ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp
Posted: March 7, 2011 Filed under: Minors, Youth, Children, Summer Camp, Youth Camps | Tags: Church Camp, Expert Witness, Helmets, Litigation, Standards, Youth Camp 2 CommentsThis case shows how standards, written by a great organization with good intentions can be used to help, encourage and support lawsuits against its own members.
This case was settled, but it is full of information that everyone who may be a defendant needs to understand.
This case was started by a woman, the plaintiff, more than five years after she had spent a couple of weeks at a summer camp. She was not a camper nor was she working at the camp. She had been invited out by a staff member to give her a break from home. Allegedly, she was (consensually although there may have been statutory issues) sexually assaulted by an older staff member. She sued the staff member and the camp.
The plaintiff, to support her position, hired an expert witness. This is a common practice to support a claim. The expert witness’s job is to prove the defendant camp had acted in violation of the standard of care for camps. The plaintiff’s expert was an ACA standards visitor. The Expert Opinion by the ACA standards visitor was used in the plaintiff’s motion to support a claim that the defendant Camps actions warranted an award of Punitive Damages.
Punitive damages, are damages awarded by the jury above and beyond actual or compensatory damages. The damages are meant to punish the defendant. Punitive damages are not covered by insurance, are not dischargeable in bankruptcy and are in addition to any other damages. The defendant must pay punitive damages, if awarded, no matter what. Consequently, if the court approves the motion to ask for punitive damages in a case, it almost always forces the defendant to settle for fear of having to pay money out of their own pocket. The facts are never thoroughly litigated because they fear of the punitive is overriding. Even if you are 100% right, you may still settle in if punitive damages is a real threat.
The expert for the plaintiff (no relationship to me) was listed as an expert because she was an American Camp Association Accreditation Standards visitor. The experts Resume listed her ACA membership and her ACA Associate Visitor status second only to her education. The “Standards” allegedly violated were the 1998 ACA Accreditation Standards for Camp Programs and Services.
The expert opinion listed five areas that the camp had violated the standard of care for camps. Those areas are listed in the report as Opinion 1 through 5. ACA standards were used to support the expert’s opinion in three of the violations.
The first opinion rendered was the defendant camp violated the then ACA Accreditation Standards – HR-10. HR-10 states no camp staff member is to be under 16 years of age. The plaintiff at the time she was visiting camp was 14.
The first issue is the standard was applied to a fact situation that really had nothing to do with the claim. However, because there was a standard that could be linked to the claim, no matter how remote, the standard was alleged to be violated by the defendant. The plaintiff in this case was not a camp staff member, was not a volunteer, and was not getting paid. She was there for a break from her family. Nevertheless, the standard was applied to show the defendant camp should be held liable for punitive damages.
The second issue is the standard created by the trade association that the camp was a member of, was used to show the camp was negligent. That is just wrong!
Opinion 4 stated that 4 ACA Camp Standards were violated:
HR-11 requires six days of pre-camp staff training of employees.
HR-12 required late hire training for employees.
HR-13 requires implementation of in-service training for employees.
HR-19 requires specific training for staff supervisors to maintain staff performance and address inappropriate staff behavior.
The plaintiff had not received any training. I’ve never seen a camp train any visitor. (Although I’m sure you wish you could sometimes!)
All four “Standards” were violated because the plaintiff did not receive any of the training required by the ACA “Standards”. Again, visitors to camp need to go through training? Late hire camp staff training? Hire usually means someone is employed, consequently, paid, which never occurred here.
Opinion No. 5 stated the defendant camp violated ACA Standard HW-19 and ACA Standard HW-20 on the proper system of health care camp record keeping. This was alleged because a cut the plaintiff received was not recorded in the nurse’s log.
What is so interesting about this issue was there was no allegation that the cut the plaintiff had received was received or treated negligently. Nothing in the lawsuit claimed the way the plaintiff received the cut, the first aid or treatment was negligent. The complaint just stated she received a cut and was taken home by her parents. The suit claimed that an older camp staff employee had sexual relations with the plaintiff.
However, this is a perfect example of how plaintiffs use any violation of the standard, whether or not it has anything to do with the claim, to make the defendant look bad in the eyes of the court and the jury. Good defendants do not violate standards. Here the defendant was obviously bad because the standard was not met.
