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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)

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)

Davide E. Gomes, Plaintiff, against Boy Scouts of America, et al., Defendants.

115435/10

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

51 Misc. 3d 1206(A); 2016 N.Y. Misc. LEXIS 1088; 2016 NY Slip Op 50444(U)

March 10, 2016, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

PRIOR HISTORY: Gomes v. Boy Scouts of America, 2013 N.Y. Misc. LEXIS 4622 (N.Y. Sup. Ct., Oct. 9, 2013)

COUNSEL: [*1] For plaintiff: Scott W. Epstein, Esq., Antich, Erlich & Epstein, LLP, New York, NY.

For Council and Troop 141: Brian P. Morrissey, Esq., Connell Foley, LLP, New York, NY.

JUDGES: Barbara Jaffe, JSC.

OPINION BY: Barbara Jaffe

OPINION

Barbara Jaffe, J.

By notice of motion, defendants Northern New Jersey Council, Inc., Boy Scouts of America (Council) and Boy Scout Troop 141 (troop) (collectively, defendants) move pursuant to CPLR 3212 for an order granting them summary dismissal of the complaint against them. Plaintiff opposes.

I. PERTINENT BACKGROUND

By decision and order dated October 8, 2013 (NYSCEF 110), I granted defendant Boy Scouts of America’s (BSA) motion for an order summarily dismissing the complaint against it. As set forth therein, the background of the case is as follows:

On July 24, 2005, plaintiff, then a 13-year-old Boy Scout, was participating in a Boy Scout excursion at Floodwood Mountain Scout Reservation in the Adirondacks. Plaintiff was a member of Boy Scout Troop 141. He and other scouts were accompanied by volunteer [**2] adult leaders. Near or in the shower house at the Reservation, plaintiff sustained head injuries.

In accident and witness reports created after the accident, the other scouts who were at the showers [*2] at the time of plaintiff’s accident stated that they saw plaintiff run from the shower area and discovered him lying prone on the ground and bleeding. None of them saw him fall.

In his amended complaint, plaintiff alleges that as he was walking along the common area and/or grassy area at or near the showers, he fell due to defendants’ failure to keep the area safe, in good repair, well-lit and free from obstruction or defect and supervise him and the other scouts.

In plaintiff’s supplemental verified bill of particulars, he describes the dangerous condition which caused his fall as follows: “that the area in front of the showers where the [ ] accident occurred was not lit, and/or was poorly lit, and/or was inadequately lit; was raised and un-leveled, and had rocks and/or tree limbs/branches strewn about it,” all of which defendants had constructive notice.

At an examination before trial held on December 16, 2011, plaintiff testified that he did not recall his accident or what had caused his fall, and that his last memory before falling was of walking to the showers. At the time of his accident, it was dark outside and there was no lighting outside the showers, although it was lit inside, [*3] and he noticed that there were many rocks on the ground around the shower house. He was wearing a working head lamp as he approached the showers.

(NYSCEF 110).

On this motion, the following relevant facts are undisputed:

(1)Council owns and operates Floodwood and Troop made reservations to attend camp there;

(2)plaintiff had been a scout for several years and had attended previous camping trips;

(3)defendants Lopes and Figueiredo were the two adult Troop leaders in charge of plaintiff’s troop at Floodwood;

(4)the night of plaintiff’s accident, he and the other Troop members were told to put equipment into the Troop’s van and take showers at the camp’s shower house;

(5)of the five other Troop members that accompanied plaintiff to the shower house that night, one was 14 years old, one was 15 years old, and three were 16 years [**3] old;

(6)the adult leaders did not accompany them to the van or the shower house;

(7)the shower house was used by both female and males at alternating hours, and the Troop members had to wait until 10 pm to use it; and

(8)there had been no prior incidents of misbehavior during the trip or among the Troop members.

(NYSCEF 151).

The New York State Department of Health (DOH) promulgates [*4] specific rules for children’s camps. (10 NYCRR § 7-2 et al.). 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.” (10 NYCRR § 7-2.5[o]).

Council’s written plan for Floodwood requires that supervision of campers “be maintained for the duration (24/7) of their stay at the camp.” (NYSCEF 174). 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. (NYSCEF 175).

At a deposition held on December 16, 2011, plaintiff testified that he had been a scout since age nine, and that while a scout he participated in monthly weekend scout camping trips. During the trips, the Troop leaders would show the scouts how to use tools, and gather firewood; when gathering firewood, the scouts would go into the woods using the buddy system, which requires that scouts be accompanied by at least one other scout. When the scouts went to the bathroom, they also used the buddy system. At a camp attended [*5] by the Troop the week before the one at Floodwood, plaintiff visited the shower facilities using the buddy system or with several scouts. At Floodwood too, the buddy system was used. (NYSCEF 162).

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. (NYSCEF 162).

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 [*6] the ground. None of the scouts knew what had caused the fall. (NYSCEF 167-171, 176).

Pictures taken by the parties at Floodwood after the accident depict the shower house as a building stationed in a large clearing or space in front of a wooded area. (NYSCEF 161; 192).

According to the Troop leaders present that day, it was not scouts’ practice to have adult leaders accompany scouts to camp showers. Both leaders testified that they had known plaintiff and the other scouts for several years, had been with them at another camp the week before they went to Floodwood, and had had no disciplinary issues or previous incidents of misbehavior between them. The leaders testified that Scout protocol differentiated between active activities, such as swimming or rock climbing, and passive activities, such as going to shower or the bathroom or retrieving firewood, and that active activities required adults to be present while passive activities did not necessarily require an adult presence. (NYSCEF 163, 164).

Lopes testified that they defined supervision as permitting the scouts to travel throughout the camp as long as the leaders knew their whereabouts, and that he believed that Scout guidelines [*7] prohibited the leaders from walking the scouts to the shower house and waiting outside while they showered in order to avoid any appearance of impropriety. He testified that it was a three to five-minute walk from the Troop’s campsite to the shower house. (NYSCEF 164).

Figueiredo testified that the Troop’s campsite was located approximately a three-minute walk from the parking lot, that the shower house was located in the general camp, and that it was a three to four-minute walk from the Troop’s campsite to the shower house. He found out about plaintiff’s accident when two of the scouts found him at their campsite, and when he arrived at the shower house, he found plaintiff sitting on the ground in front of the shower house. He investigated the incident by interviewing the other scouts, and concluded that the other scouts were inside the shower house when plaintiff fell outside the shower house. (NYSCEF 163).

Figueiredo testified that although they did not accompany the scouts to the bathroom or shower, they had them use the buddy system and knew their whereabouts and when to expect them to return, which he defined as their supervision of the scouts:

[t]hey were not in a vast wilderness, they [*8] were in a camp. So there are other people in camp, so they’re within earshot of a number of people that are in camp. It is not like . . . I sent them out into the African plains; there were other people around. They were reasonably within earshot to a bunch of people and I knew their whereabouts.

(NYSCEF 163).

At an examination before trial held on March 16, 2012, Grey Rolland, Council’s director of support services, testified, as pertinent here, that he was unaware of any other injuries to scouts at Floodwood before or after plaintiff’s accident, and that plaintiff and the other scouts used the buddy system, which Rolland considers adequate. He did not believe that the adult Troop leaders should have accompanied the scouts to the shower house given the BSA prohibition against permitting adults and youths in shower houses together, and he asserted that it would not be considered “appropriate” for the adults to escort the scouts to the shower house. He acknowledged that if a Troop leader observed scouts running around or engaging in horseplay, it was incumbent upon the leader to tell them to stop. (NYSCEF 165).

Richard Saunders testified at an EBT that at the time of plaintiff’s accident, [*9] 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 [**4] nothing therein related to supervision 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.

Saunders described Floodwood as consisting of a main camp area, which includes the buildings where food is organized and meetings occur, and the individual campsites which are approximately a five-minute walk away. The shower house was located between the campsites and the camp buildings. He estimated that the shower house was [*10] a two-minute walk from the Troop’s campsite and in “an area where boys don’t want to have adults and it would be illegal to have them being watched while showering.” As a scout and troop member attending camps like Floodwood, Saunders recalled that adult leaders did not escort scouts to the showers or stand outside while the scouts showered. (NYSCEF 166).

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 [*11] monetary damages.

(NYSCEF 177).

By affidavit dated August 3, 2015, Michael J. Peterson states that he is an expert on camp and conference center management, and opines, based on his experience and review of relevant documentation in this case, that defendants violated the DOH regulation which requires, at a minimum, visual or verbal communications capabilities between a camper and a counselor, and that plaintiff’s accident was reasonably foreseeable as the scouts were allowed to remain “totally unsupervised and unregulated for a lengthy period of time in a potentially dangerous/hazardous environment.” He also posits that if the Troop leaders had accompanied the scouts to the shower house, “the level of horse play outside the shower house would have been minimal to non-existent, the boys would have taken their showers without incident, and safely returned to their camp site.” He also states that the defendants should have provided adequate lighting around the shower house. (NYSCEF 193).

II. CONTENTIONS

Defendants deny that they were negligent in any manner related to the physical conditions outside the shower house as they were the ordinary and expected conditions present in a wooded camp. [*12] Troop denies having had any obligation to maintain the area. Defendants also deny having breached a duty to supervise plaintiff absent any prior incidents between plaintiff and any [**5] other Troop member that would have put them on notice of the need to supervise them more closely, and argue that plaintiff’s injury or misbehavior was not reasonably foreseeable. They observe that plaintiff cannot remember how he was injured or whether his injuries were caused by a premises condition or an assault by another scout, and deny having had notice of any prior incidents or accidents around the shower house. (NYSCEF 151).

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. He asserts that a jury could conclude that a reasonably prudent parent would not permit [*13] six minors “to wander around the woods at 10:00 pm, for an indefinite period of time, without any adult supervision whatsoever,” and maintains that any “horseplay” should have and would have been discouraged by the Troop leaders. He also observes that defendants violated their own policies by failing to have a troop leader with the troop “at all times” or “for the duration (24/7)” of their trip. (NYSCEF 190).

Plaintiff relies on the stipulation entered into between defendants and DOH, Saunders’s conclusion that factors contributing to the incident included inadequate supervision, and Peterson’s opinion, to demonstrate the lack of adequate supervision. He also argues that Council had a duty to illuminate the area around the shower house, which he characterizes as a “rugged” and “uneven and unpaved camp area containing, inter alia, grass, dirt, rocks, trees, and tree roots.” (Id.).

In reply, defendants maintain that they established, prima facie, their lack of prior knowledge or notice of any scout misbehavior at the camp or any dangerous condition around the shower house. They deny that plaintiff offers evidence that he suffers from any medical condition causing a failure of memory, and [*14] assert that his inability to remember the incident does not warrant relieving him of his burden of proof. They also dispute that the scouts were “traipsing or wandering” through the woods, observing that both Troop leaders testified that they were within the camp, not the woods, where they were within earshot, and were directed to go to the shower house, which they did. (NYSCEF 200).

Defendants also contend that Peterson’s expert affidavit is based on speculation, and that his reliance on the DOH requirement of visual or verbal communication capabilities during “activities” is inapplicable as showering or walking to the shower house is not an activity within the meaning of the rule. They observe that Peterson cites no regulations that defendants allegedly violated relating to the lighting around the shower house, that Peterson never inspected the area, and that in any event, the conditions alleged are ordinary elements of a wooded area. They also deny that Saunders’s statements in the DOH form constitute party admissions, as his completion of the form was not within the scope of his authority at Floodwood. (Id.).

III. ANALYSIS

“The proponent of a summary judgment motion must make a prima [*15] facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” (Ayotte v Gervasio, 81 NY2d 1062, 1062, 619 N.E.2d 400, 601 N.Y.S.2d 463 [1993] [citation [**6] omitted]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]). “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers.” (Winegrad, 64 NY2d at 853; see also Lesocovich v 180 Madison Ave. Corp., 81 NY2d 982, 985, 615 N.E.2d 1010, 599 N.Y.S.2d 526 [1993]).

Once the proponent’s prima facie burden is satisfied, the opposing party bears the burden of presenting evidentiary facts sufficient to raise triable issues of fact. (Zuckerman v City of New York, 49 NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]; CitiFinancial Co. [DE] v McKinney, 27 AD3d 224, 226, 811 N.Y.S.2d 359 [1st Dept 2006]). Summary judgment may be granted only when it is clear that no triable issues of fact exist (Alvarez v Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]), and “should not be granted where there is any doubt as to the existence of a triable issue” of fact (Am. Home Assur. Co. v Amerford Intl. Corp., 200 AD2d 472, 473, 606 N.Y.S.2d 229 [1st Dept 1994]; see also Color by Pergament, Inc. v Pergament, 241 AD2d 418, 420, 660 N.Y.S.2d 431 [1st Dept 1997] [“Summary judgment is an exercise in issue-finding, not issue determination, and may not be granted when material and triable issues of fact are presented”]). The court must examine the evidence in a light most favorable to the party opposing the motion. (Martin v Briggs, 235 AD2d 192, 196, 663 N.Y.S.2d 184 [1st Dept 1997]).

