What is a Risk Management Plan and What do You Need in Yours?

Everyone has told you, you need a risk management plan. A plan to follow if you have a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?

This book can help you understand and write your plan. This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you plan is a workable plan, not one that will create liability for you.

 

                                             Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

               $99.00 plus shipping


What is a Risk Management Plan and What do You Need in Yours?

Everyone has told you, you need a risk management plan. A plan to follow if you have a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?

This book can help you understand and write your plan. This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you plan is a workable plan, not one that will create liability for you.

 

                                             Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

               $99.00 plus shipping


Philmont Scout Ranch Cancels all Trips, Treks and Backcountry Programs for Summer of 2018

PHILMONT SCOUT RANCH ANNOUNCES CLOSURE FOR 2018 SUMMER SEASON – 7/5/18

After careful consideration of the situation and available options, the difficult but prudent decision has been made that the Philmont backcountry will remain closed for treks and individual programs for the remainder of the 2018 summer season. This means that the following programs scheduled for this summer are canceled: 7- and 12-day treks; and individual backcountry programs, including Rayado, ROCS, Trail Crew, STEM and Ranch Hands.

Refund Checks for all affected crews will be sent to the lead contact advisor on Monday, July 9, 2018. Over the next few days, our staff will be contacting the lead advisor or contingent leader of these crews confirming the refund, offering a trek at Philmont for the 2020 season, and answering any questions. Please wait and allow the Philmont team to contact your crew – your assistance will help make sure that Philmont phone lines remain open. Your cooperation will be most appreciated. While High Adventure opportunities are at capacity at Northern Tier and the Florida Sea Base, there are opportunities at The Summit and they would be happy to accommodate your crew.

This has been a difficult and at the same time inspiring summer at Philmont. For the first time in its history, Philmont is closing its backcountry. As difficult as this situation has been for our Philmont family and for Scouts across our country, we have been truly inspired by the incredible enthusiasm and perseverance shown by our staff, the resourcefulness displayed by displaced crews to find other summer adventures, and the understanding and good wishes from thousands of Scouts and Scouters from around the world. For all of these blessings, we are truly grateful.

Fire danger in northern New Mexico is currently classified as “extreme.”

The fire danger has led to closure of most public lands near Philmont. The Carson National Forest’s nearby Questa and Camino Real Ranger Districts, including the Valle Vidal area that Philmont utilizes, have been closed to public access. The New Mexico Game and Fish Department has similarly closed all of its properties that border Philmont, including the Colin Neblett Wildlife Management Area on our western border and the Elliott S.

Barker Wildlife Management Area adjacent to our North Country. Links to these closure notices are included at the end of this release.

On Friday, June 29, 2018, the Morris (Moras) Creek fire started south of the Philmont property line on private neighboring property near the Rayado River Canyon. This fire is currently more than 1500 acres and is burning on Philmont property.

Our ranch managers, volunteer leaders, and national staff have monitored the situation since the Ute Park fire began and attempted to plan alternate trek routes and procedures required by Philmont to manage backcountry emergencies. Because of the Morris (Moras) Creek fire, these alternate trek routes have now been eliminated. The safety of our youth participants, volunteers and staff is the priority at Philmont Scout Ranch and for the Boy Scouts of America.

This decision applies only to Philmont’s backcountry programs. Philmont’s Camping Headquarters and Base Camp area, the Philmont Training Center, the new National Scouting Museum, the Chase Ranch, and the Kit Carson Museum at Rayado will remain open all summer. Training courses at the Philmont Training Center and the National Advanced Youth Leadership Experience

(NAYLE) will proceed as scheduled. This decision does not affect Philmont’s fall programs, including Autumn Adventure and fall PTC training conferences.