There is no way that any camp can operate and not violate one of the “Standards” at some time during the camp season! 1998 there were just too many of them. In 2011 there are even more.
To support the allegations made in the plaintiff’s expert report copies of the “Standards” were attached to the report. The following pages were attached to the report:
Cover Page
Title Page
Table of Contents vii
Table of Contents viii
Page 92 HR-10 Staff Age Requirements
Page 93 continuation of HR-10 and HR-11
Page 94 continuation of HR-11, HR-12 and HR-13
Page 97 HR-18 and HR-19
Page 98 continuation of HR-19 and HR-20
Page 67 HW-19 Recordkeeping
Page 68 HW-20 and HW-21
Why only those pages? Because those are the important pages the plaintiff wants the judge to see. There are limits to how big motions can be how many pages the judge will read, pages, etc. Those are all valid arguments and are real for only putting in the important documents as exhibits.
However “standards” are written with disclaimers and limitations and definitions, none of which are ever given to the court. The court is never shown that there may be limitations to what the “Standards” mean or how they are applied.
Even if those were supplied, the court must apply the definitions that are in the statute or by law first and then as used in the community or industry second. See Words: You cannot change a legal definition.
Trade Associations write standards with the mistaken believe that the plaintiff’s experts and the court will apply the standards exactly the way the standards are intended to be written. The facts are once the standards are printed the trade association loses all control no matter how many pages of disclaimers are put in the information.
So the judge in this case, who is pressed for time, reads the report and has a list of standards that are violated. A standard is the optimum word. The camp was below the minimum level of acting or not acting that was set by the camps own trade association. That is all that is needed to keep the case moving forward. Standards were violated. Therefore, there may be negligence. That must go to a jury, there must be a trial and the cost to the defendant (and its insurance company) climbs even higher. (Consequently, your premiums increase also. See Insurance 101 if you don’t fully understand this.)
Even if the additional documentation is put into evidence, the legal definition of the words is going to be used, not how the word is defined in the standards book. See Words: You cannot change a legal definition.
Nor does the court have the opportunity to delve into the standards to find out that most of them are not really standards but suggestions, ideas or just good practices. However, by identifying the book as standard there is a legal definition applied to the work that is just as dangerous as it may be helpful.
Some might say that if the camp was bad then lawsuits get rid of bad camps (or other defendants). However, that never works. This camp did not close up. In fact, in my opinion, this camp was sued because it tried to help out a confused young woman. The end effect is there will be no more attempts to help anyone in the future.
The only real consequence of this lawsuit was the amount of time that spent working on the case. Some money might have moved between the parties, and the attorneys and expert witnesses made money.
Let’s look at the opinion no 1 of the plaintiff’s expert witness. The standard says that employees should not be under the age of 16. Most camps are run by families. Many times there may be two or three generations at the camp. If a staff member sends their 15 year old son to the tool shed to get a tool and in the process the son accidentally knocks over a camper, injuring the camper, the camp has violated that standard. No 16 year olds should be hired by a camp. However, he wasn’t hired. Well, we’ve seen how that does not work, and he was working, providing a benefit for the camp.
The camp has a couple of options.
1. Not allow their children at camp until they are 16.
2. Violate the standard.
You are going to take your kids to camp and have them play video games and watch TV or are you going to put them to work. If you put them to work before they reach the age of 16 you are violating a standard created by a trade association for your benefit.
Say you are an organization that works to install leadership, training and teamwork into the youth. It is common in your organization for the youth to be responsible for other members. (Sound like any organization you know?) Your camps are staffed predominantly by youth because of the training and goals of the organization. Every single one of those camps is in violation of the standard HR-10 (as it was in 1998).
If your youth organization is focused in leadership training and does that by helping youth move up to more advanced and important leadership positions, the entire program will fail if you say to the 14 year olds, wait two years until you turn 16 to move up to the next level, camp staff.
These are just two scenarios where the standard set forth in HR-10 (which is almost identical in the latest version) can be used to sue a camp every single day of the year. However, in both scenarios, nothing has been done wrong other than taking your kid to work and following your youth program guidelines.