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. (Noseworthy v City of New York, 298 NY 76, 80 N.E.2d 744 [1948]; see Bah v Benton, 92 AD3d 133, 936 N.Y.S.2d 181 [1st Dept 2012] [plaintiff who presented medical evidence establishing loss of memory due [*16] to accident at issue entitled to lesser standard of proof applicable to party unable to present party’s version of facts]). 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.” (Alotta v Diaz, 130 AD3d 660, 11 N.Y.S.3d 868 [2d Dept 2015]; see Schechter v Klanfer, 28 NY2d 228, 269 N.E.2d 812, 321 N.Y.S.2d 99 [1971] [even if amnesiac plaintiff is held to lesser degree of proof, it does not “shift the burden of proof or eliminate the need for plaintiffs to introduce evidence of a prima facie case”]; Santiago v Quattrociocchi, 91 AD3d 747, 937 N.Y.S.2d 119 [2d Dept 2012] [same]).

A. Did defendants breach their duty to supervise plaintiff?

A person, other than a parent, who undertakes to control, care for, or supervise an infant, is required to use reasonable care to protect the infant . . . Such a person may be liable for any injury sustained by the infant which was proximately caused by his or her negligence. While a person caring for entrusted children is not cast in the role of an insurer, such an individual is obligated to provide adequate supervision and may be held liable for foreseeable injuries proximately resulting from the negligent failure to do so.

(Alotta v Diaz, 130 AD3d 660, 11 N.Y.S.3d 868 [2d Dept 2015], quoting Appell v Mandel, 296 AD2d 514, 745 N.Y.S.2d 491 [2d Dept 2002]).

A “summer camp is duty-bound to supervise its campers as would a parent of ordinary prudence in comparable [*17] circumstances.” (Phelps v Boy Scouts of Am., 305 AD2d 335, 762 N.Y.S.2d 32 [1st Dept 2003]). And, while the degree of supervision required depends on the surrounding circumstances, “constant supervision in a camp setting is neither feasible nor desirable.” (Id. at 335-6).

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 [**7] information would invariably have provided greater supervision.” (Mayo v New York City Tr. Auth., 124 AD3d 606, 3 N.Y.S.3d 36 [2d Dept 2015], quoting Mary KK v Jack LL, 203 AD2d 840, 611 N.Y.S.2d 347 [3d Dept 1994]).

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.” (Ragusa v Town of Huntington, 54 AD3d 743, 864 N.Y.S.2d 441 [2d Dept 2008], quoting Mirand v City of New York, 84 NY2d 44, 637 N.E.2d 263, 614 N.Y.S.2d 372 [1994]). Although if an accident occurs in “so short a span in time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the . . . defendants is warranted.'” (Atehortua v Lewin, 90 AD3d 794, 935 N.Y.S.2d 102 [2d Dept 2011], quoting Nash v Port Wash. Union Free School Dist., 83 AD3d 136, 922 N.Y.S.2d 408 [2d Dept 2011]).

1. Was the supervision adequate?

Even though plaintiff does not remember the accident, the [*18] other boys’ versions of it are consistent and uniform, and present the following picture: Plaintiff and the other scouts walked to the shower house and went inside without incident, whereupon plaintiff obtained a water pump and started spraying water on them. When one of the scouts told plaintiff to stop, he ran out of the shower house, and fell.

Plaintiff’s contention is that for defendants’ supervision to have been adequate that night, the Troop leaders should have escorted or walked the scouts to the shower house, waited outside while they showered, and then walked them back to their campsite. As it is undisputed that the scouts ranged in age from 13 to 16, that they were at Floodwood to learn skills related to survival in the woods and to partake in a 15-mile canoe trip, that the scouts utilized a buddy system when at various camps and that Troop leaders never escorted them to the bathrooms or showers, that the shower house was approximately a three to five-minute walk from their campsite, and that the shower house was located within the camp area where other campers and adults were present and within earshot, defendants have demonstrated that a parent of ordinary prudence placed [*19] in the identical situation and armed with the same information would not have provided greater supervision than that provided by defendants.

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” (Phelps v Boy Scouts of Am., 305 AD2d 335, 762 N.Y.S.2d 32 [1st Dept 2003]), and camps “cannot reasonably be expected to continuously supervise and control all of [the campers] movements and activities” (Harris v Five Point Mission – Camp Olmstedt, 73 AD3d 1127, 901 N.Y.S.2d 678 [2d Dept 2010]).

On point is Kosok v Young Men’s Christian Assn. of Greater New York, where a group of boys at a summer camp injured the plaintiff while playing a prank involving attaching a pail to a fishing rod and letting it descend onto the heads of other unsuspecting boys. The group of boys, ranging in age from 12 to 15, occupied a cabin by themselves; the camp counselor did not stay [*20] in [**8] the cabin with them during the midday break. The Court dismissed the case, finding that there was no negligence by defendants in failing to supervise “the rest period of boys of high-school age for a short period.” (24 AD2d 113, 264 N.Y.S.2d 123 [1st Dept 1965], affd 19 NY2d 935, 228 N.E.2d 398, 281 N.Y.S.2d 341 [1967]). 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.” (24 AD2d at 115; see also Gustin v Assn. of Camps Farthest Out, Inc., 267 AD2d 1001, 700 N.Y.S.2d 327 [4th Dept 1999] [same]).

Plaintiff’s reliance on Phelps v Boy Scouts of Am. is misplaced. As I held in granting summary judgment to Boy Scouts of America:

In Phelps . . . “very young campers” were placed in bunks at a camp with “much older campers,” who allegedly assaulted the young campers . . . The court also allowed that very young campers often require closer supervision than older campers, and that placing the younger campers in the bunks with the older campers was an apparent violation of camp policy.

Here, there is no issue of very young campers being unsupervised or placed in risky circumstances as plaintiff and his fellow scouts were all teenagers and there is no evidence that [*21] any camp policy was violated . . .

(305 AD2d 335, 762 N.Y.S.2d 32 [1st Dept 2003]).

Moreover, plaintiff’s reliance on Saunders’s conclusion or opinion in the DOH report that the accident was caused by inadequate supervision is not conclusive here, not only 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. In any event, Saunders testified that he wrote that there was inadequate supervision based only on the fact that the Troop leaders were not physically present at the time of the accident, which is an insufficient basis for the conclusion.

Plaintiff’s submission of the stipulation between DOH and defendants to establish that there was inadequate supervision is barred by the stipulation’s own terms.

Peterson’s expert opinion is based on speculation and is conclusory, and he cites no regulation or requirement that specifies that adequate supervision in this context means that the Troop leaders were required to escort the scouts to the shower house and wait outside until they finished [*22] showering. Indeed, any claim that such supervision is required in camps is undermined by the undisputed fact that at the camp that the scouts attended a week before going to Floodwood, the scouts went to the shower house unescorted and used only the buddy system. 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. (See eg, Harris v Five Point Mission – Camp Olmstedt, 73 AD3d 1127, 901 N.Y.S.2d 678 [2d Dept 2010] [while expert concluded that camp was negligent in failing to provide plaintiff with shin guards during soccer game in which he was injured, he failed to allege that camps generally provide shin guards during games or that rules requiring use of shin guards in soccer leagues have been implemented by or [**9] accepted as accepted practice at camps]; Cherry v State of New York, 42 AD2d 671, 344 N.Y.S.2d 545 [4th Dept 1973], affd 34 NY2d 872, 316 N.E.2d 713, 359 N.Y.S.2d 276 [1974] [where camper was injured when nail he struck with hammer while building tent platform struck him, expert’s opinion that the camp was required to provide campers with safety goggles was expert’s personal opinion and neither statute nor regulations required goggles]). [*23]

References to the “traipsing” or “wandering” in the woods unsupervised have no basis in the record; the scouts remained in the camp and never went into the woods. Moreover, the accident did not occur in the woods, and there is no correlation between the woods and plaintiff’s accident.

In any event, whether or not defendants’ supervision of plaintiff was adequate is irrelevant if the accident was not foreseeable or was not proximately caused by the allegedly inadequate supervision.

2. Was plaintiff’s accident foreseeable?

As it is reasonably inferred that the accident occurred as described by the other scouts, there is no evidence suggesting that defendants were on notice that plaintiff and/or the scouts would engage in any dangerous conduct or misbehavior at the shower house. Moreover, even if some of the behavior was foreseeable, plaintiff’s bolting from the shower house, and subsequent fall, was not a foreseeable consequence of any misbehavior.

Kosok is again on point here, with the Court finding that “[a]ssuming that the boys were reasonably quiet – and there is no indication that they were not – no occasion for looking in on them was presented.” The Court also observed that:

[a] certain amount [*24] 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. Nothing in the incident itself or surrounding circumstances indicates any notice to defendant that such was likely to result here.

(24 AD2d at 115; see also Gibbud v Camp Shane, Inc., 30 AD3d 865, 817 N.Y.S.2d 435 [3d Dept 2006] [same]).

Even if plaintiff had been assaulted by a fellow scout rather than having tripped and fallen, there is no evidence that defendants were on notice of the possibility of an assault. (See eg Alvero v Allen, 262 AD2d 434, 692 N.Y.S.2d 116 [2d Dept 1999] [boy scout sued troop leader for injury caused by snowball fight; absent proof that leader had notice of ongoing and dangerous snowball fight, plaintiff could not prevail on inadequate supervision claim]; see also Osmanzai v Sports and Arts in Schools Foundation, Inc., 116 AD3d 937, 983 N.Y.S.2d 848 [2d Dept 2014] [injury caused by impulsive, unanticipated act of fellow camper ordinarily will not give rise to negligence claim absent proof of prior conduct that would have given notice to protect against injury-causing act]).

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.

3. Was plaintiff’s accident proximately caused by defendants’ allegedly inadequate [*25] supervision?

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.

Plaintiff’s and Peterson’s belief that the mere presence of the Troop leaders outside the shower house would have been sufficient to stop any horseplay from taking place inside is not only speculative, but unwarranted as the scouts had engaged in horseplay earlier that day while the leaders were with them. (See eg, Stephenson v City of New York, 85 AD3d 523, 925 N.Y.S.2d 71 [1st Dept 2011], affd 19 NY3d 1031, 978 N.E.2d 1251, 954 N.Y.S.2d 782 [2012] [suggestion that student’s assault on plaintiff would have been prevented by his mother accompanying her almost 14-year-old son to school every day did not rise above speculation]; see also Lizardo v Bd. of Educ. of City of New York, 77 AD3d 437, 908 N.Y.S.2d 395 [1st Dept 2010] [rejecting plaintiff’s expert’s assertion that collision between children would have been preventable by teacher watching play more closely, and opinion that incident might have been prevented by closer supervision valid only in retrospect]; Walsh v City School Dist. of Albany, 237 AD2d 811, 654 N.Y.S.2d 859 [3d Dept 1997] [finding unpersuasive allegation [*26] that presence of supervisor could have kept plaintiff and fellow student attentive and injury would have been prevented]).

In any event, the accident occurred too quickly to enable the Troop leaders to prevent it had they been outside the shower house. As in Kosok, “[e]ven if the cabin counsellor had been within earshot of the cabin, it is difficult to see how the accident would have been prevented.” (24 AD2d at 115; see Harris v Five Point Mission – Camp Olmstedt, 73 AD3d 1127, 901 N.Y.S.2d 678 [2d Dept 2010] [as plaintiff was injured at camp during 15-second time span, camp established that it did not negligently supervise him]; see also Jorge C. v City of New York, 128 AD3d 410, 8 N.Y.S.3d 307 [1st Dept 2015] [defendant established that student’s injury did not arise from inadequate supervision, but from impulsive and unanticipated acts of fellow student of finding balloon, filling it with water, and attempting to throw it at plaintiff, and plaintiff running away and looking backwards rather than ahead]).

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. (See Gibbud v Camp Shane, Inc., 30 AD3d 865, 817 N.Y.S.2d 435 [3d Dept 2006] [plaintiff’s own impulsive and reckless act in grabbing camp counselor from behind, causing counselor to drop plaintiff and fracture plaintiff’s [*27] ankle, 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.

B. Did Council breach their duty to illuminate adequately the area around the shower house?

Plaintiff has not identified what caused him to fall, whether it was part of the shower house or something on the ground, either a rock or tree branch or uneven patch of dirt. Absent any such evidence and even if plaintiff is unable to recall, there is no basis on which it may be found that plaintiff’s injury was proximately caused by the lack of lighting around the area. (See Lynn v Lynn, 216 AD2d 194, 628 N.Y.S.2d 667 [1st Dept 1995] [plaintiff’s amnesia did not reduce her burden of proving that allegedly defective condition of stairway was proximate cause of fall]).

Moreover, plaintiff was wearing a working headlamp at the time of the incident, and neither plaintiff nor his expert identified a regulation or rule requiring defendants to light the area around the shower house at all or in any particular manner.

Plaintiff was able, however, to recall the conditions outside of the [*28] shower house, which consisted of typical conditions in any wooded or camp area, i.e., rocks, dirt, branches, etc., and [**10] 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.

In Kimbar v Estis, a young camper had wandered off a camp path at night and hit a tree. The Court found that the camp owners had no duty to illuminate the path in the absence of any particular danger on the path, finding:

We have before us a simple camper-camp relationship and the rustic, outdoor camp life that is the very raison d’e tre [sic] of summer establishments such as defendants’. There are certain risks incidental to camping, but these are part of an adventurous summer camp life, and are necessarily assumed by those who would participate therein . . .

