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

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

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

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

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

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

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

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

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

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

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

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

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

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

American Airlines—-1-800-221-2255

Southwest Airlines—1-800-435-9792

Alaska Airlines

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



It is truly an honor to be recognized by this organization

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

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

Thank you.


When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.

In this case, the national organization was also sued for failing to instruct and enforce the regional organization in the rules, regulations, standards or policies. If you are going to make rules, and you say the rules must be followed you have to make sure you train in the rules and that everyone follows the rules.

If you make a rule you have to enforce it if you are in charge of making rules.
Otherwise, don’t make rules!

T.K., a minor, v. Boys & Girls Clubs of America, et. al. 2017 U.S. Dist. LEXIS 87005 

State: Illinois, United States District Court for the Central District of Illinois, Springfield Division

Plaintiff: T.K., a minor, by and through his natural Father and Next Friend, Timothy Killings, and Timothy Killings, individually

Defendant: Boys & Girls Clubs of America, Boys and Girls Club of Decatur, Inc., and Mary K. Paulin

Plaintiff Claims: negligence and willful and wanton misconduct

Defendant Defenses: Failure to state a claim upon which relief can be granted filed in a Motion to dismiss

Holding: for the plaintiff

Year: 2017

This case is a federal diversity case. That means the plaintiff(s) and the defendant(s) were legally residents of different states, and the amount claimed by the plaintiff was greater than $75,000.00. In this case, the plaintiff was from California, and the Defendant was located in Illinois.

The plaintiff was in Illinois and attending the Decatur Boys & Girls Club, which was part of the America Boys & Girls Club. America Boys & Girls Club was based in Georgia.

America Boys & Girls Club provided policies, procedures, rules, guidelines and instructions to the Decatur Boys & Girls Clubs, and all other Boys & Girls Clubs. The Boys & Girls Clubs are required to follow the operating policies, procedures, rules, guidelines, and instructions.

While attending the club, the plaintiff was taken to a local farm. Neither of the defendants had permission to transport the minor plaintiff to the farm. While there the plaintiff was riding on a trailer (probably a hay ride)that did not have guardrails, seats, seatbelts or other equipment designed from keeping people from falling off. (But then very few hay rides do.) The tractor and trailer were pulled onto a public highway with 15-20 children on it. While on the highway the plaintiff either jumped or fell off or might have been pushed
off sustaining injuries.

The farm trailer was not designed or intended to transport people, and the trailer lacked guardrails, seats, seatbelts, and other equipment that might prevent people from falling off it. Defendant Paulin pulled the trailer, with T.K. and 15 to 20 additional children riding on it, onto a public highway with a tractor defendant.

The issue that the trailer was not designed to be on a highway and did not have seats, seatbelts or other equipment to keep people from falling off was repeatedly brought up by the court.

The defendants filed a motion to dismiss, and this opinion is court’s response to that motion.

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

A motion to dismiss is a preliminary motion filed when the allegations in the complaint do not meet the minimum requirements to make a legally recognizable claim.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Plausibility means alleging factual content that allows a court to reasonably infer that the defendant is liable for the alleged misconduct. A plaintiff’s complaint must suggest a right to relief, “raising that possibility above a speculative level.” “The required level of factual specificity rises with the complexity of the claim.”

When reviewing a motion to dismiss the court must look at the plaintiff’s pleadings as true and any inference that must be drawn from the pleadings is done so in favor of the plaintiff.

To plead negligence under Illinois’s law the plaintiff must prove “…that the defendant owed plaintiff a duty, it breached that duty, and the breach proximately caused plaintiff’s injury.” In Illinois, every person owes all other persons “a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act.”

Whether this duty arises in a particular context depends on “the reasonable foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on defendants.” Id. A child’s caretaker has a duty to protect the child from harm.

It is a legal question to be decided by the court if a legal duty exists.

…the relationship between him and America Boys & Girls Club and Decatur Boys & Girls Club imposed on the two  organizations a duty of care to adequately supervise him and protect him from harm, any unreasonable risk of harm, dangerous instrumentalities, and dangerous conditions.

The plaintiffs argued the duty of care of the two organizations was breached by:

(1) negligently supervising him, (2) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him, (3) failing to warn or failing to adequately warn him of the potential for injury before putting him on the trailer, (4) failing to properly supervise the minors they placed on the trailer, and (5) failing to provide enough staff members to monitor the children they placed on the trailer.