Are all standards bad? No, standards for things are great. Concrete “acts” the same way every day. A fight with a spouse, traffic on the way to work, rain, none of this affects concrete. It is going to support XX thousands of pounds of weight. Standards for things work. People and how people operate are subject to millions of things, weather and other people. We don’t’ react the same way. We aren’t affected the same way. We don’t respond the same way, who can you write something down that says we will, no matter what.
For other articles about standards see:
This is how a standard in the industry changes…..but….
Can a Standard Impede Inventions?
Words: You cannot change a legal definition
Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent
The motion where the expert witness’ report was filed is here.
What do you think? Leave a comment.
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Markel top Five Camp Claims for 2010
Posted: November 23, 2010 Filed under: Insurance, Summer Camp Leave a commentClaims are mixed between general liability and property damage claims, but instructive.
Markel Insurance has listed their top five (5) claims for the 2010 camp season.
1. Auto-related events. The majority of driver-at-fault accidents involved backing into and hitting parked vehicles, colliding at intersections, rear-ending other vehicles, and striking objects such as deer and trees.
2. Tripping and falling accidents. These events often took place on playground equipment and during open-field game activities.
3. Wind damage. Wind-related damages were primarily caused by trees falling on structures during strong storms.
4. Abuse. Abuse allegations reported during 2010 were primarily camper-to-camper incidents.
5. Lightning damage. Damages occurred to office equipment, such as computers and telephone systems.
Auto, Wind and Lighting are property damage claims. In most cases, these are the real reasons why you have insurance. To pay for damage for things you cannot control, wind and weather.
Tripping and falling accidents are the curious claims listed. Kids fall down. Many of these claims can be avoided if the parents know that kids are going to be hurt when they run, jump and play.
The Markel Risk Management Tips newsletter can be seen here. To sign up for the newsletter go to CampInsurance.com. A complete article about the top five risks can be found at Train Your Staff with Lessons from the Past.
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Berlin v. Nassau County Council, Boy Scouts of America, 229 A.D.2d 414, 645 N.Y.S.2d 90
Posted: October 25, 2010 Filed under: Legal Case, Minors, Youth, Children, New York, Summer Camp, Youth Camps | Tags: Adult Volunteer, Boy Scout, Boy Scouts of America, Brian Thomson, Florida, Nassau County New York, New York, New York City, Parental Responsibility; Youth Program, United States, Volunteer Leave a commentTo Read an Analysis of this decision see: Adult volunteer responsibility ends when the minor is delivered back to his parents.
Rita Berlin et al., Respondents,
vs.
Nassau County Council, Boy Scouts of America et al., Defendants, and Hugh Brickley, Appellant.
95-05684
Supreme Court Of New York, Appellate Division, Second Department
229 A.D.2d 414, 645 N.Y.S.2d 90, 1996 N.Y. App. Div. Decision
July 8, 1996, Decided
Devitt, Spellman, Barrett, Callahan, Leyden & Kenny, LLP., Smithtown, N.Y. (L. Kevin Sheridan of counsel), for appellant. Hershman & Leicher, P.C., New York, N.Y. (Harold M. Hershman of counsel), for respondents.
Pizzuto, J. P., Santucci, Altman and Hart, JJ., concur.
{*414} Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the complaint and cross claims insofar as asserted against the appellant are dismissed, and the action against the remaining defendants is severed.
Brian Thomson acquired a slingshot from a store in Florida while on a trip with his Boy Scout troop. The appellant Hugh Brickley and the defendants Kenneth Bistyga and Philip Lembo were the chaperones for the trip. Brickley immediately confiscated the slingshot and did not return it to Brian until after the trip when he left Brian with his parents in Delaware. Approximately one week later, after the Thomson family had returned to New York, the infant plaintiff Daniel Berlin was injured when he and Brian were playing with the slingshot in Daniel’s backyard.
