868 A.2d 120 (2005) [*10] (holding that expert testimony was required on the issue of whether a horse was one “that is incompletely broken or trained”) (internal quotation marks omitted)). In Keeney the court explained that “[t]he plaintiffs’ allegations in the present case are akin to allegations of professional negligence or malpractice . . . . because the defendant was rendering specialized professional service to the plaintiff.” Keeney, 93 Conn. App. at 375. The court observed that “[w]e are well into the age of the automobile, and the general public in the twenty-first century is not generally as acquainted with horsemanship as it arguably was at the beginning of the twentieth century.” Id. Therefore, the court concluded, it was necessary “for the plaintiffs to produce expert testimony to establish both the standard of care to which the defendant was to be held and a breach of that standard.” Id. at 376.

The same reasoning is applicable here. The services being provided by the defendant, i.e. horseback riding lessons to minor children, are specialized and beyond the ordinary understanding, knowledge and experience of jurors. Since Keeny, the general public has not become more familiar with horsemanship or [*11] the appropriate method for teaching minors how to ride horses. Therefore, the issues raised by the plaintiffs’ contentions as to all the ways in which Camp Mohawk was negligent require expert testimony.

The plaintiffs’ arguments to the contrary are not persuasive. The plaintiffs point to three issues they claim do not require expert testimony: “whether [the Camper] was too big to be riding Geri the pony to begin with”; “whether [the Camper’s] stirrups were properly adjusted prior to beginning her lesson”; and “whether Geri the pony was disobedient.” (Pl.’s Mem. Opp. Mot. Summ. J. (Doc. No. 48) (“Pl.’s Mem.”), at 10-11.) In support of this contention, the plaintiffs point to excerpts of deposition testimony by a number of witnesses that included substantially similar statements. However, the mere existence of a lay opinion regarding a particular issue does not obviate the necessity of an expert opinion on that same issue, if an expert opinion is required in the first place. None of the deponents cited are the plaintiffs’ expert. Therefore, their testimony does not suffice to create a genuine issue of material fact as to these issues.

B. Whether the Plaintiffs’ Expert is Qualified

The defendants [*12] argue that because expert testimony is required on the issues raised by the plaintiffs’ contentions, summary judgment should be granted because the only expert the plaintiffs have identified is not qualified to give an expert opinion on those issues. The court agrees.

Under Federal Rule of Evidence 702 a witness may serve as an expert if he or she “is qualified as an expert by knowledge, skill, experience, training, or education.” Among other requirements, “the expert’s scientific, technical, or other specialized knowledge [must] help the trier of fact to understand the evidence or to determine a fact in issue.” Id. The plaintiffs have disclosed Corey Andres of Robson Forensic as their expert. His expert report contains a description of his education and experience. He has no education, training, or experience related to horseback riding. In fact, there is no mention of “horses” or “horseback riding” anywhere in his curriculum vitae.

In 1998, Andres received a Bachelor’s of Education with a major in therapeutic recreation and a minor in psychology. He received a Master’s of Education with a major in therapeutic arts in 1999. In 2005, Andres received a Master’s of Arts in educational [*13] policy and leadership; in connection with that degree, he participated in the Principal Licensure Cohort Program. His work experience is comprised of working as a graduate teaching assistant from 1998 to 1999 (where his focus was community recreation programming), working as a 4th and 5th grade teacher from 2001 to 2002, and working as an intervention specialist teacher at a high school in Ohio from 2002 to the present; in that capacity he leads a department of 36 professionals that serve special needs students. Since 2010 he has also been an associate at Robson Forensic, Inc.

In high school and college, Andres was involved with football, lacrosse, track, tennis and various intramural sports, in addition to being a certified lifeguard. He worked at a summer camp in 1995 instructing skills and techniques of golf, basketball, baseball, waterfront activities and tennis. He subsequently worked at camps in a number positions during the period from 1995 to 2008 and taught weightlifting and lacrosse. He has coached lacrosse and also served as a weight room supervisor, giving instructions on proper lifting techniques and exercises.

His resume indicates that his work for Robson Forensic, Inc. [*14] has involved providing technical investigations, analysis reports and testimony in connection with commercial and personal injury litigation involving: school administration, child supervision, recreation and sports programing, coaching, camp supervision and administration, weight training and athletic conditioning.

The only indication that he has had any involvement whatsoever with horseback riding is the fact that at page 6 of his report he cites in footnotes three publications on which he has relied in preparing his report.

At issue in Keeney was whether the plaintiff’s riding instructor was negligent in providing an unsafe instruction to a novice rider. The court concluded that the trial court had not abused its discretion in precluding the proposed expert witness from testifying about the appropriate standard for a riding instructor to teach a young novice rider, explaining

The issue in this case, however, was whether Heather Keeney’s riding instructor was negligent in providing an unsafe instruction to this novice rider. The expert, although having been a certified horse riding instructor since 1973, testified that she had not trained young novice riders in more than twenty years, [*15] had taken no refresher courses in training students, had no specialized training in the use of lunge lines with novice riders, had never prepared any instructional or training materials for instructors, had never served on a safety committee and had never taught riding instructors. On the basis of this testimony, we cannot conclude that the court abused its discretion in precluding this witness from testifying as to the appropriate standard for a riding instructor to teach a young novice rider.

93 Conn. App. 372-73.

Andres falls far short of having the qualifications possessed by the proffered expert in Keeney. Because expert testimony is required for the plaintiffs to establish their case and they have failed to produce a qualified expert, they have failed to create a genuine issue of material fact as to any of the issues raised in the complaint, and the defendant is entitled to judgment as a matter of law.

IV. CONCLUSION

For the reasons set forth above, Defendant’s Motion for Summary Judgment (Doc. No. 43) is hereby GRANTED.