Indeed, it is expected that a camp will have trees, that paths will lead through woods and that woods will be dark at night. It is not to be anticipated that floodlights will be supplied for campers through woodland paths. One naturally assumes many ordinary risks when in the woods and in [*29] the country trails are not smooth sidewalks, paths are not paved, trees, brush and insects are to be expected, and even snakes may appear occasionally. These and more are all a part of accepted camp life.

To hold summer camps to a duty of floodlighting woods would not only impose upon them a condition almost impracticable under many circumstances but would be unfair, as well, to the youth who seek the adventure of living closer to nature, participating in outdoor astronomical study at night or bird study before dawn, or when overnight hikes take them for study and adventure far from any source of electrical power. Such a duty, in short, would frequently compel camps to keep boys confined after dark and thereby effectively spell the end of some of the most desirable activities of real camping life.

1 NY2d 399, 135 N.E.2d 708, 153 N.Y.S.2d 197 [1956]).

Defendants thus establish that they breached no duty to illuminate the area around the shower house and that, in any event, the area did not constitute a dangerous condition for which they may be held liable. (See Torres v State of New York, 18 AD3d 739, 795 N.Y.S.2d 710 [2d Dept 2005] [park owner not liable for injury sustained when plaintiff tripped over tree stump in park; “landowners will not be held liable for injuries arising from a condition on the property [*30] that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it”]; Mazzola v Mazzola, 16 AD3d 629, 793 N.Y.S.2d 59 [2d Dept 2005] [dismissing claim by infant plaintiff who tripped and fell over exposed tree roots in backyard as alleged defect was inherent to nature of land]; Moriello v Stormville Airport Antique Show & Flea Market, Inc., 271 AD2d 664, 706 N.Y.S.2d 463 [2d Dept 2000] [owner of field not liable for injuries to plaintiff who tripped on flat rock while walking on unpaved roadway; rock was inherent to nature of unpaved roadway]; Csukardi v Bishop McDonnell Camp, 148 AD2d 657, 539 N.Y.S.2d 408 [2d Dept 1989] [campground owner not liable to person who tripped over grass-covered stump in wooded area, as stump was incidental to nature of campground and could be reasonably anticipated by persons traversing wooded area]; Alcantara v Fed. Girl Scout Councils of Nassau County, Inc., 24 AD2d 585, 262 N.Y.S.2d 190 [2d Dept 1965] [plaintiff could not recover for injury sustained at camp when she tripped over tree stump; [**11] defendant conducted rustic outdoor camp and paths were unpaved, and condition of premises was thus incidental to nature of camp and to be ordinarily expected by plaintiff]).

IV. CONCLUSION

For all of these reasons, it is hereby

ORDERED, that the motion of defendants Northern New Jersey Council, Inc., Boy Scouts of America and Boy Scout Troop 141 for summary judgment dismissing the action against them is granted, and the complaint is dismissed as against them, [*31] with costs and disbursements to said defendants as taxed by the Clerk upon the submission of an appropriate bill of costs, and is further

ORDERED, that the clerk is directed to enter judgment accordingly.

ENTER:

Barbara Jaffe, JSC

DATED: March 10, 2016

New York, New York

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Mooring v. Virginia Wesleyan College, et al. 257 Va. 509; 514 S.E.2d 619; 1999 Va. LEXIS 69

Mooring v. Virginia Wesleyan College, et al. 257 Va. 509; 514 S.E.2d 619; 1999 Va. LEXIS 69

Antonio Mooring, a Minor Who Sues by His Mother and Next Friend, Patricia Mooring, et al. v. Virginia Wesleyan College, et al.

Record No. 981270

SUPREME COURT OF VIRGINIA

257 Va. 509; 514 S.E.2d 619; 1999 Va. LEXIS 69

April 16, 1999, Decided

PRIOR HISTORY: [***1] FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK. Everett A. Martin, Jr., Judge.

COUNSEL: Philip J. Geib for appellants.

Allan S. Reynolds, Sr. (Reynolds, Smith & Winters, on brief), for appellees.

JUDGES: Present: All the Justices. OPINION BY JUSTICE ELIZABETH B. LACY.

OPINION BY: ELIZABETH B. LACY

OPINION

[**620] [*510] OPINION BY JUSTICE ELIZABETH B. LACY

Antonio Mooring, a minor, suffered a traumatic amputation of his right thumb when John Braley closed a door while Mooring had his hand on the portal of the doorway. The incident occurred at the Boys and Girls Club of Hampton Roads (the Club). Mooring, through his next friend, sued Braley and his employer, Virginia Wesleyan College. The trial court dismissed Mooring’s motion for judgment finding that Braley was a volunteer at the Club and entitled to charitable immunity as a result of the Club’s status as a charity. Because we find that Braley was not engaged in the charity’s work at the time of the alleged negligence, we conclude that the trial court erred in dismissing Mooring’s motion for judgment.

[*511] Braley is a professor at Virginia Wesleyan College, teaching in a recreation and leisure studies program. The Club contacted Braley seeking volunteers to work in its programs. In response, Braley established a program with the Club in which [***2] students in Braley’s recreation programming class were required to spend six hours observing the children and volunteering at the Club. The students were required to return to the classroom, design recreation programs for the children they observed, and then implement those programs at the Club. Braley would go to the Club to observe the students conducting the programs and would “help the students out” when they needed it. The students were not graded directly on the basis of their work at the Club, but on the basis of a report they submitted to Braley describing their learning experience.

On the day Mooring was injured, one of Braley’s students was conducting a wellness and body-conditioning program for thirteen to eighteen-year-olds in the Club’s weight room. The student was giving a talk to the participants and Braley was observing her. At the student’s request, Braley went to the door to keep younger children not involved in the student’s program out of the room. While Braley was tending the door, Mooring was injured.

The trial court held an evidentiary hearing on the defendants’ joint motion to dismiss. The parties stipulated that the Club was a charity entitled to [***3] charitable immunity and that Mooring was a beneficiary of the charity. The trial court held that because Braley received no extra compensation from the Club or Virginia Wesleyan College for the services he rendered, and because Braley’s role at the Club was both supervising his students and “helping the Club perform its good work,” he was “a volunteer at the Club” and thus entitled to charitable immunity under Moore v. Warren, 250 Va. 421, 463 S.E.2d 459 (1995). 1

1 In dismissing the motion for judgment against both defendants, the trial court did not specifically address whether Virginia Wesleyan College was entitled to charitable immunity, and this issue is not before us on appeal.

[**621] In Moore, an American Red Cross volunteer was sued for negligence allegedly committed while transporting the injured party to a routine medical visit in a car owned by the Red Cross. Providing transportation for such medical visits was a service of the Red Cross. The driver contended that he was “‘cloaked with the immunity [***4] of the charity'” and that charitable immunity was not limited to the charity itself. Id. at 422, 463 S.E.2d at 459. In resolving this issue of first impression, we stated:

[*512] Like any organization, a charity performs its work only through the actions of its servants and agents. Without a charity’s agents and servants, such as the volunteer here, no service could be provided to beneficiaries. Denying these servants and agents the charity’s immunity for their acts effectively would deny the charity immunity for its acts.

Id. at 423, 463 S.E.2d at 460. Based on this rationale, we included the driver in the immunity of the charity and held that he was immune from liability to the charity’s beneficiaries for negligence while he was “engaged in the charity’s work.” Id. at 425, 463 S.E.2d at 461. Thus, Moore requires [HN1] an individual seeking the cloak of a charity’s immunity to establish that he was an agent or servant of the charity at the time of the alleged negligence and that the alleged negligence for which he seeks immunity occurred while he was actually doing the charity’s work.

Assuming, without deciding, that the “role” Braley had at the Club identified by [***5] the trial court satisfied the requirement that Braley be an agent or servant of the Club, Braley qualifies for protection under the Club’s charitable immunity only if the alleged negligence occurred while he was doing the charity’s work. Mooring contends that at the time of the injury Braley’s “presence did not directly benefit the Club,” and that Braley presented no evidence that “he was doing anything in particular for the Club at the time of the incident.” We agree.

While Braley testified that he “helped out” at the Club whenever he could, the record shows that at the time of his alleged negligence, Braley was at the Club to observe the activities of his student. He was not there to directly perform any of the Club’s work; rather he was carrying out his duties as a professor at Virginia Wesleyan College. He was observing his student and acting as “doorkeeper” at the student’s request to allow his student to properly conduct the wellness class. Under these facts, we conclude that Braley was not entitled to charitable immunity because he was not engaged in the work of the charity at the time of his alleged negligence.

Accordingly, we will reverse the judgment of the trial [***6] court and remand the case for further proceedings.

Reversed and remanded.


Byrne, JR., v. Fords-Clara Barton Boys Baseball League, Inc., 236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357

Byrne, JR., v. Fords-Clara Barton Boys Baseball League, Inc., 236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357

George C. Byrne, JR., A Minor by his Guardian Ad Litem, Francine Byrne, and Francine Byrne, Individually, Plaintiffs-Appellants, v. Fords-Clara Barton Boys Baseball League, Inc., Defendant, and Dennis Bonk, Defendant-Respondent

No. A-4172-88T2

Superior Court of New Jersey, Appellate Division

236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357

September 19, 1989, Argued

October 4, 1989, Decided

COUNSEL: James J. Dunn argued the cause for appellants (Levinson, Axelrod, Wheaton & Grayzel, attorneys; Richard J. Levinson, of counsel; Richard J. Levinson and James J. Dunn, on the brief).

Salvatore P. DiFazio argued the cause for respondent (Golden, Rothschild, Spagnola & DiFazio, attorneys).

JUDGES: Pressler, Long and Landau. The opinion of the court was delivered by Pressler, P.J.A.D.

OPINION BY: PRESSLER

OPINION

[*186] [**1223] In evident response to the increasing cost of liability insurance and, in some instances the unavailability of liability insurance, for volunteer athletic coaches, managers and officials of nonprofit sports teams, 1 the Legislature, by L. 1986, c. 13, adopted N.J.S.A. 2A:62A-6, amended by L. 1988, c. 87, which affords those volunteers immunity from tort liability subject to the conditions and exceptions specified therein. This appeal from a summary judgment requires us to construe paragraph (c) of the Act, which conditions the availability of the immunity, to some degree at least, upon the volunteer’s participation in a safety and training program.

1 See, e.g., Legislative Summaries: Sports Law, 10 Seton Hall Legis. J. 332 (1987).

[***2] The facts relevant to the issue before us are not in dispute. In the spring of 1986, plaintiff George C. Byrne, Jr., then 11 years old, was enrolled in the Fords-Clara Barton Baseball League, Inc. The League, while not affiliated with Little League Baseball, Inc., is nevertheless similarly organized, structured and conducted, offering inter-team competitions for similarly aged youngsters. Defendant Dennis Bonk was the coach of the team to which the infant plaintiff was assigned. On May 13, 1986, the day after the effective date of N.J.S.A. 2A:62A-6, Bonk instructed plaintiff to “warm-up” the pitcher. [*187] Although plaintiff was wearing most of the catcher’s special protective gear, he was not, in violation of the League’s rules, wearing a catcher’s mask. During the warm-up, he was struck in the eye by a pitched ball, sustaining the injury which is the gravamen of this complaint. The complaint charged Bonk both with ordinary negligence and with “willful, wanton, reckless and gross” negligence.

Bonk’s motion for summary judgment dismissing the complaint as to him relied on N.J.S.A. 2A:53A-7 (charitable immunity) as well as on N.J.S.A. 2A:62A-6. The trial judge [***3] ruled that N.J.S.A. 2A:53A-7 was inapplicable to the claim against Bonk, as opposed to the League, because of its express exception of “agents or servants” from the immunity it affords. Bonk does not challenge that ruling on this appeal.

With respect to the applicability of N.J.S.A. 2A:62A-6, both plaintiff and this defendant relied on paragraph (c), which prior to its 1988 amendment provided in full as follows:

[HN1] Nothing in this section shall be deemed to grant immunity to any person causing damage by his willful, wanton, or grossly negligent act of commission or omission, nor to any coach, manager, or official who has not participated in a safety orientation and training program established by the league or team with which he is affiliated.

At least for purposes of the summary judgment motion, Bonk conceded that he had never participated in a safety orientation or training program, and the reason he had not was the League’s failure to have established one.

The issue then is whether paragraph (c), as originally adopted, required participation as a condition of immunity only if the league or team had established a safety and training program or if, to the contrary, the [***4] legislative intention was to mandate the establishment of a program as a quid pro quo, as it were, for the immunity, thus granting it only to those volunteers who had actually participated in such a program. [**1224] The trial court judge declined to read the statute as requiring the establishment of a safety and training program for volunteers, concluding therefore that a volunteer who had had no [*188] training in safety because there was no program for him to attend was fully entitled to the statutory immunity. Accordingly, it entered partial summary judgment dismissing the ordinary negligence claims against Bonk. 2 We granted plaintiff’s motion for leave to appeal and now reverse.