Any duty on the part of Brickley to supervise or control the activities of Brian terminated when he returned the child to {*415} his parents‘ custody (see, Purdy v Public Adm’r of County of Westchester, 72 N.Y.2d 1, 8-9; see also, Pratt v Robinson, 39 N.Y.2d 554, 560; Griffith v City of New York, 123 A.D.2d 830, 832). Even assuming that Brickley was negligent in returning the slingshot to Brian, the alleged negligent supervision by Brian‘s parents, who were fully aware that he possessed and was using the slingshot, was a superseding intervening cause which attenuated any negligence on the part of Brickley from the ultimate injury to Daniel (see, Nolechek v Gesuale, 46 N.Y.2d 332, 338-339; Elardo v Town of Oyster Bay, 176 A.D.2d 912, 914). Consequently, Brickley’s motion for summary judgment should have been granted.
Pizzuto, J. P., Santucci, Altman and Hart, JJ., concur.
Adult volunteer responsibility ends when the minor is delivered back to his parents.
Posted: October 25, 2010 Filed under: Minors, Youth, Children, New York, Summer Camp, Youth Camps | Tags: Boy Scout, Boy Scouts of America, BSA, Parental Responsibility, Scout Troop, Scouting, Slingshot, Trauma, Volunteer, Volunteer Responsibility, Youth, Youth Trip Leave a commentThank heavens!
Berlin v. Nassau County Council, Boy Scouts of America, 229 A.D.2d 414, 645 N.Y.S.2d 90
A youth was on a trip with a Scout troop which is a program of the Boy Scouts of America (BSA). Sometime on the trip, the minor bought a slingshot. The slingshot was confiscated by a volunteer leader on the trip. At the end of the trip, the slingshot was given to the parents of the minor.
Later the minor was playing with the slingshot with another youth, and the other youth was injured by the slingshot. Either the minor had gotten the slingshot somehow or the parents had given the slingshot back to the minor, although this was not specifically stated in the opinion.
The parents of the minor injured by the slingshot, the plaintiffs, sued the volunteer adult leaders of the trip for the minor’s injuries.
The court in a succinct and short decision held the adult volunteers were not liable for the minor’s injuries. The basis for the decision was the action of the volunteer in giving the minor back to the parents was a superseding intervening act, which stops the claim.
A superseding act, eliminates the relationship between the damages which caused the injury and the duty owed. That means negligence cannot be proven. The damages are not proximate to the duty owed. Negligence has four parts, all which must be proven:
- A duty
- Breach of the duty
- Injury
- Damages proximately caused by the breach of duty.
The court’s decision says the fourth step cannot be proven because of the superseding act. The parents taking control of their child was an intervening act which the court said did not tie the duty and the damages to together legally. Stated another way, there was no relationship between the act of the volunteer and the injury received by the minor.
The plaintiffs seem to argue that the adult volunteer should not have given the slingshot back to the parents. However, the slingshot was a possession, a piece of property owned by the minor and as such, his parents. The slingshot was given back to the owners as required by the law.
So?
The relationship between a parent and a volunteer who is spending his or her time with the child is tenuous. As a volunteer you must be clear what your responsibilities are and are not going to be, as well as when that responsibility ends. It does not need to be so formal. It can simply be in the trip information that the kids have to be at the church by 7:00 PM and parents must pick their kids up Sunday at 2:00 PM at the church.
Most times, volunteers worry about injuries to the minor as a liability issue. There are other issues that can come up that you should be prepared to deal with.
Search and Rescue costs if a minor is lost can be substantial. (See No Charge for Rescue). Damages to property or injury to other minors can create liability for the adult volunteer responsible. A forest fire started by a minor can be costly. Even though most state courts will not allow a parent to release the claims of a minor for injuries, courts will allow releases or contracts where the parent agrees to pay for other claims the minor may create.
You can inform the parent and make sure they understand (meaning a written document) that they are responsible for any damages the minor may create for a reason other than injuries to themselves. I would include damages for the minor’s injuries on a different form. You do not want the court to throughout one release for the minor’s injuries when what you needed was protection for the damages done for the minors.
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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.
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Lawsuit filed over death of seven-year-old boy and city organized summer camp.
Posted: May 13, 2010 Filed under: Summer Camp Leave a comment
An attempt to take kids outdoors turned tragic with drowning death of young boy.