The Philmont ranger motto is “scramble – be flexible.” That’s what we at Philmont have been doing all summer as we deal with these unexpected and unfortunate circumstances. Our terrific summer staff has embraced challenges that they didn’t anticipate when they signed on. They expected to be delivering awesome backcountry programs and inspiring high adventure experiences to thousands of Scouts and Scouters. Instead, they have enthusiastically taken on difficult and physically taxing timber stand improvement projects, backcountry fire abatement work, community service projects, and staff jobs at other camps. They are making sure we will be ready to re-open next year! Their willingness to roll up their sleeves, pitch in and meet the challenges we have faced reflects the very best on Scouting and our nation’s youth. They have our sincere thanks!

Our National BSA leadership has been working with airlines to assist crews with refunds, changes, and credits. Please refer to the following contacts for support.

American Airlines—-1-800-221-2255

Southwest Airlines—1-800-435-9792

Alaska Airlines


I will be receiving the Silver Beaver Honor from the Denver Area Council, Boy Scouts of America this March.



It is truly an honor to be recognized by this organization

However, I could not have received this honor without the hard work and dedication of the volunteers of the Timberline District, Denver Area Council, Boy Scouts of America.

They do all the hard work, I just look good because of their efforts.

Thank you.


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

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

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

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

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

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

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

Defendant Defenses: Assumption of the Risk, No Duty

Holding: For the defendant

Year: 2006

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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Elliott, v. Carter, 2016 Va. LEXIS 151

Chancy M. Elliott, Administrator of the Estate of Caleb Mckinley Smith, Deceased v. Trevor Carter

Record No. 160224

SUPREME COURT OF VIRGINIA

October 27, 2016, Decided

PRIOR HISTORY: [*1] FROM THE CIRCUIT COURT OF RICHMOND COUNTY. Harry T. Taliaferro, III, Judge.

Elliott v. Carter, 2016 Va. LEXIS 49 (Va., Apr. 12, 2016)

DISPOSITION: Affirmed.

COUNSEL: David R. Simonsen, Jr. (Keith B. Marcus; ParisBlank, on briefs), for appellant.

W.F. Drewry Gallalee (Harold E. Johnson; Williams Mullen, on brief), for appellee.

JUDGES: OPINION BY JUSTICE S. BERNARD GOODWYN. JUSTICE McCULLOUGH, with whom JUSTICE MIMS joins, dissenting.

OPINION BY: S. BERNARD GOODWYN

OPINION

PRESENT: All the Justices.

OPINION BY JUSTICE S. BERNARD GOODWYN

In this appeal, we consider the evidence required to submit a question of gross negligence to a jury.

Background

This matter arises from a wrongful death suit brought by Chancy M. Elliott (Elliott) on behalf of the estate of Caleb McKinley Smith (Caleb), alleging gross negligence on the part of Trevor Carter (Carter), the peer leader of Caleb’s Boy Scout troop, after Caleb drowned on a Scout camping trip. The material facts are not in dispute.

On June 25, 2011, Caleb was a 13-year-old Boy Scout on an overnight camping trip with his troop along the Rappahannock River near Sharps, Virginia. Carter, then 16 years old, was the Senior Patrol Leader, the troop’s peer leader. Caleb had been taking lessons to learn how to swim–he had had one from Carter that morning–but he could [*2] not yet swim.

At about 11:00 a.m., Carter led Caleb and two other Boy Scouts into the river along a partially submerged sandbar. One of the other two Scouts could swim (Scott), and the other could not (Elijah).

When they were approximately 150 yards into the river, Carter and Scott decided to swim back to shore. Carter told Caleb and Elijah to walk back to shore the way they had come, along the sandbar. As Caleb and Elijah walked back to shore along the sandbar, they both fell into deeper water. Caleb yelled to Carter for help and Carter attempted to swim back and rescue him. Although Elijah was rescued, neither Carter nor three adult Scout leaders, who attempted to assist, were able to save Caleb.

Elliott filed a wrongful death action in the Circuit Court of Richmond County against Carter, four adult Scout leaders, the Boy Scouts of America, and the affiliated Heart of Virginia Council, Inc. (collectively, Defendants), alleging that they had failed to adequately supervise Caleb. The court granted the Defendants’ demurrer asserting charitable immunity.