2 The trial judge did not rule on the wanton and gross negligence claims, concluding that questions of fact were involved, and defendant did not seek leave to cross-appeal from that determination. It is therefore not before us. See R. 2:5-6(b).

The direct legislative history is both sparse and inconclusive. The bill, A-2398, [***5] which was finally adopted as L. 1986, c. 13, had been first introduced and passed in the Assembly, whose version of paragraph (c) excepted only willful, wanton, or grossly negligent acts. The provision respecting safety and training programs was added by the Senate in its version of the bill, S-1678, which also added paragraphs (d), (e) and (f), all of which further limit and condition the immunity afforded by the Assembly bill. 3 The Statement accompanying the Senate version is not particularly helpful in construing its intention since, in explaining the addition to paragraph (c), it uses exactly the same verbiage as the statutory text.

3 Paragraph (d) makes the immunity inapplicable “to any person causing damage as the result of his negligent operation of a motor vehicle.” Paragraph (e) withholds the immunity from a person “permitting a sport competition or practice to be conducted without supervision.” Paragraph (f) makes clear the Act’s inapplicability to school coaches, managers, and officials.

[***6] We recognize that there is an ambiguity in the manner in which the operative clause of paragraph (c) was drawn. Normally that ambiguity would have required us to determine, without benefit of express legislative explication, whether the general legislative purpose to accord the immunity was meant to prevail over the safety concerns expressed by that paragraph or not. We need not, however, engage in that debate since the Legislature, by its 1988 amendment of paragraph (c), left no doubt that its original intent had been to condition the immunity [*189] upon the volunteer’s actual participation in an appropriate program. 4

4 The trial court apparently did not consider the effect of the 1988 amendment and its legislative history on this interpretation problem of the 1986 Act. Nor did either counsel bring the amendment to the attention of the trial court or this court.

By L. 1988, c. 87, the originally adopted single-section paragraph (c) was replaced by this two-section paragraph (c):

[HN2] (1) Nothing [***7] in this section shall be deemed to grant immunity to any person causing damage by his willful, wanton, or grossly negligent act of commission or omission, nor to any coach, manager, or official who has not participated in a safety orientation and training skills program which program shall include but not be limited to injury prevention and first aid procedures and general coaching concepts.

(2) A coach, manager, or official shall be deemed to have satisfied the requirements of this subsection if the safety orientation and skills training program attended by the person has met the minimum standards established by the Governor’s Council on Physical Fitness and Sports in consultation with the Bureau of Recreation within the Department of Community Affairs, in accordance with rules and regulations adopted pursuant to the “Administrative Procedure Act,” P.L.1968, c. 410 (C. 52:14B-1 et seq.).

The 1988 version does more than define, qualify, and standardize the prescribed safety program. In our view, the text of paragraph (c)(2), in its reference to a volunteer being “deemed to have satisfied the requirements of this subsection” (emphasis added), makes plain that actual program [***8] attendance is the unequivocal prerequisite for entitlement to the immunity. We are further persuaded that this was the legislative intention from the outset.

We base this conclusion first on public policy considerations. We do not believe that in initially prescribing participation in [**1225] a safety program, the Legislature meant to provide a disincentive to the establishment of such programs by charitably organized leagues and teams — and surely a disincentive is implicit in a scheme in which a coach or manager can obtain immunity against ordinary negligence by the simple expedient of the league’s failure to instruct him on matters of safety. Rather, we are convinced that the Legislature, responding to a perceived [*190] insurance crisis, concluded that all of the competing interests involved in the management of and participation in nonprofit athletic organizations could be most reasonably accommodated by encouraging the safety training of volunteer coaches and managers — not discouraging such training — and then protecting trained volunteers from ordinary negligence claims. Thus, the prior training was at the heart of the immunity concept. That being so, we are convinced [***9] that the Legislature never intended that the immunity would attach to an untrained volunteer simply because his league or team chose not to offer appropriate training.

Beyond that, we are also convinced that that construction of the original version of the statute has been expressly confirmed by the Senate Statement accompanying the 1988 amendment. That Statement starts with the observation that the amendment is intended to clarify the manner in which the volunteer coach, manager, or official can satisfy “the training program requirement of the ‘little league liability law,’ P.L.1986, c. 13. . . .” 5 Thus, the Legislature itself thereby described the program referred to in the original Act as mandated rather than optional. The conclusion is, therefore, ineluctable that [HN3] a volunteer coach who has not participated in a prescribed safety program, for whatever reason, is barred from reliance on the statutory immunity.

5 Although the Act by its terms is not limited to the Little League or even to youngsters participating in nonprofit athletic organizations, the Act has been referred to by the Little League nomenclature because it was that context in which it was initially adopted.

[***10] The partial summary judgment dismissing the ordinary negligence counts of the complaint against Dennis Bonk is reversed, and the matter is remanded to the trial court for further proceedings


Smith v. Kroesen, 9 F. Supp. 3d 439; 2014 U.S. Dist. LEXIS 39729

Smith v. Kroesen, 9 F. Supp. 3d 439; 2014 U.S. Dist. LEXIS 39729

Paul M., Plaintiff, v. John A. and Mark Cooley, et al., Defendants.

Civ. A. No. 10-5723 (NLH)(AMD)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

9 F. Supp. 3d 439; 2014 U.S. Dist. LEXIS 39729

March 25, 2014, Decided

March 25, 2014, Filed

PRIOR HISTORY: Smith v. Kroesen, 2013 U.S. Dist. LEXIS 167619 (D.N.J., Nov. 26, 2013)

COUNSEL: [**1] DOMINIC ROMAN DEPAMPHILIS, D’AMATO LAW FIRM PC, EGG HARBOR TOWNSHIP, NJ, On behalf of plaintiff.

CLARK B. LEUTZE, MARGOLIS EDELSTEIN, MOUNT LAUREL, NJ, On behalf of defendant Mark Cooley.

JUDGES: Noel L. Hillman, U.S.D.J.

OPINION BY: Noel L. Hillman

OPINION

[*440] HILLMAN, District Judge

Presently before the Court is the motion of defendant, Mark Cooley, for summary judgment in his favor on the claims of plaintiff, Paul Smith, that defendant is liable for injuries plaintiff sustained while playing in a rugby match. For the reasons expressed below, defendant’s motion will be granted.

BACKGROUND

On April 10, 2010, plaintiff Paul Smith, a member of the Jersey Shore Sharks rugby team, was playing in a rugby match against Old Gaelic Rugby Football Club, which was coached by defendant Mark Cooley. A rugby match is comprised of two, 40-minute halves, and it is typical to have 70 pile-ups of players and over 100 collisions with other players. During the first half of the match that day, plaintiff and a player from Old Gaelic got into a “ruck,” which is described to the Court as an on-the-field argument.1 The two players rolled on the ground, and plaintiff gave the Old Gaelic player a short jab to the ribs. Although the play had moved [**2] to the other end of the field, another Old Gaelic player, defendant John Kroesen, saw the ruck and, according to plaintiff, came from behind and intentionally kicked him in the face. Plaintiff sustained a left orbital fracture and a nasal fracture, for which plaintiff underwent surgery.

1 In rugby, a “ruck” also refers to efforts by opposing teams huddled over a dropped ball to kick it to a teammate to gain possession.

Plaintiff filed suit against Kroesen claiming that Kroesen’s conduct was intentional assault and battery, or at a minimum, grossly negligent. Plaintiff then filed an amended complaint,2 adding Cooley as a defendant, claiming that Cooley was grossly negligent in his coaching of the Old Gaelic team, and is responsible for plaintiff’s injuries caused by Kroesen.3 Kroesen did not answer plaintiff’s complaint, and the clerk has entered default against him. Plaintiff and Cooley went to arbitration to resolve plaintiff’s claims against Cooley, but following the arbitrator’s decision, plaintiff sought a trial de novo. Cooley has now filed for summary judgment on plaintiff’s claims against him. Plaintiff has opposed Cooley’s motion.

2 The Court granted plaintiff’s unopposed motion [**3] to file an amended complaint. (See Docket No. 8, Nov. 11, 2011.)

3 Plaintiff also added as defendants the Old Gaelic Rugby Football Club, the Eastern Pennsylvania Rugby Union (“EPRU”), and the Mid-Atlantic Rugby Football Union (“MARFU”), which oversees EPRU. On October 31, 2012, plaintiff dismissed by consent his claims against MARFU. Old Gaelic and EPRU were never served with the amended complaint, and plaintiff has abandoned his claims against them. (Pl. Attorney Cert. ¶ 9, Docket No. 38-1.)

DISCUSSION

A. Subject Matter Jurisdiction

This Court may exercise subject matter jurisdiction over the action pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000.4 The citizenship of the [*441] parties is as follows: plaintiff is a citizen of New Jersey; defendant Kroesen is a citizen of Pennsylvania; defendant Mark Cooley is a citizen of Pennsylvania; defendant Old Gaelic Rugby Football Club, Inc. is a corporation incorporated in the Commonwealth of Pennsylvania with its principal place of business at 712 Bower Road, Shermans Dale, Pennsylvania; defendant Eastern Pennsylvania Rugby Union, Inc. (“EPRU”) is a corporation [**4] incorporated in the Commonwealth of Pennsylvania with its principal place of business at 2107 Fidelity Building, Philadelphia, Pennsylvania 19103; and Mid-Atlantic Rugby Football Union, Inc. is a Delaware corporation with its principal place of business at 800 King Street, Wilmington, Delaware.

4 On November 26, 2013, the Court issued an Order to Show Cause directing plaintiff to provide a certification properly stating the citizenship of the parties before the case could proceed, as the citizenship of the parties was not properly pleaded in the original or amended complaints. (See Docket No. 36.) Plaintiff complied with the Court’s Order, and the citizenship of the parties has now been properly averred. (See Pl. Attorney Cert., Docket No. 38-1.)

B. Standard for Summary Judgment

Summary judgment is appropriate where the Court is satisfied that the materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, or interrogatory answers, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); [**5] Fed. R. Civ. P. 56(a).

An issue is “genuine” if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A fact is “material” if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party’s evidence “is to be believed and all justifiable inferences are to be drawn in his favor.” Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that [**6] contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232, 43 V.I. 361 (3d Cir. 2001).

C. Analysis

Cooley has moved for summary judgment in his favor on several bases. One basis is that he is immune from liability for plaintiff’s injuries under N.J.S.A. 2A:62A-6 and 42 U.S.C. § 14501 et seq., both of which afford immunity to volunteer athletic coaches for damages incurred by a player during an organized sports competition. Cooley also argues that plaintiff’s claims against him are barred by plaintiff’s assumption of the risk of injury in the very physical game of rugby, as well as by the annual rugby participation agreement, which includes a provision that by agreeing to play in the league, plaintiff releases all other members and coaches from liability for any damages suffered by plaintiff [*442] through his participation in the league. In addition to these outright bars to plaintiff’s claims against Cooley, Cooley also argues that no facts demonstrate that Cooley was negligent in his coaching duties rendering him liable for [**7] plaintiff’s injuries.

Plaintiff has opposed Cooley’s motion as to the application of N.J.S.A. 2A:62A-6 and 42 U.S.C. § 14501 et seq., his assumption of risk, and the release from liability in the participation agreement. With regard to the volunteer immunity statutes, plaintiff argues that N.J.S.A. 2A:62A-6 does not apply to Cooley because he never completed a safety orientation and training skills program as required by N.J.S.A. 2A:62A-6(c)(2),5 and because Cooley was “grossly negligent,” which conduct is excluded from immunity by N.J.S.A. 2A:62A-6(c)(1). Plaintiff also argues that Cooley cannot avail himself of 42 U.S.C. § 14501 at this point because he failed to plead it as an affirmative defense in his answer to plaintiff’s complaint, and because plaintiff was grossly negligent, which is also exempted from immunity under the federal volunteer immunity act.

5 Cooley represents that in order to serve as a coach for Old Gaelic he completed nationwide USA Rugby training, which included “injury prevention and first aid procedures and general coaching concepts,” as required by N.J.S.A. 2A:62A-6(c)(2). Plaintiff contends, however, that in order to satisfy N.J.S.A. 2A:62A-6(c)(2), plaintiff [**8] was required to take a safety orientation program specifically provided in New Jersey. As set forth below, we need not resolve this issue.

Plaintiff further rejects Cooley’s arguments that because he assumed the risk of being injured by knowingly playing in a contact sport, and because he signed a release from liability for damages resulting from participating in the contact sport, Cooley cannot be held liable for plaintiff’s damages. Plaintiff contends that because Cooley was grossly negligent in his coaching of Old Gaelic, plaintiff did not assume the risk of injury that was beyond the bounds of typical rugby play–namely, Kroesen’s kick to plaintiff’s face that resulted from Cooley’s poor coaching of Kroesen. Plaintiff also contends that the participation agreement releases do not apply to Cooley’s gross negligence.

Even accepting all of plaintiff’s arguments – that the volunteer immunity statutes do not apply, that he did not assume the risk of the injuries he suffered, and that the participation agreements do not bar his claims – plaintiff has failed to establish sufficient facts from which a jury could conclude that Cooley was grossly negligent in his coaching duties.