Miami Oklahoma is being sued by the parents of Kynnith Barnett. The suit is for $75,000 claims the city lacked adequate supervision and safety devices for his child at a city summer camp. The deceased was last seen at the summer camp trying to catch a fish in the creek. He was later found in the creek lifeless in the creek.
See Parents of drowning victim file lawsuit against City of Miami, Okla. and others and Funeral services set for 7 year old drowning victim.
What do you think? Leave a comment.
Keywords: outdoor law, recreation law, outdoor recreation law, adventure travel law, Miami, Oklahoma, Sycamore Valley Recreation Area,
Death we have commented on allegedly has a $14 million verdict
Posted: April 29, 2009 Filed under: Summer Camp 1 Comment
We reported in Lawsuit for Summer Camp Drowning that a family was suing a camp over the death of their young son. It has been reported by one source that a jury has returned a verdict against the camp for $14 million dollars. See Family gets $14 million in drowning. An announcement has not been made in the case because a gag order is in effect and the punitive damages face of the case is ongoing.
In some jurisdictions punitive damages are done post initial verdict. Punitive damages are damages awarded to punish the defendant or to warn other defendants not to engage in the same type of activities. Punitive damages are not dischargeable in bankruptcy and are usually not covered by insurance.
It is being reported that some defendants acted with “malice, oppression and fraud…” which gives rise to the punitive damages. It is also an indication that something other than a simple drowning was involved in this case.
Lawsuit for Summer Camp Drowning
Posted: December 9, 2008 Filed under: Summer Camp Leave a comment
The Gottsman family has filed a lawsuit over the death of their son Yoni Gottsman. Yoni was four years old at the time of his death while attending a summer camp at the Cathedral Oaks Athletic Club. The young boy was found floating face down in the pool. Based on surveillance video the family, through their attorney, claims there was no supervision at the pool. The lawsuit is claiming negligence, wrongful death and willful misconduct. The complaint alleges the life guards did not receive proper training and did not watch the campers well enough although this statement seems to be at odds with the claim that there was no supervision at the pool.
What stands out is the statement by the attorney for the plaintiff that claims the defendant “falsely advertised itself as a safe and secure environment for kids.” This is the second article in as many months claiming the statements made on the web gave rise to the lawsuit. See Children suing health club over death of parent: Mother was 70 and had heart disease. Remember: The promises made in your marketing are what you are forced to defend when you are on the stand in a lawsuit.
Surveillance video is so common that we ignore it now days. The allegations in the complaint are the video shows a counselor dunking the deceased before he drowned.
What seems to have triggered the anger leading to the lawsuit was the refusal of the district attorney to file criminal charges in the matter. There is a clear misunderstanding of the differences between criminal law and civil litigation. This desire to prosecute is reinforced in statements made by the plaintiff’s attorney who says they intend to dig up evidence to bring the case back to the district attorney.
The plaintiff’s attorney is probably paid based on what he recovers. He will not be paid to dig up a criminal case.
See Lawsuit filed in drowning death at Cathedral Oaks and Family Files Lawsuit After Summer Camp Drowning.
Lawsuit is coming, Anger has not subsided
Posted: November 4, 2008 Filed under: Summer Camp Leave a commentAn alleged fault aids in creating basis for dealing with anger
Numerous stories have been reported by WKBW TV of Buffalo New York over the death of a young girl who fell in a river on a field trip at a “summer camp.” The summer camp was allegedly not licensed by the state to operate as a summer camp.
The field trip occurred by the Niagara River where the 12 year old girl fell into the river. Her body was not found for several days.
The TV station reports have focused on the families repeated statements about demanding justice. The case is also gaining headlines because the district attorney is looking into the case. The district attorney has still not filed charges in the case.
The TV station has filed five stories over the incident and the word justice was a key word in three of the five articles and two of the five headlines. However a civil lawsuit is not going to give the families justice.
The family believes, like most Americans that the court system can solve all problems. It can’t. The courts in 99.9% of the cases can only move money from one side of the courtroom to the other, or in some cases prevent the movement of money. The courts cannot provide justice, answers, satisfaction, relief, absolution or help anyone overcome the loss of a loved one.