The Clerk shall enter judgment in favor of defendant Y.M.C.A. Camp Mohawk, Inc. as to all the claims in the complaint and close this case.

It is so ordered.

Dated this [*16] 11th day of August, 2014, at Hartford, Connecticut.

/s/ Alvin W. Thompson

United States District Judge


Federal Court in Idaho holds camp not liable for assault on third party by runaway minors.

The Court did find that the camp was still in the custody and control of the minors during the assault which occurred three days after the youth had run away from the camp.

Gadman v. Martin, 2014 U.S. Dist. LEXIS 83883

State: Idaho, United States District Court for the District of Idaho

Plaintiff: Vera Gadman

Defendant: Joseph Martin; Marshall Dittrich; Penelope James; and Phoenix Mountain Collaborative, LLC.

Plaintiff Claims: Negligence

Defendant Defenses: No duty

Year: 2014

Holding: for the defendant

This case is about the escape of two boys from a summer program for “troubled” youth. These programs have achieved fame and notoriety based on various issues of successes and failures, as well as abuse. However, this legal issue is important to anyone who is taking care of youth at a camp… In this one two kids at the camp ran away and then assaulted a third party. The person the runaway kids assaulted then sued the camp for her injuries.

The defendant camp was operated in Montana. During one part of the session, the youth were rafting the Clark Fork River. The Clark Fork flows from Montana to Idaho. One night during the river trip the campers were on property owned by the defendant camp. The youth ran away.

Neither of the youth who ran away from the camp had a history of violence. They seemed to be enrolled in the program because of drug use and generally being really stupid kids. Both youth has been on a run-away watch a system developed by the camp and had their journals and shoes removed. However, their shoes were returned to them for the rafting trip.

The school had a “Run Watch Policy” which the court pointed out, quoted from and found the school had not followed. “Explorations will take all reasonable precautions pertinent to each individual student so as to reduce the possibility of their escape from our custody.”

The defendant camp filed a motion for summary judgment, and this decision is based on that motion.

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

The defense was based on two theories.

1) they owed no duty to Ms. Gadman [plaintiff] and

2) the actions of Mr. Dittrich and Mr. Martin (youth runaways) were not foreseeable [to cause injury to the plaintiff] to either Explorations or Ms. James [defendants].

The determination under Idaho law as to whether the defendants owed a duty of care to the plaintiff’s when they are in charge of youth “who are dangerous or who have dangerous propensities“ is a two-part test.

The first part requires a determination of whether the supervising body actually has control over the individual in question, and then secondly, if so, a determination must be made whether the harm caused by the individual was foreseeable.

The court then looked at the first part of the test.

One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.

The first part of the test is whether or not the supervising authority has actual control over the youth. Here the youth were not allowed to leave the camp without the camps or the youth’s parent’s permissions. Even though the youth had voluntarily, and without permission, left the campsite and been away from the camp for two days at the time of the attack, the court held the camp was still in control, for the purposes of the test, of the youth.

Ordinarily, there is no affirmative duty to assist or protect someone unless special circumstances exist. The analysis is not what is the relationship between the affected third party and the youth in this case, but the relationship between the youth and the camp. “Thus, the duty alleged in this case would have to arise from a supervisory relationship where Ms. James/Explorations exercised some level of control over Mr. Martin and Mr. Dittrich.”

The fact the youth ran away was not valid excuse or abrogation of control by the camp.

Explorations was responsible for the care and custody of the youth participants in its programs. The minor participants could not leave the program without their parents’ permission. When asked if the participants of the outdoor program were “free to leave,” Ms. James stated in her deposition that participants who were minor could only leave if they had their parents’ permission, otherwise they were not free to leave. Ms. James went on to state that the steps taken to assure participants do not leave are that “care is provided, oversight and care, with our instructor team the entire time the students are there.”

Most of this analysis was based on the camps Run Watch Policy and Run Watch Kit for leaders. Because the camp knew the kids would run away and prepared for it, they knew it was possible and consequently, the court felt they did not give up control over a kid when the kid did run. “The Court finds upon these undisputed facts that Mr. Martin and Mr. Dittrich were in the custody and control of Explorations at the time of the attack.”

The next issue was the foreseeability question. In this case, the question was not whether it was foreseeable that the kids would run away, but whether it was foreseeable, the kids would assault a third party.

Foreseeability, ‘contemplates more than the mere possibility of aggressive tendencies…. The concept of foreseeability is much more narrowly drawn in this circumstance, … i.e. violence, particularly of a sexual nature, toward members of the public … must be manifest or ostensible, and highly likely to occur.

The plaintiff argued the violent acts of the defendant were foreseeable because of the youth’s drug use and prior attendance at treatment facilities. However, the court did not agree with this.

Although the boys had struggled in various aspects of their lives before attending Explorations, there is nothing in their histories that was known to Explorations that made their actions on July 31, 2011 [date of the attack] foreseeable.

The theft of drugs by one participant who had run away in the past, nor the fact that the kids had been planning to run away did not change the court’s opinion of this. The planning though, was only discovered the history of the youth, after the youth had been caught. Both arguments by the plaintiffs were too speculative according to the court.

The court held therefore, that the defendant camp was not liable.

So Now What?

Although the defendant won this case, it was a close one. All camps should read this with the understanding that a minor that has been delivered to them by their parents are in their custody and control until they are delivered back to their parents.

Whether or not this can be moderated by contract, I’m not sure.

This case would have gone the other way if the youth had a history of violence. The defendant notified the boy’s parents and law enforcement within 90 minutes of the discovery the boys were missing. Even calling law enforcement did not change the issue of control.

What do you think? Leave a comment.

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