Under New Jersey [**9] law, in order to prove that a person acted negligently, the plaintiff must establish: (1) a duty of care owed to the plaintiff by the defendant; (2) that defendant breached that duty of care; and (3) that plaintiff’s injury was proximately caused by defendant’s breach. Boos v. Nichtberger, 2013 N.J. Super. Unpub. LEXIS 2455, 2013 WL 5566694, *4 (N.J. Super. App. Div. Oct. 10, 2013) (citing Endre v. Arnold, 300 N.J. Super. 136, 142, 692 A.2d 97 (App. Div. 1997)). The burden of proving a negligence claim rests with the plaintiff, and as part of that burden, it is vital that plaintiff establish that his injury was proximately caused by the unreasonable acts or omissions of the defendant. Id. (citing Camp v. Jiffy Lube No. 114, 309 N.J. Super. 305, 309-11, 706 A.2d 1193 (App. Div.), cert. denied, 156 N.J. 386, 718 A.2d 1215 (1998)) (other citation omitted).

With regard to a claim of gross negligence, “the difference between ‘gross’ and ‘ordinary’ negligence is one of degree rather than of quality.” Fernicola v. Pheasant Run at Barnegat, 2010 N.J. Super. Unpub. LEXIS 1614, 2010 WL 2794074, *2 (N.J. Super. Ct. App. Div. 2010) (quoting Oliver v. Kantor, 122 N.J.L. 528, 532, [*443] 6 A.2d 205 (Sup. Ct. 1939), aff’d o.b., 124 N.J.L. 131, 10 A.2d 732 (E. & A. 1940)). “Gross negligence refers to behavior which constitutes indifference to [**10] consequences.” Griffin v. Bayshore Medical Center, 2011 N.J. Super. Unpub. LEXIS 1165, 2011 WL 2349423, *5 (N.J. Super. Ct. App. Div. 2011) (citing Banks v. Korman Assocs., 218 N.J. Super. 370, 373, 527 A.2d 933 (App. Div. 1987)).

Cooley argues that plaintiff cannot provide any facts to establish that he caused Kroesen to kick plaintiff in the face during a rugby match. Cooley argues that there is no evidence to support that Cooley knew that Kroesen was prone to violence beyond what is typical during a rugby match, which is supported by the fact that Kroesen had never previously received a yellow card (for a small infraction resulting in a period of time out from a game) or a red card (for a serious infraction resulting in discharge from the game).6 Moreover, Cooley argues that plaintiff has not provided any evidence to suggest that Cooley failed in his duty as a coach by affirmatively encouraging Kroesen or any of his players to act violently during a rugby match, or by failing to appreciate a player’s violent tendencies.7

6 Plaintiff does not dispute that he had received three yellow cards in the past.

7 Cooley also counters plaintiff’s allegations that Kroesen intentionally kicked plaintiff in the face, because it is not clear whether [**11] Kroesen, who, according to Cooley and other players, was attempting to save his teammate from being punched by plaintiff, slipped while entering the fray. The dispute over the nature of Kroesen’s and plaintiff’s actions during the altercation is not material to the resolution of plaintiff’s claims against Cooley, however, because to decide Cooley’s motion for summary judgment, it must be accepted as true that Kroesen intentionally kicked plaintiff in the face.

In the context of arguing that Cooley is not entitled to immunity under N.J.S.A. 2A:62A-6(c)(1) because he was grossly negligent in his coaching duties, plaintiff argues that his negligence claim against Cooley is supported by his liability expert, Dr. Leonard K. Lucenko, who is qualified in federal and state courts as an expert in the field of physical education, recreation, coaching, and sports risk management and safety. According to Dr. Lucenko, Cooley deviated from reasonable coaching standards as follows:

1. The failure to exercise due care and foresight even though it was foreseeable that noncompliance with the Laws of the Game of Rugby created the environment for serious and permanent injury.

2. The failure to understand [**12] and appreciate well known coaching risk management principles, such as the nine legal duties of a coach.

3. The failure to properly teach and enforce the Laws of the Game of Rugby.

4. The failure to recognize the dangerous conditions created by the failure to comply with the Laws of the Game of Rugby.

5. The failure to instruct and train the players on what actions to take regarding fighting.

6. The failure to closely monitor and supervise Mr. Kroesen given his intensity as a player.

7. The failure to effectively and adequately address the intense play of Mr. Kroesen, which was resulting in injuries to other players.

8. The failure on the part of Mr. Cooley to understand he was bound by the USA Rugby Coaches’ Code of Conduct.

9. The failure to adopt and follow the principles outlined in the Code of Conduct.

(Pl. Opp. at 13, citing Ex. A.) Plaintiff argues that Dr. Lucenko’s conclusions [*444] present material disputed evidence as to whether Cooley was grossly negligent in his coaching duties, and therefore his claim against Cooley should be sent to a jury to decide.

Gross negligence requires substantial proof beyond simple negligence; it requires wanton or reckless disregard for the safety of others. [**13] Griffin v. Bayshore Medical Center, 2011 N.J. Super. Unpub. LEXIS 1165, 2011 WL 2349423, *5 (N.J. Super. Ct. App. Div. 2011) (citing In re Kerlin, 151 N.J. Super. 179, 185, 376 A.2d 939 (App. Div.1977)). Setting aside any expert qualification issues under Daubert,8 and accepting as true all of Dr. Lucenko’s findings that Cooley failed to properly instruct his players with regard to the propriety of fighting during a rugby match, the Court cannot find that plaintiff has provided sufficient disputed facts to send to a jury on the issue of proximate causation. None of Dr. Lucenko’s conclusions, nor any of the other evidence in the record, demonstrate that Cooley acted indifferently, willfully, or wantonly in his coaching of Kroesen such that he should be held legally responsible for the injuries plaintiff sustained when Kroesen kicked plaintiff in the face.

8 Federal Rule of Evidence 702, as amended in 2000 to incorporate the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), imposes an obligation upon a district court to ensure that expert testimony is not only relevant, but reliable. As the Third Circuit has made clear, “the reliability analysis [required by Daubert] applies to all aspects of an [**14] expert’s testimony: the methodology, the facts underlying the expert’s opinion, [and] the link between the facts and the conclusion.” ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 291 (3d Cir. 2012) (citations omitted). To be admissible, expert testimony must concern subject matter beyond the average juror’s understanding, be sufficiently reliable, and be offered by a sufficiently qualified expert. DeHanes v. Rothman, 158 N.J. 90, 727 A.2d 8 (N.J. 1999).

As noted by the New Jersey courts, the question of the scope of duty among coaches and players is intertwined with considerations of public policy. Egerter v. Amato, 2006 N.J. Super. Unpub. LEXIS 3008, 2006 WL 551571, *3 (N.J. Super. Law Div. 2006) (citing Hopkins v. Fox and Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (N.J. 1993)). The “strong social policy to facilitate free and aggressive participation in athletic activity requires . . . leeway at least where no specific rule or statute has been violated. Otherwise courts and juries will become de facto athletic directors, second guessing actor’s conduct in reviewing generalized claims of negligence.” Id. (citations omitted). “The fact is that any athletic endeavor involves some degree of risk. Coaches are expected to absorb such risks, just like [**15] participants in informal games or athletes on a scholastic gridiron. . . . [J]udges are not athletic directors. They should not formulate standards of care which require them and juries to function as if they were.” Id. (citation omitted).9

9 It is interesting to note that Dr. Lucenko served as plaintiff’s expert in Egerter, where a track coach sued her 8th grade student for injuries she sustained when the student hit her with a shot put. Dr. Lucenko concluded in that case that plaintiff organized, supervised and conducted the practice session in an appropriate and professional manner, but that it was the instantaneous and negligent decision by the student to throw the shot before given the instruction to do so that led to the plaintiff’s severe and life altering injuries. Egerter v. Amato, 2006 N.J. Super. Unpub. LEXIS 3008, 2006 WL 551571, *1 (N.J. Super. Law Div. 2006). On defendant’s motion for summary judgment, the court found that the recklessness standard of negligence applied, and there was no evidence that the student acted recklessly.

In an earlier case proceeding under the same school of thought, and one that is similar to plaintiff’s case here against Cooley, a student in one high school filed suit [*445] against a [**16] soccer coach from another high school for injuries he sustained when an opposing player “undercut” him. Nydegger v. Don Bosco Preparatory High School, 202 N.J. Super. 535, 495 A.2d 485, 485 (N.J. Super. Ct. Law Div. 1985). The student’s allegations against the opposing team’s coach were that he taught his players to compete in an “aggressive and intense manner” and that winning the game is all important. In resolving the coach’s motion to dismiss, the court concluded, “[I]n the absence of an instruction by a coach to one of his players to commit a wrongful act or his instructing one in moves or procedures that would increase the risk of harm to opposing players, a coach is not responsible to a player on an opposing team who is injured.” Nydegger, 495 A.2d at 485. The court elaborated:

Interscholastic sports are not compulsory school programs. Students who participate do so voluntarily. Those who participate in a sport such as soccer expect that there will be physical contact as a result of 22 young men running around a field 50 by 100 yards. Physical contact is not prohibited by the rules of soccer. Injuries do result. Those who participate are trained to play hard and aggressive.

[N]o student or parent [**17] is blind to the realities of interscholastic athletics. The possibility of a serious injury exists regardless of the care exercised by schools and their personnel. Imposing liability upon schools and their coaches based on negligent or wrongful acts of players, committed during the course of play would have the practical effect of eventually eliminating interscholastic athletics. Interscholastic athletic activities have become an integral part of the intellectual, physical and social development of young people. No matter what the intentions or good purpose, a coach cannot insure or guarantee that each and every member of his team will not commit a foul or will not in the heat of the contest do an act beyond that which is acceptable.

A coach cannot be held responsible for the wrongful acts of his players unless he teaches them to do the wrongful act or instructs them to commit the act. There is absolutely no evidence in the record that would support such a finding. Teaching players to be intense and aggressive is an attribute. All sports and many adult activities require aggressiveness and intensity.

Id. at 486-87.

The rationale in Nydegger holds true in this case. Plaintiff voluntarily [**18] participated in an aggressive contact sport where it is common to engage in on-field “rucks.” Plaintiff was involved in a ruck that day, administering a “short jab in the ribs” to the other player, when Kroesen intervened and kicked plaintiff in the face. Absent evidence that Cooley directed Kroesen specifically, or his team in general, to inflict violence onto opposing team players as part of the game, Cooley cannot be held liable for plaintiff’s injuries. Additionally, any of Cooley’s alleged failings as a coach as articulated by Dr. Lucenko cannot serve as the basis for finding proximate causation because there cannot be any definitive conclusion that even if Cooley were the perfect coach, Kroesen would not have acted as he did. See, e.g., id., at 486 (“[A] coach cannot insure or guarantee that each and every member of his team will not commit a foul or will not in the heat of the contest do an act beyond that which is acceptable.”); Divia v. South Hunterdon Regional High School, 2005 WL 977028, *7 (N.J. Super. Ct. App. Div. 2005) (explaining that proximate cause is the efficient cause, the one which necessarily sets the other causes in operation; it is the act or omission, which [**19] directly brought about [*446] the happening complained of, and in the absence of which the happening complained of would not have occurred) (citing Verdicchio v. Ricca, 179 N.J. 1, 843 A.2d 1042, 1057 (N.J. 2004) (explaining that merely establishing that a defendant’s negligent conduct had some effect in producing the harm does not automatically satisfy the burden of proving it was a substantial factor)).

In sum, the evidence in the record, viewed most favorably to plaintiff, cannot support his claim that Cooley was grossly negligent in his coaching of Kroesen such that Cooley can be held liable for plaintiff’s injuries inflicted by Kroesen during the rugby match. Consequently, Cooley’s motion for summary judgment must be granted.10 An appropriate Order will be entered.

10 Plaintiff’s only remaining claim in this case is against Kroesen, upon whom the Clerk entered default at plaintiff’s request. (See 1/28/2011 Docket Entry.) As directed in the accompanying Order, plaintiff shall commence prosecution of his claim against Kroesen within 30 days, or this matter will be closed for lack of prosecution.

Date: March 25, 2014

At Camden, New Jersey

/s/ Noel L. Hillman

NOEL L. HILLMAN, U.S.D.J.

ORDER

For the reasons expressed [**20] in the Court’s Opinion filed today,

IT IS on this 25th day of March , 2014

ORDERED that defendant Mark Cooley’s motion for summary judgment [34] is GRANTED; and it is further

ORDERED that, within 30 days of the date of this Order, plaintiff shall commence prosecution of his claims against defendant John A. Kroesen. If plaintiff fails to do so, plaintiff’s case will be closed for lack of prosecution.

/s/ Noel L. Hillman

NOEL L. HILLMAN, U.S.D.J.


Wagner v. McGrady, 2009-Ohio-987; 2009 Ohio App. LEXIS 798

Wagner v. McGrady, 2009-Ohio-987; 2009 Ohio App. LEXIS 798

Dennis Wagner, Appellee v. Terry McGrady, Appellant

Court of Appeals No. S-08-010

COURT OF APPEALS OF OHIO, SIXTH APPELLATE DISTRICT, SANDUSKY COUNTY

2009-Ohio-987; 2009 Ohio App. LEXIS 798

March 6, 2009, Decided

PRIOR HISTORY: [**1]

Trial Court No. CVI 0700292.