However a good plaintiff’s attorney can convince the family that justice is achieved if money is received. Besides, by the time a settlement or trial occurs the family will be so tired and destroyed that anything to get the case over can be turned into justice. See Litigation costs a lot of money.
Money is not justice, especially in a civil lawsuit. Most times the money comes from an insurance company who cares, at best about the loss, but cares more about the money. So the defendant feels little pain, other than the time and energy to defend the litigation.
Another issue will be tying the failure to obtain state licensing to the loss of the child. It is not negligence to not be licensed. It may be negligence per se, but that still may not relate back legally. What the plaintiff’s attorney must do is find a section of the licensing that would have, if licensed, prevented the girl’s death.
However that will not have to be done well or soon. Breaching a state regulation or statute can always be claimed to be a breach of the standard of care, the first step in proof of negligence. Whether or not the plaintiff’s attorney will be able to tie the legal connection together will depend on how well the connection can be made, how much money it takes to fight the lawsuit, and whether the attorney can convince a jury that the emotional issues out weight the legal issues.
Not one of those steps really deals with the point. Did the defendant do something wrong. That answer will answer the question in the end as to whether the family receives the justice it is seeking.
See (in reverse chronological order) Family of NYC Girl Plan to File Lawsuit, Family of Falls Drowning Victim Demands Justice, Girl Who Drowned in Niagara River, Laid To Rest, Body Identified as Missing NYC Girl, and Parents of Missing Girl Seek Justice.
Litigation and Estate Planning gone wrong
Posted: October 23, 2008 Filed under: Summer Camp Leave a commentMany businesses will set up complicated structures in an attempt to avoid estate tax, (which is called estate planning) or to make the business less appealing in a possible lawsuit. Both of these are great ideas. Some estate planning ideas work great as litigation prevention ideas and vice versa. In both cases the person who owns the assets is trying to divide them up to make them harder to get and make the entire estate less valuable. In reality, a plaintiff and the IRS are both possible creditors to your income and assets.
There are sometimes other reasons for doing this. These reasons include separating the liability from the assets, making it easier to get loans, lowering insurance costs, or maybe to bring family members or valued employees into the business by giving them an equity position.
One of the issues that always pop up is control. It is difficult to effectively split up an asset so a plaintiff’s attorney or the IRS; possible creditors do not look at it as available. Besides changing the name the real issue is whether or not the original owner, the person who is attempting to lower the value of their estate, still has control over the asset.
The Kerrville Daily Times is reporting in Camp Mystic embroiled in lawsuit about a lawsuit where the original owner is attempting to regain control over his assets. Camp Mystic is a Christian summer camp that has been around for more than 50 years. About 10 years ago the camp was split into two entities. One which owned the land and one which ran the camp. Both entities were owned by the original family members and some new family members. Now they are all involved in litigation arguing they owe each other money, have undervalued or ruined the original asset and in general calling each other names.
If it were not sad, the description of what happened and now who is suing who is almost comical.
At the heart of the litigation is lease payments owed by one entity to the other. To make the split legally effective the parties have to not only go through the process of changing the ownership but must also, if necessary contract with each other. In this case the camp signed a lease agreement to rent the land from the entity that owned the land.
These blog is too short and not directed at providing all of the legal answers to dealing with these issues. However we can point out some simple do’s and don’ts so you can have an idea of how to proceed.
The only entity to use for anything in the future is the Limited Liability Company, an LLC. It requires less paperwork to create and run than any other entity. It still requires paperwork to create, both an organizational agreement which is required to be filed with the secretary of state and an operational agreement which most people skip. If you don’t have an operational agreement, you don’t have an LLC according to creditors and they can have the LLC voided and attack you personally.
An LLC can be taxed the way you want it to be taxed, including taxed as a subchapter S. Subchapter S is not a type of corporation or entity. Subchapter S is how the entity is going to be taxed. Most Subchapter S’s were regular corporations in the past. The name Subchapter S came from the chapter of the IRS regulations that created this taxing scheme. Corporations are taxed under Chapter C and Sub-Chapter S is the Subchapter S taxing scheme for used to be solely corporations and now includes LLC’s.