The plaintiff’s also argued there was a greater responsibility and as such duty on the part of the America Boys & Girls Club to train the Decatur club on its rules, regulations and policies and failing to train on them was  also negligent.

T.K. further alleges that it failed to properly train Decatur Boys & Girls Club on the operating policies, procedures, rules, guidelines, and instructions of America Boys & Girls Club, and that it failed to supervise Decatur Boys & Girls Club to ensure that the operating policies, procedures, rules, guidelines, and instructions were followed.

In this case, the duty of care was created by the rules, regulations, policies and procedures created by the America Boys & Girls Clubs upon the Decatur Boys & Girls Club.

The plaintiff went on to argue, and since it was quoted by the court, accepted by the court that:

Defendant Paulin put him on the farm trailer even though Defendant Paulin did not have the requisite permission to  give him a ride on the trailer. Defendant Paulin towed the trailer, while T.K. and 15 to 20 additional children were on board, with a tractor onto a public highway. According to T.K., Defendant Paulin owed him a duty of care to protect him from any unreasonable risk of harm and breached that duty by (1) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him; (2)
failing to warn him of the potential for injury before putting him on the trailer and pulling the trailer onto a public highway; (3) failing to warn him that the trailer was dangerous and not reasonably safe given that the trailer had no railings, barriers, walls, or seats; and (4) creating a dangerous condition by placing him on the trailer and pulling it onto a public highway.

The court held this was enough to create a duty of care and proved a possible negligence claim.

Furthermore, of note was a statement that a statutory violation of a statute in Illinois does not create a negligence per se claim.

A violation of a statute or ordinance designed to protect human life or property is prima facie evidence of negligence. . . . The violation does not constitute negligence per se, however, and therefore the defendant may prevail by showing that he acted reasonably under the circumstances.”

The court then looked at the minor plaintiff’s father claims to see if those met the requirements to prove negligence in Illinois.

To state a negligence cause of action, Mr. Killings must plead enough facts to make it plausible that he was harmed as a proximate result of Defendants’ breach of a duty they owed to him.

However, the father was not able to prove his claim because it is separate and distinct from the minor’s claim. “The fact that Defendants were responsible for T.K.’s well-being on July 17, 2015, does not mean that Defendants had any duty to Mr. Killings.”

It was T.K., not Mr. Killings, who was placed on an unsafe farm trailer and pulled onto a public road. Defendants, therefore, had a duty to exercise ordinary care to prevent injury to T.K., not Mr. Killings. Further, Mr. Killings does not claim that he was physically injured as a result of Defendants’ negligence; his only claimed injury is the money he has spent and the money he will spend in the future for T.K.’s past and future medical treatment. In short, Mr. Killings has not met the pleading requirements for a negligence claim against any Defendant.

The father also pleaded a claim for loss of aid, comfort, society and companionship of his child. However, Illinois’s law does not allow for recovery of those emotional damages unless the child’s injury is a fatality.

The claim is not one for damages stemming from the child’s physical injury, but one founded on the parents’ liability for the minor’s medical expenses under the Illinois Family Expense Act.

However, the father did have a claim for the medical expenses the father paid on behalf of his minor son for the injuries he incurred.

The plaintiff also pleaded res ipsa loquitur.

Res ipsa loquitur allows “proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant.” The doctrine “is meant to bridge an evidentiary gap when an injury could not have happened but for the defendant’s negligence.” Accordingly, res ipsa lo-quitur applies only when the facts “admit of the single inference that the accident would not have happened unless the defendant had been negligent.”

Res ipsa loquitur is a claim that when an incident has occurred, the control of the instrumentality was solely within the control of the defendant.

Under Illinois law, a plaintiff bringing a negligence claim based on the doctrine of res ipsa loquitur must plead that he was injured “in an occurrence that ordinarily does not happen in the absence of negligence” and that it was caused “by an agency or instrumentality within the defendant’s exclusive control.

An example of res ipsa loquitur is a passenger in an airplane that crashes. The pilot is the defendant, and the
control of the airplane is solely with the pilot.

Indeed, the doctrine of res ipsa loquitur can be appropriate if the instrument that caused the injury was in the defendant’s exclusive control “at a time prior to the injury and there is no change in conditions or intervening act that could reasonably have caused the event resulting in the injury.

However, the allegations of the plaintiff did not meet the requirements of res ipsa loquitur in Illinois.