COUNSEL: Terry J. Lodge, for appellant.

JUDGES: HANDWORK, J. Peter M. Handwork, J., Arlene Singer, J., William J. Skow, P.J., CONCUR.

OPINION BY: Peter M. Handwork

OPINION

DECISION AND JUDGMENT

HANDWORK, J.

[*P1] This case is before the court on appeal from a judgment of the Sandusky County Court, District No. 2. Appellant, Terry McGrady, asserts the following assignments of error:

[*P2] “Assignment of Error No. 1. A volunteer animal rescuer has no duty to learn the identify [sic] of a putative owner of a dog who makes no immediate attempt to reclaim his lost animal and is not liable for adoption of the dog to another home after reasonable efforts have been made.

[*P3] “Assignment of Error No. 2. Appellant was not a proper Defendant because he was an unpaid volunteer working for a nonprofit humanitarian agency.

[*P4] “Assignment of Error No. 3. There was no basis for the damage award of $ 500.00.

[*P5] “Assignment of Error No. 4. The court’s ruling was against the manifest weight of the evidence.”

[*P6] Appellee failed to file an appellate brief; therefore, we shall take appellant’s recitation of the facts and issues as correct and reverse the judgment of the trial court if that brief reasonably sustains that action. [**2] See App.R. 18(C); United Bhd. of Carpenters & Joiners of Am., Local Union No. 1581 v. Edgerton Hardware Co., Inc., 6th Dist. No. WM-06-017, 2007 Ohio 3958, P 4.

[*P7] Appellant is a volunteer for the Society for the Protection of Animals, Inc. (“SPA”), an Ohio nonprofit corporation that provides a rescue service for stray cats and dogs. During the early morning hours of Saturday, October 13, 2007, appellant discovered a large brown dog, a chocolate Labrador Retriever, at his back door. Because he and his wife were already fostering several animals, appellant took the dog to the Fremont Animal Hospital to be boarded. He also called the pound to alert them of a lost dog.

[*P8] On the following Monday, October 15, 2007, appellant called the Fremont News Messenger and placed an advertisement asking anyone who had lost a large dog in the area of County Road 41 in Fremont to call his telephone number (also listed in the ad) and describe the dog. The ad ran for three days, October 16 through October 18, 2007. On Friday, October 19, 2007, the dog was neutered, checked for heartworm, and given all of his “shots.” The owner listed on the veterinarian’s medical record is the SPA. On Saturday, the dog was [**3] adopted by a family who had previously adopted dogs from the SPA. The new owner of the Labrador Retriever signed the SPA’s standard adoption contract, and the SPA received the $ 75 adoption fee. At the trial of this cause, appellant also provided the affidavit of the new owner of the dog stating that she had adopted the Labrador Retriever from the SPA.

[*P9] In his testimony, Wagner claimed that his chocolate Labrador Retriever, which was tied to a doghouse, “slipped his collar and disappeared” on October 13, 2007. After asking his neighbor whether he had seen the dog and learning that he had not seen him, appellee drove around the vicinity looking for the dog. Appellee went to the dog pound on either October 16 or October 17, 2007, to see if his Labrador Retriever was “picked up” by the dog warden. Wagner further testified that on Friday, October 19, 2007, someone from the pound called him and stated that appellant might have his dog. According to appellee, he spoke with McGrady the next day and appellant admitted that the Labrador Retriever was appellee’s dog. Appellant, however, also informed appellee of the fact that the dog was already adopted by another family.

[*P10] In December 2007, Wagner [**4] filed the instant small claims lawsuit, seeking a judgment in the amount of $ 750, plus interest, from McGrady, as compensation for the conversion of his property, that is, the dog. At the hearing on appellee’s complaint, appellant maintained that any actions he took with regard to the Labrador Retriever he found was done in his capacity as a volunteer for a nonprofit charitable organization, that is, the SPA, and he was, therefore, not liable for any damages suffered by appellee for the loss of his dog.

[*P11] On February 6, 2008, the small claims judge entered a judgment awarding appellee $ 500. The judge held: “At time defendant adopted dog out, they knew to [sic] owner of dog was looking for his dog 1. Membership in SPA does not give immunity for sale or adopting animal that belongs to another.” This timely appeal followed.

1 There is no evidence in the record of this cause to establish that appellant knew the dog belonged to appellee at the time it was adopted.

[*P12] Because it is dispositive of this appeal, we shall first consider appellant’s second assignment of error. In that assignment, appellant contends that as a volunteer for a nonprofit charitable organization, he was not the party in [**5] interest and is immune from suit under R.C. 2305.38. We agree. R.C. 2305.38 provides, in pertinent part:

[*P13] “(A) [HN1] As used in this section:

[*P14] “* * *

[*P15] “(5) ‘Volunteer’ means an officer, trustee, or other person who performs services for a charitable organization but does not receive compensation, either directly or indirectly, for those services.

[*P16] “* * *

[*P17] “(C) [HN2] A volunteer is not liable in damages in a civil action for injury, death, or loss to person or property that arises from the volunteer’s actions or omissions in connection with any supervisory or corporate services that the volunteer performs for the charitable organization, unless either of the following applies:

[*P18] “(1) An action or omission of the volunteer involves conduct as described in division (B)(1) or (2) of this section;

[*P19] “(2) An action or omission of the volunteer constitutes willful or wanton misconduct or intentionally tortious conduct.”

[*P20] [HN3] A volunteer is liable for damages in a civil action for injury, death, or loss to person or property under R.C. 2305.38(B) only if either of the following applies:

[*P21] “(1) With prior knowledge of an action or omission of a particular officer, employee, trustee, or other volunteer, the volunteer authorizes, [**6] approves, or otherwise actively participates in that action or omission.

[*P22] “(2) After an action or omission of a particular officer, employee, trustee, or other volunteer, the volunteer, with full knowledge of that action or omission, ratifies it.”

[*P23] In the present case, all of the evidence offered at trial demonstrates that appellant was acting in his capacity as a volunteer working for SPA, an undisputed nonprofit charitable organization. Furthermore, no evidence was offered to show that appellant’s actions would render him liable to Wagner for damages suffered as the result of the loss of Wagner’s dog, if, indeed, the dog found by appellant was appellee’s dog, under R.C. 2305.38 (B)(1) and/or (2) or pursuant to R.C. 2305.38(C). Accordingly, appellant’s second assignment of error is found well-taken. Appellant’s first, third, and fourth assignments of error are, thereby, rendered moot.

[*P24] The judgment of the Sandusky County Court, District No. 2 is reversed. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk’s expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Sandusky County.

JUDGMENT [**7] REVERSED.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.

Peter M. Handwork, J.

Arlene Singer, J.

William J. Skow, P.J.

CONCUR.


Stemke v. Mastrogiacomo, 2014 N.Y. Misc. LEXIS 906; 2014 NY Slip Op 30504(U)

Stemke v. Mastrogiacomo, 2014 N.Y. Misc. LEXIS 906; 2014 NY Slip Op 30504(U)

Warren Stemke, as Father and Natural Guardian of Brian Stemke, an infant under the age of eighteen (18) yeas and Warren Stemke, Individually, Plaintiffs, – against – Campbell Mastrogiacomo an infant under the age of eighteen (18) years by his Parents and Natural Guardians, Cheryl Mastrogiacomo and Michael Mastrogiacomo, Cheryl Mastrogiacomo, Michael Mastrogiacomo, Middle Country Boys Lacrosse Club, Inc., Suffolk County Police Athletic League, Inc., Roger Tobias, World Gym, and Parisi Speed School, Defendants. Index No. 11-10634

11-10634

SUPREME COURT OF NEW YORK, SUFFOLK COUNTY

2014 N.Y. Misc. LEXIS 906; 2014 NY Slip Op 30504(U)

February 26, 2014, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

COUNSEL: [*1] For Plaintiff: EDELMAN, KRASIN & JAYE, PLLC, Carle Place, New York.

For Defendants Mastrogiacomo: RICHARD T. LAU & ASSOCIATES, Jericho, New York.

For Defendants Middle Country Boys Lacross, Suffolk County Police Athletic League & Roger Tobias: RIVKIN RADLER LLP, Uniondale, New York.

For Defendants World Gym & Parisi Speed School: MIRANDA SAMBURSKY SLOAN SKLARIN VERVENIOTIS LLP, Mineola, New York.

JUDGES: PRESENT: Hon. PETER H. MAYER, Justice of the Supreme Court.

OPINION BY: PETER H. MAYER

OPINION

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion/Order to Show Cause by the defendants World Gym & Parisi Speed School, dated June 20, 2013, and supporting papers (including Memorandum of Law dated ); Notice of Motion/Order to Show Cause by the defendants Middle Country Boys Lacrosse Club, Inc., Suffolk Police Athletic League, Inc. & Roger Tobias, dated June 21, 2013, and supporting papers (including Memorandum of Law dated ); Notice of Motion /Order to Show Cause by the defendants Cheryl & Michael Mastrogiacomo, dated July 12, 2013, and supporting papers (including Memorandum of Law dated ); (2) Affirmation in Opposition by the defendants World Gym & Parisi Speed School, dated [*2] August 12, 2013, and supporting papers; Affirmation in Opposition by the plaintiffs, dated September 6, 2013, and supporting papers; [**2] (3) Reply Affirmation by the defendants World Gym & Parisi Speed School, dated September 12, 2013, and supporting papers; Reply Affirmation by the defendants Middle Country Boys Lacrosse Club, Inc., Suffolk Police Athletic League, Inc. & Roger Tobias, dated September 16, 2013, and supporting papers; (4) Other Memorandum of Law (and after hearing counsels’ oral arguments in support of and opposed to the motion); and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the motion (#004) by defendants Middle Country Boys Lacrosse Club, Inc., Suffolk County Police Athletic League, Inc., and Roger Tobias, the motion (#005) by defendants Setauket Country Club Ltd and Parisi Speed School, and the motion (#006) by defendants Cheryl Mastrogiacomo and Michael Mastrogiacomo are consolidated for the purposes of this determination; and it is

ORDERED that the motion (#004) by defendants Middle Country Boys Lacrosse Club, Inc., Suffolk County Police Athletic League, Inc., and Roger Tobias [*3] for summary judgment dismissing the complaint against them is granted; and it is

ORDERED that the motion (#005) by defendants Setauket Country Club Ltd and Parisi Speed School for summary judgment dismissing the complaint against them is denied; and it is further

ORDERED that the motion (#006) by defendants Cheryl Mastrogiacomo and Michael Mastrogiacomo for summary judgment dismissing the complaint against them is granted.

On November 20, 2010, infant plaintiff Brian Stemke, who at that time was 12 years old and a member of a lacrosse team run by defendant Middle Country Boys Lacrosse Club, Inc., was injured while attending a training program run by defendant Parisi Speed School at a facility owned by defendant Setauket Country Club, Ltd, d/b/a World Gym Setauket, when he collided with infant defendant Campbell Mastrogiacomo and fell to the floor. Infant plaintiff’s father, plaintiff Warren Stemke, suing individually and on behalf of his son, commenced this action against defendants, alleging they failed to provide adequate supervision of infant plaintiff and the other participants in the training session.

Defendants Middle Country Boys Lacrosse Club, Inc., Suffolk County Police Athletic [*4] League, Inc., and Roger Tobias (hereinafter collectively referred to as the Lacrosse Club defendants) now move for summary judgment dismissing the complaint against them, arguing that they had no duty to supervise infant plaintiff or Campbell Mastrogiacomo at the time and place of the subject incident, and that the alleged inadequate supervision was not the proximate cause of infant plaintiff’s injuries. They also argue that the Volunteer Protection Act shields defendant Roger Tobias, coach of the Middle Country Boys Lacrosse team, from personal liability. In support of their motion, the Lacrosse Club defendants submit copies of the pleadings, transcripts of the parties’ deposition testimony, and an affidavit of Michael Harvey.

Defendants Setauket Country Club Ltd and Parisi Speed School (hereinafter collectively referred to as the World Gym defendants) move for summary judgment dismissing the complaint and all cross claims against them, arguing that the actions of Campbell Mastrogiacomo were unforeseeable. In support of their motion, they submit copies of the pleadings and transcripts of the parties’ deposition testimony.

Defendants Cheryl Mastrogiacomo and Michael Mastrogiacomo (hereinafter [*5] collectively referred to as the Mastrogiacomo defendants) move for summary judgment dismissing the complaint against them on the grounds that they had no knowledge of any propensity on the part of their son, infant defendant Campbell Mastrogiacomo, to engage in conduct which could be deemed “vicious” or dangerous to others. In support of their motion, they submit copies of the pleadings and transcripts of the deposition testimony [**3] of Cheryl Mastrogiacomo and Campbell Mastrogiacomo.

Plaintiffs oppose defendants’ motions, arguing that triable issues of fact exist as to the adequacy and the quality of the supervision prior to the incident. As to the Mastrogiacomo’s motion, plaintiffs also argue that it is untimely. The World Gym defendants partially oppose the motion by the Lacrosse Club defendants, arguing that they cannot be liable for infant plaintiff’s injuries as they had no notice of the unforeseeable actions of Campbell Mastrogiacomo.