The worst situation to be in is a Partnership. A partnership is created always when two or more people go into business together and do not create an LLC or a corporation. Partnerships have two major flaws, besides hundreds of minor flaws. The first is any partner act holds all partners liable for his or her actions. One partner in an automobile accident doing partnership business can put all of the other partner’s assets, including their homes at risk. The second is getting divorced is usually cheaper and easier than breaking up a partnership.
Splitting up a business into separate entities is a good idea. Keeping the land, the concession or permit, and the operation in different entities is easy, cheap and helps to make sure no lawsuit will bring the business down. These entities also make it easier in some cases to get loans, to bring family members into the business and to possibly cut estate and other taxes. It may also help move income to individuals or entities with lower tax brackets. Finally it allows you to pick in some cases how the income will be taxed by sending the income to the entity with the type of tax entity you need.
You have to make sure though that you have created the proper relationship between the entities. If you are going to use the land, the entity using the land must lease the land with a proper fair market value lease agreement. An entity that owns major operating assets such as boats, vehicles or machinery must have proper lease agreements back to the operating entity. Both of these entities must receive fair market value lease payments from the operating entity.
There are some better entities to use as a Limited Liability Partnerships or Limited Liability Limited Partnerships but there is not enough time here to get into them.
Anytime you look into these types of planning you must involve your CPA. Also important as evident by the Camp Mystic lawsuit, you have to make sure that you understand who is in control of the entities and how they are going to be operated. Proper paperwork is the key to making sure you don’t lose everything you have worked hard to build.
Town sued over “camp” near drowning
Posted: September 9, 2008 Filed under: Summer Camp Leave a comment
Many community recreation programs have summer camps for the kids in their community. These camps are not the pack a trunk and go to the woods, but a program where the kids are entertained and energized through part or all of the summer in the local recreation program. They may take field trips, but they usually spend every night in their own beds at home. It is a cheap, sometimes free way for parents to not worry about their kids or hire someone to watch them while they work.
Most of these programs have some type of swimming/water activity. In this case the program allowed swimming as part of its program. There were allegedly six counselors, one assistant counselor and five lifeguards on duty when a camper nearly drowned during this program. The camper now suffers from serious brain injury and his parents have sued the town and many of the counselors.
There is an interesting discussion in the article about why the plaintiff sued the individual counselors. Probably because the town that ran the camp has governmental immunity defenses that the individuals do not. However, as an employee, the town is providing the defense of the individual counselors in this action. Again this is a review of a lawsuit by a non-lawyer, being interpreted by a lawyer so the facts are very confusing.
First remember that an injury like this is expensive. There is no way that you can have enough health insurance to cover all of the medical costs. Usually insurance stops, at some point and the home care costs start to rise. This looks like a forever financial nightmare. You cannot buy disability insurance on a minor. To some extent you can understand the reasons for the lawsuit from a financial perspective. The cost to this family in dollars is never going to end.
The emotional cost is also unlimited.
What struck me as tragic, as of these cases are and at the same time very interesting is the statement released by the family.
“On behalf of our son, we have filed a lawsuit because, despite the best efforts of so many dedicated physicians, therapists, and teachers, Chandler has been left with a serious brain injury that affects him every day. This injury was preventable and occurred because of the negligence of people to whom we had entrusted our son.
“However, we are grateful for the support that our family has received from the community in Redding and regret the fact that all of the persons named in our suit needed to be defendants as we had hoped that the town would have accepted responsibility for its employees and this tragic event.
“We understand that the town reviewed and revised its procedures at Topstone after Chandler was injured and that the state of Connecticut has recently undertaken a review of the procedures at all state parks as well. We sincerely hope that these steps prevent another young child from nearly drowning,”
This press release was not written by a grieving family. A few of the lines seem to indicate they had some input into the press release. But overall it just does not sound like what parents of a severely injured young boy would say.
This press release is what occurs when attorneys get involved. Obviously they were involved quite early from the way the article describes the facts. What we don’t know but can surmise is why the attorneys were involved so early. The parents wanted to know what happened. Towns, cities, governmental entities always have risk managers and attorneys and probably the family was stonewalled. Probably the only answers they received were from the police investigation.
If you had a loved one severely injured you probably would want to talk to someone about what happened. If you had a child injured you would want to know what happened. I suspect that this family will never really find out.