Plaintiff’s final allegation discussed in the opinion was one for willful and wanton misconduct on the part of the defendants. Under Illinois’s law to establish a claim for willful and wanton conduct, the plaintiff must.

…plead facts establishing the elements of a negligence claim–duty, breach, proximate causation, and harm–and “either a deliberate intention to harm or an utter indifference to or conscious disregard for the welfare of the plaintiff.

Generally, this is the same standard to prove willful and wanton conduct in most states. Once the negligence claim is proved, then the allegations only need to support the additional acts as willful and wanton.

Therefore, to state claims for willful and wanton misconduct against Defendants, T.K. need only additionally allege either intentional or reckless willful and wanton misconduct committed by Defendants.

The court defined willful and wanton conduct.

Reckless willful and wanton misconduct is conduct committed with an utter indifference of or a conscious disregard for the safety of others. To meet this standard, the defendant “must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury.

With the allegations plead, the court found sufficient information to confirm the plaintiff going forward with willful and wanton claims. Those allegations include:

Decatur Boys & Girls Club and America Boys & Girls Club placed him and 15 to 20 other minors on an unsafe farm trailer with no guardrails, sidewalls, barriers, or seats while providing inadequate supervision. T.K. further alleges that the trailer was not designed to transport people.

Putting kids on a trailer was a major issue for the court. Kids on a highway on a vehicle not created to transport people were enough to create willful and wanton conduct.

The defendant argued that the allegations that created the negligence claim were also allowed to be the same facts. No new allegations needed to be plead to support the claims for willful and wanton conduct.

Under Illinois’s law, “[t]he same acts by a defendant, if sufficiently egregious, can constitute both negligence and willful and wanton conduct.” Therefore, “one can plead the same facts in two counts, one characterizing them as negligence and the other as willful and wanton conduct, if the same facts could support both theories.

The plaintiff had pled enough facts that the court found relevant and substantial to continue with the negligence and willful and wanton claim.

So Now What?

The actual rules, regulations, procedures were not identified by the court in making its decision. However, the continuous restatement of the plaintiff’s allegations in the same order and words. However, the court specifically stated the defendants failed to follow their own rules.

If you have rules, regulations, policies, procedures, or you must abide by such you MUST follow them. There are no loop holes, exceptions or “just this one time” when dealing with rules, policies and procedures that affect safety or affect minors. If you make them, you must follow them.

If you make them, you must make sure everyone is trained on them. One of the big issues the plaintiff pleads and the court accepted was the rules made by the parent organization were not known or followed by the subsidiary organization. The parent organization when making rules is under a requirement to make sure
the rules are understood and followed according to this decision in Tennessee.

The other major issue was transporting the plaintiff away from the location where the parents thought the plaintiff would be without their permission and then transporting the plaintiff on a road without meeting the requirements of state law, seats, seat belts, etc.

When you have minors, especially minors under the age of ten, you are only acting within the realm and space permitted by the parents. The line that makes me cringe every time I hear it on the news is “If I would have known they were going to do ______________, I never would have let me kid go.” Listen and you
will realize you will hear it a lot when a minor is injured.

You need to prepare your program and your parents so that line is never spoken about you.

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

What do you think? Leave a comment.

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#AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps,
#ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw,
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#SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, trailer,
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cognizable, exclusive control, wanton, medical expenses, supervision, pulled,
negligence per se, public road, legal conclusions, pulling, seat, factual
allegations, right to relief, conscious disregard, indifference, speculative,
supervise, reckless, notice, owed, public highway, guidelines, transport, Guide
to Safe Scouting, GSS, Standards, Rules, Regulations, Policies, National
Organization, Boy Scouts of America, Boys & Girls Clubs of America, Boys
& Girls Clubs, Child Care, ACA, American Camping Association, Child Care
Facility, Licensed Child Care, Licensed Child Care Facility,


 

 


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

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

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

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

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

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

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

Defendant Defenses: Assumption of the Risk, No Duty

Holding: For the defendant

Year: 2006

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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Elliott, v. Carter, 2016 Va. LEXIS 151

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

Record No. 160224

SUPREME COURT OF VIRGINIA

October 27, 2016, Decided

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

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

DISPOSITION: Affirmed.

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

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

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

OPINION BY: S. BERNARD GOODWYN

OPINION

PRESENT: All the Justices.

OPINION BY JUSTICE S. BERNARD GOODWYN

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

Background

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

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

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

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

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

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

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

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

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

Analysis

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

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

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

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

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

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

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

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

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

Affirmed.