Elliott amended her complaint to allege both gross and willful and wanton negligence by Carter and gross negligence by the four adult Scout [*3] leaders, and demanded a jury trial.* Defendants filed a motion for summary judgment arguing that, based upon undisputed material facts, there was no gross negligence because there was no complete lack of care alleged and the danger of drowning was open and obvious. Defendants relied upon Elliott’s responses to requests for admission and allegations in the amended complaint in establishing the undisputed material facts.

* Elliott non-suited the actions against the Boy Scouts of America and the Heart of Virginia Council, Inc.

Following a hearing and supplemental briefing, the court granted the motion for summary judgment as to all Defendants. It found that, while the undisputed material facts would be sufficient to submit the question regarding a claim of simple negligence to a jury, the facts did not support a claim for gross negligence, because in Virginia, “there is not gross negligence as a matter of law where there is even the slightest bit of care regardless of how insufficient or ineffective it may have been,” and there was evidence that Carter did try to save Caleb.

Elliott appeals the ruling of the circuit court only as to Carter. On appeal, she argues that the circuit court erred [*4] in granting summary judgment and in concluding that, as a matter of law, a jury could not find Carter’s actions constituted gross negligence.

Analysis

[HN1] “In an appeal from a circuit court’s decision to grant or deny summary judgment, this Court reviews the application of law to undisputed facts de novo.” St. Joe Co. v. Norfolk Redev’t & Hous. Auth., 283 Va. 403, 407, 722 S.E.2d 622, 625 (2012).

[HN2] Gross negligence is “a degree of negligence showing indifference to another and an utter disregard of prudence that amounts to a complete neglect of the safety of such other person.” Cowan v. Hospice Support Care, Inc., 268 Va. 482, 487, 603 S.E.2d 916, 918 (2004).

It is a heedless and palpable violation of legal duty respecting the rights of others which amounts to the absence of slight diligence, or the want of even scant care. Several acts of negligence which separately may not amount to gross negligence, when combined may have a cumulative effect showing a form of reckless or total disregard for another’s safety. Deliberate conduct is important evidence on the question of gross negligence.

Chapman v. City of Virginia Beach, 252 Va. 186, 190, 475 S.E.2d 798, 800-01 (1996) (citations and internal quotation marks omitted). [HN3] Gross negligence “requires a degree of negligence that would shock fair-minded persons, although demonstrating something less than willful recklessness.” Cowan, 268 Va. at 487, 603 S.E.2d at 918; see also Thomas v. Snow, 162 Va. 654, 661, 174 S.E. 837, 839 (1934) (“Ordinary and gross negligence differ in degree of inattention”; [*5] while “[g]ross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence,” “it is something less than . . . willful, wanton, and reckless conduct.”).

[HN4] “Ordinarily, the question whether gross negligence has been established is a matter of fact to be decided by a jury. Nevertheless, when persons of reasonable minds could not differ upon the conclusion that such negligence has not been established, it is the court’s duty to so rule.” Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691, 4 Va. Law Rep. 1220 (1987). Because “the standard for gross negligence [in Virginia] is one of indifference, not inadequacy,” a claim for gross negligence must fail as a matter of law when the evidence shows that the defendants exercised some degree of care. Kuykendall v. Young Life, 261 Fed. Appx. 480, 491 (4th Cir. 2008) (relying on Frazier, 234 Va. at 392, 362 S.E.2d at 690-91, Chapman, 252 Va. at 190, 475 S.E.2d at 801, and Cowan, 268 Va. at 486-87, 603 S.E.2d at 918 to interpret Virginia law); see, e.g., Colby v. Boyden, 241 Va. 125, 133, 400 S.E.2d 184, 189, 7 Va. Law Rep. 1368 (1991) (affirming the circuit court’s ruling that the plaintiff failed to establish a prima facie case of gross negligence when the evidence showed that the defendant “‘did exercise some degree of diligence and care’ and, therefore, as a matter of law, his acts could not show ‘utter disregard of prudence amounting to complete neglect of the safety of another'”).