However from previous articles you can clearly see the handiwork of several years of law school versus no lawyers in the case. This is a no win situation for everyone.
Marx family is suing town over near drowning
Camp Business July/August 2008
Posted: August 19, 2008 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Summer Camp Leave a comment
July 7, 2008
Rodney J. Auth, Publisher
Camp Business
PO Box 1166
Medina, OH 44258-1166
Re: Good Sense: The legalities of horseback riding at camp
Camp Business July/August 2008
Dear Mr. Auth:
The article Good Sense was very well written and very informative. I would like to point out two instances where the story may be misleading.
In the story the statement is made that liability releases may deter lawsuits but not for negligence. Releases stop lawsuits based on claims for negligence in 45 out of 50 states. Releases do not work for claims made by minors except in three states: California, Colorado and Ohio. The Florida Supreme Court is currently looking at this issue. So releases do work to stop suits, they only work when signed by someone over the age of consent.
The article also states that horses are “attractive nuisances.” They are not. An attractive nuisance is a condition on the land or a premises issue. The definition usually revolves around the term “artificial condition” upon the land.
Tennessee used the term creates a condition to define attractive nuisance as:
One who has that on his own premises, or who creates a condition on the premises of another, or in a public place, which may reasonably be apprehended to be a source of danger to children of tender years, is under a duty to take such precautions as a reasonably prudent person would take to prevent injury to such children whom he knows to be accustomed to resort there, or who may, by reason of something there which may be expected to attract them, come there to play. Mead v. Parker, 340 F.2d 157; 1965 U.S. App. LEXIS 6909
The basis of the doctrine is to protect children from dangerous conditions on the land. Farm animals and pets have never been considered an attractive nuisance. A child should be instructed by their parents as to the dangers present in land; it is the special features of the premises created by man that a child may not know about that creates the liability.
The best example is a swimming pool is an attractive nuisance and a pond is not.
This article is needed because too often camps rely on equine liability acts to protect their business. When speaking to groups about equine liability acts I always make sure I tell them that those laws are 100% effective. Since their enactment no horse has been sued. However suits against horse owners have not changed. A horse cannot be held liable for negligence, which is what the acts cover, but a horse owner still can.
Sincerely,
James H. Moss
Editor Outdoor Recreation Law Review
www.snewsnet.com/lawreview
http://rec-law.blogspot.com/
Large Jury Award in death of 9 year old Camper
Posted: March 31, 2008 Filed under: Paddlesports, Summer Camp | Tags: American Canoe Association, Camp Ozark, Canoe Trip (Crabapples), Canoes and Kayaks, Houston Chronicle, Sports, Water Sports 1 CommentA jury awarded $5 million dollars over the death of Sam Schubert when he was pinned under his canoe on a camp river trip. The Houston Chronicle reported the case in Trial in canoeing death of boy, 9, begins that the boy was at Camp Ozark and on a canoe trip when he was trapped in a strainer. The article pointed out the leader of the canoe trip was not certified in canoeing. The Injuryboard.com reported the jury awarded more than $5 million Summer Camp Found Negligent in Boy’s Death.
This is another example where marketing programs are creating lawsuits. The outdoor industry is running around madly attempting to get new business and at the same time hold itself out as safe. The word certification is touted as the end all be all of that issue. Here because the canoe trip leader was not certified, then the camp had to be at fault.
Image via Wikipedia
The American Canoe Association, ACA has been teaching canoeing for almost 100 years. They also teach people to teach canoeing. They call the people who pass its canoe teaching course as certified. They not offer certification for anything else. They do have courses in any other aspects of canoeing and kayaking, and they don’t certify anyone in those disciplines.
The trial in this case was appealed to the Texas Appellate Court NO. 14-02-00723-CV, Ozark Interests, Inc., d/b/a Camp Ozark and Ozark Boys Club, and R. Sam Torn, appellants v. Allen Schubert and Majorie Schubert, individually and on behalf of the Estate of Samuel Schubert, a minor, deceased, Appellees. However the appeal was dismissed because the case was settled. No additional information can be found, but usually this means the parties negotiated a deal, usually for less than the jury award.