DISSENT BY: McCULLOUGH

DISSENT

JUSTICE McCULLOUGH, with whom JUSTICE MIMS joins, dissenting.

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

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

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


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

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

Lynn T. Santho et al., Plaintiffs-Appellants, v. Boy Scouts of America et al., Defendants-Appellees.

No. 05AP-341

COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY

168 Ohio App. 3d 27; 2006-Ohio-3656; 857 N.E.2d 1255; 2006 Ohio App. LEXIS 3606

July 18, 2006, Rendered

COUNSEL: Kemp, Schaeffer, Rowe and Lardiere Co., L.P.A., Steven D. Rowe and Darren A. McNair, for appellants.

Vorys, Sater, Seymour and Pease LLP, and Theodore P. Mattis, for appellees Boy Scouts of America, Simon Kenton Council, and Prince of Peace Lutheran Church.

Reminger & Reminger, Paul Michael LaFayette and Michael V. Valentine, for appellee Central Ohio Ice Rink, Inc./Chiller Ice Rink.

Bale, Begin & Associates, Ltd., David G. Bale and Christopher R. Cave, for appellee Margaret Bennett.

JUDGES: TRAVIS, J. BROWN and SADLER, JJ., concur.

OPINION BY: TRAVIS

OPINION

[*31] [***1258] (REGULAR CALENDAR)

TRAVIS, J.

[**P1] Lynn and Rick Santho, on behalf of their son, Jamie Santho (“appellants”), appeal from summary judgment entered by the Franklin County Court of Common Pleas on July 8, 2004 in favor of Boy Scouts of America, Simon Kenton Council, Prince of Peace Lutheran Church, and the Chiller Ice Rink (“Chiller”), and a directed verdict entered by the same court on March 2, 2005 in favor of Margaret Bennett.

[**P2] Boy Scouts of America (“BSA”) issued a charter to the Simon Kenton Council (“SKC”), which in turn issued a charter to the Prince of Peace Lutheran Church (“POPLC”) for the purpose of sponsoring Troop 210. The pack committee, which was made up of parents and organized by POPLC, supervised all [*32] everyday operations and the planning of activities of Troop 210. Jamie Santho (“Jamie”), age nine, was a Cub Scout in Troop 210. His Cub Scout Master was Fred Bigney (“Bigney”). Margaret Bennett (“Bennett”) was a den leader in the troop.

[**P3] In addition to her role as a den leader, Bennett also had significant ice-skating experience. Prior to her employment with the Chiller, Bennett was employed by the Ice Skating Institute of America as program and educational coordinator. Following that, she taught ice-skating at Ohio State University. At the time of the incident giving rise to this action, Bennett was a salaried employee of the Chiller, an ice rink located in Dublin, Ohio, and run by Central Ohio Ice Rinks, Inc. At the Chiller, Bennett served as the Skating School Director. Her duties included organizing class schedules and training instructors. On occasion, she also taught hourly lessons for a fee.

[**P4] On November 13, 1994, Bennett organized a family fun skate at the Chiller for the members and parents of Troop 210. She filled out the “Agreement for Ice Rental” and provided information and fliers to the members at their Pack meeting.

[**P5] Jamie Santho, his father, and his siblings attended the fun skate. Jamie was an avid skater, participated in hockey leagues, and took hockey lessons at the Chiller. Jamie’s father was a volunteer hockey coach at the Chiller. On the night of the event, Jamie’s father permitted Jamie to skate without his hockey helmet. Shortly after arriving, Jamie was racing with his friend, Colin Innes, from board to board. When Jamie looked over his shoulder to see where Colin was, he crashed into the boards and suffered a skull fracture and concussion. Appellants allege that Bennett had organized the relay race against the rules of the Chiller.

[**P6] Appellants filed suit against BSA, POPLC, SKC, the Chiller, and Bennett in 1997. Appellants dismissed their suit pursuant to Civ.R. 41 and re-filed on October 1, 2002, seeking recovery for claims of negligence, reckless/intentional conduct, respondeat superior, and loss of consortium. The trial court granted summary judgment to all appellees on the claim for negligence, under the doctrine of primary assumption of the risk. The trial court also granted summary judgment to BSA, SKC and POPLC for the claim of recklessness on the grounds that Bennett was not an agent of the organizations, and therefore, no liability could be imputed. [***1259] The Chiller also was granted summary judgment on plaintiffs’ recklessness claim. The trial court denied Bennett summary judgment on the recklessness claim and the issue proceeded to trial.