Here, even viewing the evidence in the [*6] light most favorable to Elliott, the non-moving party, as required in considering a motion for summary judgment, Commercial Business Systems v. Bellsouth Services, 249 Va. 39, 41-42, 453 S.E.2d 261, 264 (1995), the undisputed material facts support the conclusion that Carter exercised some degree of care in supervising Caleb. Therefore, his conduct did not constitute gross negligence.

First, it is not alleged that Caleb had any difficulty walking out along the sandbar with Carter. Second, there is no allegation that Carter was aware of any hidden danger posed by the sandbar, the river or its current. Third, Carter instructed Caleb to walk back to shore along the same route he had taken out into the river, and there was no evidence that conditions changed such that doing so would have been different or more dangerous than initially walking out, which was done without difficulty. Finally, Carter tried to swim back and assist Caleb once Caleb slipped off the sandbar, which is indicative that Carter was close enough to attempt to render assistance when Caleb fell into the water, and that Carter did attempt to render such assistance. Thus, although Carter’s efforts may have been inadequate or ineffectual, they were not so insufficient as to constitute the indifference and utter disregard [*7] of prudence that would amount to a complete neglect for Caleb’s safety, which is required to establish gross negligence.

Because a claim of gross negligence must fail as a matter of law when there is evidence that the defendant exercised some degree of diligence and care, the circuit court did not err in finding that no reasonable jurist could find that Carter did nothing at all for Caleb’s care. As such, there was no question for the jury, and the circuit court properly granted Carter’s motion for summary judgment.

Accordingly, the judgment of the circuit court will be affirmed.

Affirmed.

DISSENT BY: McCULLOUGH

DISSENT

JUSTICE McCULLOUGH, with whom JUSTICE MIMS joins, dissenting.

Ordinarily, whether gross negligence has been established is a matter of fact to be decided by a jury. Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691, 4 Va. Law Rep. 1220 (1987). Of course, when “persons of reasonable minds could not differ upon the conclusion that such negligence has not been established, it is the court’s duty to so rule.” Id. In my view, the facts presented in this tragic case were sufficient to present a jury question. Accordingly, I respectfully dissent.

Here, Caleb could not swim, a fact that was known to the defendants. He did not walk out on his own into the river. Rather, he was [*8] led, without a life jacket or other safety equipment, over a partially submerged sandbar far into the river. The complaint alleges that “the Rappahannock River . . . is a major river with a strong current.” Caleb was then abandoned on a sandbar in the middle of the river and told to walk back. A partially submerged sandbar in the middle of a river with a strong current is a very dangerous place to be, particularly for a non-swimmer without a life vest. Ever-shifting sandbars, obviously, are not stable structures. They can easily dissipate. A major river with strong currents like the Rappahannock presents a different situation than a tranquil pond. Carter then swam away too far to effectuate a rescue should Caleb slip and fall into the river. In my view, “reasonable persons could differ upon whether the cumulative effect of these circumstances constitutes a form of recklessness or a total disregard of all precautions, an absence of diligence, or lack of even slight care.” Chapman v. City of Virginia Beach, 252 Va. 186, 191, 475 S.E.2d 798, 801 (1996).

I would also find that the purported acts of slight care, separated in time and place from the gross negligence at issue, do not take the issue away from the jury. The only two acts of slight care the defendants identify [*9] are the fact that Caleb was given a swimming lesson before he drowned — but there is no indication that Caleb could swim — and that Carter, after swimming too far away to make any rescue effectual, tried to swim back to save Caleb after he had fallen into the river. Significantly, Carter led Caleb into danger in the first place. When the defendant has led the plaintiff into danger, an ineffectual and doomed to fail rescue attempt does not in my judgment take away from the jury the question of gross negligence. Accordingly, I would reverse and remand the case for a trial by jury.