The affidavit of Michael Harvey, a Suffolk County Police Officer and Police Coordinator of the Police Coordinator of the Suffolk County Police Athletic League’s (PAL) lacrosse program, states that the PAL is a not-for-profit corporation which, among [*6] other things, supports juvenile crime prevention and promotes recreational sports programs for minors throughout Suffolk County. It states that the PAL does not organize, schedule, supervise, manage or run any clinics or training sessions for players in its lacrosse league at Parisi Speed School or World Gym Setauket. It states that the subject training session at Parisi Speed School and the lacrosse practice held by Tobias for the lacrosse players affiliated with the Middle Country lacrosse program was arranged independently by Middle Country Boys Lacrosse Club. It further states that no member of the PAL was present for the offseason lacrosse workouts or practices that were held by Tobias on the date of the incident.

At his examination before trial, Tobias testified that he was a volunteer lacrosse coach for the Middle Country Boys Lacrosse Club, which is a town league that is a part of the Suffolk County Police Athletic League. He testified that he organized a training session with Parisi Speed School at World Gym Setauket for the players on the lacrosse team, including players who would be joining the team for the upcoming season. He explained that Parisi Speed School is a training [*7] center for speed and agility, where the participants do exercises and work on running techniques. Tobias testified that he attended the training session, as his son was on the lacrosse team, and that some of the other parents stayed to observe the training session. He testified that he observed the children “messing around,” bouncing three-foot wide, light-weight yoga balls. He testified that he told the children to stop bouncing the balls because the training session had just begun and the training did not involve use of the yoga balls. He testified that he did not observe the incident, but learned that infant plaintiff was injured when his mother came to pick him up. Tobias testified that he is not aware of any behavioral issues involving Campbell Mastrogiacomo, and that Campbell’s father was present at the training session.

At his examination before trial, infant plaintiff testified that on the day of the incident, he was dropped off by his mother at World Gym Setauket for training in the Parisi Speed School. He testified that he was waiting on the gym floor for the training session to begin with about 20 other boys when Campbell Mastrogiacomo sprinted towards him and pushed him, [*8] causing him to fall. Infant plaintiff explained that he was holding a yoga ball, intending to return it to a bin, when Campbell collided with the ball that he was holding. Infant plaintiff testified that there were no adults in the room at the time of the incident, and that the trainer had not arrived yet.

At his examination before trial, Campbell Mastrogiacomo testified that he was waiting with other members of the lacrosse team for the training session to begin at Parisi Speed School when the incident occurred. He testified that all the children waiting there were running around kicking and throwing the yoga balls; that the yoga balls were just “flying everywhere”; and that no one told them to stop. He testified [**4] that some of the children were playing catch with the yoga balls and some were throwing them at each other. He testified that he observed infant plaintiff playing with the yoga balls. Campbell Mastrogiacomo testified that he was trying to avoid being hit by a yoga ball when he ran into infant plaintiff, causing both of them to fall. He further testified that he did not observe infant plaintiff immediately prior to the accident, and that he accidentally ran into him. He testified [*9] that in the 20 minutes that he was waiting for the training session to begin, he did not observe any employees or trainers from Parisi Speed School at the facility, but that there were five or six parents present, including Tobias.

At his examination before trial, Tom Jaklitsch, general manager of World Gym Setauket, testified that Parisi Speed School is a franchise that World Gym Setauket purchased, which is designed to instruct athletes to improve their speed, agility and strength. He testified that at the time of the incident, Michael Strockbine, the program director, would run the Parisi Speed School training sessions. He testified that Strockbine is no longer employed by World Gym Setauket.

On a motion for summary judgment the movant bears the initial burden and must tender evidence sufficient to eliminate all material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 476 N.E.2d 642, 487 NYS2d 316 [1985]). Once the movant meets this burden, the burden shifts to the opposing party to demonstrate that there are material issues of fact, however, mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues of fact (see Zuckerman v City of New York, 49 NY2d 557, 404 N.E.2d 718, 427 NYS2d 595 [1980]; [*10] Perez v Grace Episcopal Church, 6 AD3d 596, 774 NYS2d 785 [2d Dept 2004]). The court’s function is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility; therefore, in determining the motion for summary judgment, the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true (see Roth v Barreto, 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; O’Neill v Fishkill, 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]).

To prove a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries (see Pulka v Edelman, 40 NY2d 781, 358 N.E.2d 1019, 390 NYS2d 393 [1976]; Engelhart v County of Orange, 16 AD3d 369, 790 NYS2d 704 [2d Dept], lv denied 5 NY3d 704, 834 N.E.2d 780, 801 NYS2d 1 [2005]). A duty of reasonable care owed by the tortfeasor to the plaintiff is essential to any recovery in negligence (Eiseman v State, 70 NY2d 175, 187, 511 N.E.2d 1128, 518 NYS2d 608 [1987]; see Espinal v Melville Snow Contrs., 98 NY2d 136, 773 N.E.2d 485, 746 NYS2d 120 [2002]; Pulka v Edelman, supra). Although juries determine whether and to what extent a particular duty [*11] was breached, it is for the courts to decide in the first instance whether any duty exists and, if so, the scope of such duty (Church v Callanan Indus., 99 NY2d 104, 110-111, 782 N.E.2d 50, 752 NYS2d 254 [2002]; Darby v Compagnie Natl. Air France, 96 NY2d 343, 347, 753 N.E.2d 160, 728 NYS2d 731 [2001]; Waters v New York City Hous. Auth., 69 NY2d 225, 229, 505 N.E.2d 922, 513 NYS2d 356 [1987]). Courts traditionally “fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability” (Palka v Servicemaster Management Servs. Corp., 83 NY2d 579, 586, 634 N.E.2d 189, 611 NYS2d 817 [1994]; see Tagle v Jakob, 97 NY2d 165, 763 N.E.2d 107, 737 NYS2d 331 [2001]).

Enacted to provide volunteers serving nonprofit organizations and government entities with “certain protections from liability abuses” (42 USC § 14501 [b]), the federal Volunteer Protection Act immunizes [**5] individuals who perform services for a not-for-profit corporation and do not receive compensation exceeding $500 per year from liability for harm they [*12] caused in the scope of their duties, provided the harm was not caused by “willful or criminal misconduct, gross negligence, reckless misconduct or a flagrant indifference to the rights or safety of the individual harmed by the volunteer” (42 USC § 14503 [a][3]). Here, the evidence submitted in support of the motion shows Tobias was an unpaid volunteer for the Middle Country Boys Lacrosse Club at the time the incident occurred.

The Lacrosse defendants contend that PAL, Middle Country Boys Lacrosse Club, and Tobias owe no duty to supervise infant plaintiff, as the incident occurred inside the World Gym Setauket facility and involved infant plaintiff and defendant Campbell Mastrogiacomo, who were there to participate in a training session given by Parisi Speed School. According to the affidavit of Harvey, the PAL did not organize or schedule the training session at the Parisi school, and no PAL members were present at the time of the incident.

Here, Tobias, the coach of Middle Country Boys Lacrosse Club, organized and scheduled the training session for the lacrosse club, and was present at the facility at the time of the incident. However, while members of the lacrosse club were invited [*13] to the training session by Tobias, the lacrosse club had no control over training or supervision of the members at the time of the incident, and thus had no duty to infant plaintiff (see Mercer by Mercer v City of New York, 255 AD2d 368, 679 NYS2d 694 [2d Dept 1998]; Mongello v Davos Ski Resort, 224 AD2d 502, 638 NYS2d 166 [2d Dept 1996]). In opposition, plaintiffs failed to raise a triable issue of fact as to whether the Lacrosse defendants owed a duty to infant plaintiff. Plaintiffs’ counsel fails to assert any specific arguments in opposition to the Lacrosse defendants, and merely mentions in a footnote that a question of fact exists as to whether Tobias was operating within the scope of a volunteer, and thus whether the Volunteer Protection Act applies. Accordingly, the motion for summary judgment dismissing the complaint by the Lacrosse Club defendants is granted.

The motion for summary judgment by the World Gym defendants, however, is denied. The World Gym defendants, as an owner or tenant in possession of real property who holds their property open to the public, have a general duty to maintain it in a reasonably safe condition so as to prevent the occurrence of foreseeable injuries [*14] (see Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 407 N.E.2d 451, 429 NYS2d 606 [1980]; Kimen v False Alarm, Ltd., 69 AD3d 579, 893 NYS2d 158 [2d Dept 2010]; Boderick v R.Y. Mgmt. Co., 71 AD3d 144, 897 NYS2d 1 [1st Dept 2009]; Meyer v Tyner, 273 AD2d 364, 709 NYS2d 618 [2001]). Significantly, the World Gym defendants failed to submit sufficient evidence from a party with first hand knowledge of the supervision provided to the participants of the training session. Moreover, the contention that the actions of Campbell Mastrogiacomo were sudden and abrupt is without merit, as his testimony reveals that the children were running around and throwing the yoga balls for approximately 20 minutes before the accident. Thus, World Gym failed to establish a prima facie case that the accident occurred so suddenly and in such a short span of time that no level of supervision could have prevented it (see Oliverio v Lawrence Pub. Schools, 23 AD3d 633, 805 NYS2d 638 [2d Dept 2005]; Douglas v John Hus Moravian Church of Brooklyn, Inc., 8 AD3d 327, 778 NYS2d 77 [2d Dept 2004]; c.f. Lopez v Freeport Union Free School Dist., 288 AD2d 355, 734 NYS2d 97 [2d Dept 2001]). A triable issue of fact also exists as to whether the [*15] World Gym defendants were negligent in leaving the yoga balls out in the area where the children were waiting, which presented a danger of improper use, and in failing to have an adult present to supervise the children. Accordingly, the motion by the World Gym defendants for summary judgment dismissing the complaint against them is denied.

[**6] With regard to the motion for summary judgment by the Mastrogiacomo defendants, parents have an obligation to supervise their children (Holodook v Spencer, 36 NY2d 35, 45, 324 N.E.2d 338, 364 NYS2d 859 [1974]), and may be held liable to a third-party for injury caused by an infant child’s improvident use of a dangerous instrument if they entrusted the child with such dangerous instrument (see Holodook v Spencer, 36 NY2d 35, 324 N.E.2d 338, 364 NYS2d 859; Nolechek v Gesuale, 46 NY2d 332, 385 N.E.2d 1268, 413 NYS2d 340 [1978]). Parents also may be held liable for the torts of their infant child if they negligently failed to restrain the child from committing a vicious act, if they had knowledge that the child had a propensity to engage in violent or vicious conduct (see Rivers v Murray, 29 AD3d 884, 815 NYS2d 708 [2d Dept 2006]; Armour v England, 210 AD2d 561, 619 NYS2d 807 [3d Dept 1994]; Steinberg v Cauchois, 249 AD 518, 293 NYS2d 147 [2d Dept 1937]). [*16] Evidence of a single incident of violence involving the infant child, however, is not sufficient to establish that the child had a propensity to engage in vicious conduct (see Davies v Incorporated Vil. of E. Rockaway, 272 AD2d 503, 708 NYS2d 147 [2d Dept 2000]; Armour v England, supra).

Initially, the Court notes that while the Mastrogiacomo defendants’ motion for summary judgment was untimely, having been made more than 120 days after the filing of the note of issue in this action, an untimely motion for summary judgment may nevertheless be considered as long as it involves issues related to a timely pending summary judgment motion (see CPLR 3212 [a]; James v Jamie Towers Hous. Co., 294 AD2d 268, 743 NYS2d 85 [2002], affd 99 NY2d 639, 790 N.E.2d 1147, 760 NYS2d 718 [1st Dept 2003]; see also, Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 793 NYS2d 176 [2d Dept 2005]). Under the instant circumstances the issues raised by the Mastrogiacomo defendants’ untimely motion are already properly before the Court and thus, the nearly identical nature of the grounds may provide the requisite good cause to review the untimely motion on the merits.

Here, there is no evidence in the record that defendants Cheryl [*17] Mastrogiacomo and Michael Mastrogiacomo had knowledge prior to the subject incident that their son had a propensity to engage in vicious conduct. The testimony of Cheryl Mastrogiacomo reveals that she was aware of an incident where Campbell pulled the pants of another student down in the cafeteria, and an incident when he was in the fourth grade where a child was injured while they were “horseplaying.” However, those incidents are insufficient to establish that Campbell had a tendency to engage in vicious conduct which might endanger a third-party (see Rivers v Murray, supra; Armour v England, supra). In opposition, plaintiffs’ merely argue that the motion by Mastrogiacomo defendants was untimely. Accordingly, the motion by the Mastrogiacomo defendants for summary judgment dismissing the complaint against them is granted.

The action is severed and shall continue against defendants World Gym, Parisi Speed School, and Campbell Mastrogiacomo.

Dated: 2/26/14

/s/ Peter H. Mayer

PETER H. MAYER, J.S.C.


The Wrongful Death Beneficiaries of Christopher Elliot, Deceased, Plaintiffs v. La Quinta Corporation, 2007 U.S. Dist. LEXIS 16837

The Wrongful Death Beneficiaries of Christopher Elliot, Deceased, Plaintiffs v. La Quinta Corporation, 2007 U.S. Dist. LEXIS 16837

The Wrongful Death Beneficiaries of Christopher Elliot, Deceased, Plaintiffs v. La Quinta Corporation, La Quinta Properties, Inc., La Quinta Development Partners, LP, Securitas Security Services Usa, Inc., Harry J. Burnham, Jeanette Ollie, Individually and d/b/a Shaw Athletic Youth Association, and John Does 1 through 5, Defendants

CASE NO. 2:06CV56

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI, DELTA DIVISION

2007 U.S. Dist. LEXIS 16837

March 8, 2007, Decided

COUNSEL: [*1] For The Wrongful Death Beneficiaris of Christopher Elliott, Deceased, Plaintiff: Dana J. Swan, LEAD ATTORNEY, CHAPMAN, LEWIS & SWAN, Clarksdale, MS; David Randall Wade, LEAD ATTORNEY, DAVID R. WADE, ATTORNEY, Florence, MS.

For LaQuinta Corporation, LaQuinta Properties, Inc., LaQuinta Development Partners, LP, Defendants: Monte L. Barton, Jr., LEAD ATTORNEY, COPELAND, COOK, TAYLOR & BUSH, Ridgeland, MS; Philip J. Chapman, COPELAND, COOK, TAYLOR & BUSH – Ridgeland, Ridgeland, MS.

For Securitas Security Services USA, Inc., Harry J. Burnham, Defendants: Dorrance Aultman, LEAD ATTORNEY, AULTMAN, TYNER & RUFFIN, LTD., Hattiesburg, MS; William Heath Hillman, LEAD ATTORNEY, AULTMAN, TYNER, MCNEESE & RUFFIN, Hattiesburg, MS.

JUDGES: Michael P. Mills, UNITED STATES DISTRICT JUDGE.

OPINION BY: Michael P. Mills

OPINION

MEMORANDUM OPINION

This cause comes before the court on the plaintiffs’ motion to remand [14] as well as the plaintiffs’ motion [24] to amend to add non-diverse defendants. The court has reviewed the briefs and submissions and is prepared to rule.

This is an action for the wrongful death of sixteen year old minor Christopher Elliot. Christopher drowned at the La Quinta [*2] Inn while on a trip with a community youth basketball team. This case was removed to federal court on March 31, 2006 from the Circuit Court of Bolivar County based on diversity of citizenship and federal question jurisdiction. Defendant Jeanette Ollie did not join in the removal and the other defendants have alleged that Ms. Ollie has been fraudulently joined in this action. The defendants also assert that any stated cause of action against Ms. Ollie is preempted by the Federal Volunteer Protection Act, giving rise to federal jurisdiction. The plaintiffs assert that they have stated claims against Ms. Ollie upon which relief can be granted, and further contend that there is no federal question in this lawsuit.

The defendant’s claim that the Federal Volunteer Protection Act, 42 U.S.C. 14501 et seq., gives rise to a federal question is incorrect. In Richardson v. United Steelworkers of America, the Fifth Circuit stated:

One clear feature of the “arising under” requirement, however, is the well-pleaded complaint rule: whether a claim arises under federal law must be determined from the allegations in the well-pleaded complaint. See generally [*3] Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3566 (2d ed.1984). In removal cases removed, the plaintiff’s well-pleaded complaint, not the removal petition, must establish that the case arises under federal law. See Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 106 S. Ct. 3229, 3232, 92 L. Ed. 2d 650 (1986); Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 103 S. Ct. 2841, 2847, 77 L. Ed. 2d 420 (1983). This requires the court to determine federal jurisdiction only from those allegations necessary to state a claim or, stated alternatively, a federal court does not have jurisdiction over a state law claim because of a defense that raises a federal issue. Franchise Tax Bd., 103 S. Ct. at 2846; Gully v. First Nat’l Bank, 299 U.S. 109, 57 S. Ct. 96, 81 L. Ed. 70 (1936); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). Under the well-pleaded complaint rule, federal preemption is generally a defensive issue that does not authorize removal of a case to federal court. See Powers, 719 F.2d at 764-65. [*4]

864 F.2d 1162, 1168 (5th Cir. 1989).

While it is true that when a federal cause of action completely preempts a state cause of action, any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law, that is not the case in the instant matter. See Richardson at 1169. The language of 42 U.S.C. 14502(a) states that “this chapter preempts the laws of any State to the extent that such laws are inconsistent with this chapter, except that this chapter shall not preempt any State law that provides additional protection from liability relating to volunteers or to any category of volunteers in the performance of services for a nonprofit or governmental entity.” As such, the Volunteer Protection Act does not completely preempt state law and does not give rise to a federal question.

The removing party, which is urging jurisdiction on the court, also bears the burden of demonstrating that jurisdiction is proper due to fraudulent/improper joinder. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir. 1992). The Fifth Circuit has stated:

The burden [*5] of persuasion placed upon those who cry “fraudulent joinder” is indeed a heavy one. In order to establish that an in-state defendant has been fraudulently joined, the removing party must show either that there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court; or that there has been outright fraud in the plaintiff’s pleadings of jurisdictional facts.

B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). The Fifth Circuit has reaffirmed that it “is insufficient that there be a mere theoretical possibility” of recovery; to the contrary, there must “at least be arguably a reasonable basis for predicting that state law would allow recovery in order to preclude a finding of fraudulent joinder.” Travis v. Irby, 326 F.3d 644, 648 (5th Cir. 2003)(citing Badon v. RJR Nabisco Inc., 224 F.3d 382, 386 (5th Cir. 2000)).

The defendants’ task is made considerably more difficult by the Fifth Circuit’s decisions in Smallwood v. Illinois Central Railroad Co., 385 F.3d 568 (5th Cir. 2004) and McKee v. Kansas City Southern Ry. Co., 358 F.3d 329, 336 n.2 (5th Cir. 2004). [*6] A majority of the en banc Fifth Circuit in Smallwood observed that:

Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder. That said, there are cases, hopefully few in number, in which a plaintiff has stated a claim, but has misstated or omitted discrete facts that would determine the propriety of joinder. In such cases, the district court may, in its discretion, pierce the pleadings and conduct a summary inquiry. … Discovery by the parties should not be allowed except on a tight judicial tether, sharply tailored to the question at hand, and only after a showing of its necessity.

Smallwood, 385 F.3d at 573. The Fifth Circuit in McKee similarly emphasized that the fraudulent joinder standard is more akin to a 12(b)(6) standard than the quasi-summary judgment standard which had previously been applied by many district judges in this circuit. It is accordingly plain, in light of McKee and Smallwood, that the improper/fraudulent joinder standard is far more deferential to a plaintiff’s allegations than had commonly been assumed.

With regard to defendant Ollie, the plaintiffs [*7] have alleged:

“That the Defendant, Jeanette Ollie d/b/a Shaw Athletic Youth Association, (“Ollie”), undertook and assumed a duty to supervise the minors in the group while in Jackson, Mississippi, but negligently failed to do so.”

The plaintiffs clearly allege negligent supervision against Ms. Ollie. However, under the Volunteer Protection Act, volunteers cannot be liable for simple negligence. The plaintiffs maintain that the Volunteer Protection Act does not apply to Ollie or the Shaw Athletic Youth Association because the organization has not received any federal designation as a qualifying exempt organization under 26 U.S.C. § 501(c)(3). Ms. Ollie has submitted an affidavit that avers that the “Shaw Athletic Youth Association” is a fictitious name created for the single purpose of ascribing a name to the group that would be traveling to Jackson, but that the group has not been formally organized or incorporated. The defendants contend that the Volunteer Protection Act does not require formal organization or articles of incorporation and presents competing affidavits regarding Ms. Ollie’s status as a volunteer for an amateur youth [*8] basketball team.

The term “nonprofit organization” is defined by the statute as a) any organization which is described in section 501(c)(3) of such title and is exempt from tax under section 501(a) of Title 26 and which does not practice any action which constitutes a hate crime referred to in subsection (b)(1) of the first section of the Hate Crime Statistics Act (28 U.S.C. 534); or b) any not-for-profit organization which is organized and conducted for public benefit and operated primarily for charitable, civic, educational, religious, welfare, or health purposes and which does not practice any action which constitutes a hate crime referred to in subsection (b)(1) of the first section of the Hate Crime Statistics Act. The legislative history of the act reflects that the bill covers not only “501(c)(3) organizations, but it also covers volunteers of the organizations which do good work, but do not have a tax exemption under 501(c)(3).” 143 Cong. Rec. S4915-05. The legislative history also indicates that the bill also “covers volunteers of local charities, volunteer fire departments, little leagues, veterans groups, trade associations, chambers of commerce, [*9] and other nonprofit entities that exist for charitable, religious, educational, and civic purposes.” Id.

Given the extremely broad definition of “organization” under the Volunteer Protection Act as well as the fact that the youths traveled to Jackson together as a team to engage in recreational sport, this court finds that the group constitutes an organization for the purposes of the Volunteer Protection Act. Under the Volunteer Protection Act a volunteer is not liable for simple negligence. The plaintiffs have only alleged simple negligence against defendant Ollie. Accordingly, the plaintiffs have no possibility of recovery against Ms. Ollie and the defendant has been improperly joined in the action.

The plaintiffs have also requested to amend their complaint to include Mississippi defendants Andrew Williams and Kerlin Janiver. Fed. R. Civ. Pro. 15 provides that motions to amend a complaint “shall be freely given when justice so requires.” However, when an amendment will destroy diversity jurisdiction the court must consider:(1) the extent to which the purpose of the amendment is to defeat federal jurisdiction; (2) whether the plaintiff has been dilatory in asking [*10] for an amendment; (3) whether the plaintiff will be significantly injured if amendment is not allowed; and (4) any other factors bearing on the equities. Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir.1987). The Fifth Circuit has rejected the rigid distinction between the post-removal joinder of indispensable parties under Fed. R. Civ. Pro. 19 and post-removal joinder of permissive parties under Rule 20. Rosa v. Aqualine Res., Inc., 2004 U.S. Dist. LEXIS 22130, 2004 WL 247990 *1 (N.D. Tex. 2004).

The state court complaint filed on March 16, 2006, in Bolivar County, Mississippi states: “at this time, Plaintiffs do not know the identity of John Does 1 through 5, but that said unnamed known defendants may include a person named “Johnny Murray,” and/or other agents, employees, servants or subsidiaries of La Quinta Development Partner, LP, and/or independent contractors of La Quinta Development Partners, LP.” The complaint also states: “by information and belief, the Defendants Securitas Security Services USA, Inc., (“Securitas”), and Harry J. Burnham, (“Burnham”) and a person named “Javarius” employed by Securitas, (sometimes referred to collectively herein as the [*11] “Securitas Defendants”), undertook and assumed the duties to provide security, surveillance, monitoring, and supervision for the safety and security of the guests at the La Quinta Inn.” While the plaintiffs have moved to remand, it seems unlikely that the sole purpose the plaintiffs have moved to amend their complaint is to defeat federal jurisdiction. The plaintiffs did, in fact, make allegations against unknown plaintiffs while the case was in state court. More telling, the complaint asserts allegations against an unknown “Javarius,” and the name of one of the persons they seek to add is actually Janiver.

The plaintiffs moved to amend on June 13, 2006, roughly three months after commencing this action. Three months is not an unduly dilatory amount of time to discover the names of unknown parties, particularly as discovery has not commenced in this matter.

The court must also consider whether the plaintiffs will be significantly injured if amendment is not allowed. The defendants argue that amendment is not necessary because the proposed parties were employees of Securitas at the time of Christopher’s drowning, and that they were within the scope of their employment [*12] which means that Securitas would be vicariously liable for any tortious acts committed by the proposed defendants. The plaintiffs counter by alleging that it is unknown if proposed defendants Williams and Janiver remained within the scope of employment during the time that they should have been guarding the pool area. In Hayes v. Illinois Cent. R.R., 2000 U.S. Dist. LEXIS 2405, 2000 WL 33907691 *2 (N.D. Miss. 2000), the Judge Biggers rejected the defendants’ argument that an employee was an unnecessary party since the corporation would be responsible under the doctrine of respondeat superior. The court found that the plaintiff had a right to seek recovery from the individual as well as the corporation. Id. This court also finds that the doctrine of respondeat superior does not preclude the plaintiffs from seeking recovery from the defendants individually.

As neither party has alleged any additional factors bearing on the equity of amendment, this court finds that an examination of the Hensgens factors demonstrates that amendment is proper in this instance.

Accordingly, the plaintiffs’ motion [14] to remand is GRANTED. The plaintiffs’ motion [24] to amend is also GRANTED. [*13] Defendant Ollie has been improperly joined; however, the plaintiffs are hereby granted leave to file an amended complaint naming Andrew Williams and Keith Janiver as defendants. The amended complaint must be filed within ten days of entry of this order. This case is now remanded back to the Circuit Court of Bolivar County, Mississippi.

This the 8<th> day of March, 2007.

/s/ Michael P. Mills

UNITED STATES DISTRICT JUDGE