New York Summer Camp cases are examples of helicopter parenting; I gave you a perfect child, and no injuries shall occur to my child in your care, if one occurs, I will sue.

A minor at a Scout camp runs out of a shower house and falls down. The parents sue for his injuries claiming he was not supervised. At the same time, the BSA Youth Protection Training prevented adults in showers with youth. The court in this case realized the absurdity of the plaintiff’s claims and held for the defendants.

Gomes v. Boy Scouts of America, et al., 51 Misc. 3d 1206(A); 2016 N.Y. Misc. LEXIS 1088; 2016 NY Slip Op 50444(U)

State: New York, Supreme Court of New York, New York County

Plaintiff: Davide E. Gomes

Defendant: Northern New Jersey Council, Inc., Boy Scouts of America (Council) and Boy Scout Troop 141 (troop)

Plaintiff Claims: negligent supervision

Defendant Defenses: assumption of the risk, no duty

Holding: for the defendants

Year: 2016

The thirteen-year-old  plaintiff was a Boy Scout. He and his troop from New Jersey were at a Scout Camp in the Adirondacks of New York for a canoe trip. While at the camp, the youth walked a few minutes to a bath house. While in the bath house, the plaintiff was fooling around and ran out of the bath house and fell suffering a head injury.

According to plaintiff, the main purpose of the trip to Floodwood was to take a 15-mile canoe trip. On the day of the accident, the scouts and the Troop leaders spent time outside in their campsite within the camp, where “there was a little bit of horsing around,” “a little bit of pushing, playing around,” and all of the scouts were pushing and shoving each other during and after a game of touch football, which the leaders told them to stop. As he walked to the shower house the night of his accident, plaintiff wore a functioning headlamp; the area around the shower house was dark. He does not recall what happened from the time the group walked to the shower house to when he regained consciousness on the ground, bleeding from his head.

The plaintiff does not remember the incidence.

Other Scouts at the shower house reported the incident this way.

It is undisputed that other scouts reported that while they were in the shower house, plaintiff took a water pump from the wall and squirted water on them. When one of the scouts told him to stop, plaintiff ran out of the shower house and fell to the ground. None of the scouts knew what had caused the fall.

The plaintiff had been in Scouting since he was 9. He participated  in monthly camp outs with his scout troop.

The plaintiffs brought claims against the troop, the New Jersey Boy Scout council where the troop was chartered and who owned the camp and the Boy Scouts of America and the individual unit leaders.

The claims where the youth were not properly supervised, and the area around the shower house were full of roots, sticks, rocks, etc.

One issue that runs throughout the decision which is not explained is the BSA Youth Protection Program. The program requires youth to always do things in groups or at least two and prohibit adults from actively being in a position where they can observe the youth in the shower.  Even if an adult was with the youth, there would have to be two adults.

This program was put in place to protect both the youth and the adults in the Scouting program.

Another issue in this case is the camp was located in New York. The New York State Department of Health (DOH) had massive and strict rules for children’s camps and substantial ability to issue sanctions for violations of those rules. Some of those rules violate or make conforming to the BSA Youth Protection Program difficult.

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

The court first looked at the New York State Department of Health (DOH) rules concerning this case.

As pertinent here, the regulations require adequate supervision, and that “as a minimum . . . there shall exist visual or verbal communications capabilities between camper and counselor during activities and a method of accounting for the camper’s whereabouts at all times.”

The council had a written plan to confirm to the DOH rules.

Council’s written plan for Floodwood requires that supervision of campers “be maintained for the duration (24/7) of their stay at the camp.” Council’s Leaders Guide for Floodwood provides that “running and horseplay have no place at Scout Camps,” and all scout units must have two adult leaders with the unit at all times.

DOH did find issues with the camp’s plan. The Camp and DOH reached a settlement on those issues. However, by law the information and the settlement cannot be entered into evidence in court.

DOH investigated the incident, after which it and Council entered into a stipulation providing that DOH had alleged that Council had violated various camp regulations, including those relating to the supervision of scouts, and that the parties were thereby settling the matter by Council agreeing not to contest it, paying a fine, and submitting a revised camp safety plan. Additionally, by its terms, the stipulation is

not intended for use in any other forum, tribunal or court, including any civil or criminal proceeding in which the issues or burden of proof may differ, and is made without prejudice to [Council’s] rights, defenses and/or claims in any other matter, proceeding, action, hearing or litigation not involving [DOH] [and] is not intended to be dispositive of any allegations of negligence that may be made in a civil action for monetary damages.

The DOH requires that after any incident, a form be completed. In this case, the form was completed by a camp staffer who had no training in completing the form and had never completed a form before. DOH requires that after any incident a form be completed. In this case the form was completed by a camp staffer who had no training in completing the form and had never completed a form before.

Richard Saunders testified at an EBT that at the time of plaintiff’s accident, he was 18 years old and employed at Floodwood as a camp health officer. He described Floodwood as a “high-adventure base” for scouts older than 13 to do back-country exploring. After the accident, he completed a form as required by the DOH, on which he noted, under the category “Supervision During Incident,” that the “activity was inadequately addressed in the written plan,” by which he intended to convey that he had reviewed the scout’s written plan for the trip and saw nothing therein related to super-vision of the scouts while in the shower house. He also wrote that no camp staff was present when the accident occurred. Although Saunders had first written that the supervision was “adequate,” he changed it to “inadequate” based on the absence of an adult when plaintiff was injured. Saunders had never before filled out such a form, nor was it part of his job.

The plaintiff argued that because he was unable to remember the accident, a relaxed standard of care applied to the plaintiff’s case.

Plaintiff argues that his inability to remember the accident permits a relaxed standard of proof on summary judgment, and contends that there are two possible explanations for his accident: (1) that he was struck over the head with a blunt object by a fellow scout, or (2) that he tripped and fell while running over the uneven and non-illuminated area around the shower house, and that in either scenario, the accident would not have happened if defendants had adequately supervised that night.

The court found issues with this.

A plaintiff who, due to a failure of memory, cannot describe what led to his injury is not held to as high a degree of proof on his or her cause of action.

However, even when a plaintiff suffers from amnesia, he is not relieved of the obligation to provide “some proof from which negligence can be reasonably inferred.”

The court then looked at the duty owed by the defendants.

A “summer camp is duty-bound to supervise its campers as would a parent of ordinary prudence in comparable circumstances” And, while the degree of supervision required depends on the surrounding circumstances, “constant supervision in a camp setting is neither feasible nor desirable.”

The New York requirement for supervision allowed for reality in not requiring constant supervision. The court then looked at the applicable standard of care.

The standard for determining whether a duty to supervise a minor has been breached is “whether a parent of ordinary prudence placed in the identical situation and armed with the same information would invariably have provided greater supervision.”

Moreover, this standard requires prior knowledge on the part of the camp of dangerous conduct.

Moreover, “in determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow [campers], it must be established that [camp] authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury, that is, that the third-party acts could reasonably have been anticipated.”

Lack of supervision alone is not enough to create a cause of action. The court found the supervision was adequate. The scouts walked to the shower house as a group without incident. Until the plaintiff started horsing around, there were no supervision issues.

The court then looked at why kids go to camps and how parents should deal with those issues.

Moreover, a parent who permits his or her child to attend an overnight camping trip in the woods where the child will be taught skills related to understanding and surviving outdoor conditions, is presumably aware of the hazards and risks of injury associated with such conditions, and it would be illogical for that same parent to require or believe it necessary for the child to be escorted personally to and from every area within the camp. Such a degree of supervision “in a camp setting is neither feasible nor desirable” and camps “cannot reasonably be expected to continuously supervise and control all of [the campers] movements and activities”

Quoting another case the court stated:

The Court observed that ” [r]emembering that this is a Summer camp, it will be seen that constant supervision is not feasible . . . Nor is it desirable. One of the benefits of such an institution is to inculcate self-reliance in the campers which an overly protective supervision would destroy.”

The DOH report was also dismissed by the court because the person who had completed the report:

…because he had no authority to bind defendants to his conclusion, but also based on the circumstances that he was an 18-year old who had never before filled out or even seen a DOH report, and who had received no training or guidance as to how it should be filled out or the meanings of the terms therein.

The court reasoned. The DOH report also had failures because it stated there lacked supervision just because an adult was not present. Supervision is not only based on an adult’s presence.

Reliance on the DOH requirement of “visual or verbal communication” between campers and counselors and Council’s plan for Floodwood which required the supervision of campers “24/7” is misplaced as neither requires that the Troop leaders be constantly present with the scouts

At the same time, the supervision issue was irrelevant if the accident was not foreseeable. There was no evidence presented that the scouts would engage in dangerous conduct or misbehave. Even if some of the misbehavior was foreseeable, there was no evidence that, and it was not foreseeable that the plaintiff would bolt from the shower house, trip and fall and receive an injury.

As it is undisputed that defendants had no notice of the possibility of misbehavior among the scouts, they have established that plaintiff’s accident was not foreseeable.

Even if the Troop leaders had escorted the scouts to the shower house and stood outside while they showered, the alleged misbehavior occurred inside the shower house, and thus the leaders would neither have observed it nor been in a position to stop it. And unless the leaders blocked the entrance, they would not have been able to stop plaintiff from running out of the shower house and falling down.

On top of all of that, even if leaders were present the accident happened too quickly for anyone to have stopped it. Besides, the acts leading to the injury were solely done by the plaintiff, without interference or prodding from anyone other youth or leader. “Moreover, it was plaintiff’s own impulsive and reckless conduct in squirting the other scouts with the water pump and then running out of the shower house, that led to his injury.”

Thus, as the accident occurred in a very short time span and as plaintiff’s own impulsive conduct led to his injury, defendants have demonstrated that there is no proximate cause between their allegedly inadequate supervision and plaintiff’s accident.

The final issue tackled by the courts was the lighting and conditions of the area where the shower house was located. Because the plaintiff could not identify what caused him to fall, it could not be said the fall was caused by inadequate lighting.

Thus, as the accident occurred in a very short time span and as plaintiff’s own impulsive conduct led to his injury, defendants have demonstrated that there is no proximate cause between their allegedly inadequate supervision and plaintiff’s accident.

On top of that, the plaintiff was wearing a headlamp at the time of the accident so even if lighting were to blame the plaintiff had brought his own. Identifying the area around the shower house without being able to identify which of those conditions caused his injury is not enough to argue a legal claim.

Plaintiff was able, however, to recall the conditions outside of the shower house, which consisted of typical conditions in any wooded or camp area, i.e., rocks, dirt, branches, etc., and having been on several camp trips, was presumably aware of the existence and risks of such conditions. He did not identify or recall any unusual, unexpected, or dangerous conditions, nor have any such conditions been alleged.

The decision of the trial court was upheld, and the plaintiff’s claims were dismissed.

So Now What?

First, more information needs to be given to parents to try to educate them of the risks of any youth activity. On top of this, programs designed to protect kids need to be explained both to why they are used and what the adults can and cannot do, like the BSA YPT program.

On top of that, you need to develop proof that your parents knew the risks of the activity. New York does not allow a parent to sign away a minor’s right to sue. (See States that allow a parent to sign away a minor’s right to sue.) As such the only real defense you would have would be assumption of the risk. (See Assumption of the Risk and Assumption of Risk — Checklist)

I would include in that assumption of the risk form statements about the kid’s age and prior camping/outdoor experience as in this case. Ask the parents to relate or checkbox their outdoor experience.

You can use the form to determine who else can help your unit or program, and you can use the form to prove the parents knew and assumed the risk.

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