[**P7] The matter was tried on February 28, March 1, and March 2, 2005. At the close of arguments on March 2, the trial court granted Bennett’s motion for a directed verdict.

[**P8] Appellants timely appealed and assert four assignments of error:

[*33] I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING DEFENDANT MARGARET BENNETT A DIRECTED VERDICT AFTER THE CLOSE OF PLAINTIFFS’ CASE. PLAINTIFFS PRESENTED SUFFICIENT EVIDENCE TO PERMIT THE JURY TO CONSIDER THE ISSUE OF WHETHER DEFENDANT BENNETT’S CONDUCT WAS RECKLESS.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING SUMMARY JUDGMENT ON PLAINTIFFS’ RECKLESSNESS CLAIMS AGAINST DEFENDANTS BOY SCOUTS OF AMERICA, SIMON KENTON COUNCIL, PRINCE OF PEACE LUTHERAN CHURCH AND CENTRAL OHIO ICE RINKS, INC./THE CHILLER BECAUSE IT ERRONEOUSLY HELD THAT MARGARET BENNETT WAS NOT AN AGENT OF ANY OF THE AFOREMENTIONED DEFENDANTS, BUT ASSUMING ARGUENDO SHE WAS, THE COURT ERRONEOUSLY HELD FURTHER THAT PRINCIPALS ARE NOT VICARIOUSLY LIABILE [sic] FOR THE RECKLESS ACTS OF ITS AGENTS.

III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING SUMMARY JUDGMENT ON PLAINTIFF’S [sic] NEGLIGENCE CLAIMS AGAINST DEFENDANTS BENNETT, BOY SCOUTS OF AMERICA, SIMON KENTON COUNCIL, PRINCE OF PEACE LUTHERAN CHURCH, AND CENTRAL OHIO ICE RINKS, INC./THE CHILLER BECAUSE THE COURT ERRONEOUSLY RELIED ON GENTRY V. CRAYCRAFT (2004), 101 OHIO ST. 3D 141, 2004 OHIO 379, 802 N.E.2D 1116, AND MISAPPLIED THE DOCTRINE OF PRIMARY ASSUMPTION OF THE RISK TO THE FACTS IN THIS CASE.

IV. GENTRY V. CRAYCRAFT (2004) 101 OHIO ST.3D 141 [sic] IS UNCONSTITUTIONAL BECAUSE IT DEPRIVES CITIZENS OF THE STATE OF OHIO, AND IN THIS CASE PLAINTIFFS, RIGHTS UNDER ARTICLE I, SECTIONS 5 AND 16 OF THE OHIO CONSTITUTION.

[**P9] [HN1] Appellate review of motions for summary judgment is de novo. [HN2] The moving party bears the burden of proving that: (1) no genuine issues of material fact exist; (2) the moving party is entitled to summary judgment as a matter of law; and (3) reasonable minds can come to only one conclusion, which is adverse to the nonmoving party. Civ.R. 56. Where the evidence supports a motion for summary judgment, the nonmoving party must present specific facts beyond the pleadings to show that a genuine issue of material fact exists and therefore, the moving party is not entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 1996 Ohio 107, 662 N.E.2d 264.

[**P10] [HN3] Appellate review of directed verdicts is also de novo. [HN4] Under Civ.R. 50(A)(1), a motion for directed verdict may be made upon the opening statement of the opponent, at the close of opponent’s evidence, or at the close of all evidence. If, after construing the evidence in a light most favorable to the nonmoving party, the trial court finds that reasonable minds can come to but one conclusion, which is adverse to the nonmoving party, the trial court may direct a verdict in favor of the moving party. Civ.R. 50(A)(4). When considering the evidence, the trial court may not evaluate the weight of the evidence or the credibility of the witnesses. Only the relevancy of the testimony may be [*34] considered. Gibbs v. Village of Girard (1913), 88 Ohio St. 34, 102 N.E. 299, 11 Ohio L. Rep. 39. A directed verdict presents a question of law, not one of fact. O’Day v. Webb (1972), 29 Ohio St.2d 215, 280 N.E.2d 896. Therefore, the sole determination [***1260] for the court is whether the evidence presented is sufficient to present the case to the jury. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 430 N.E.2d 935.

[**P11] Assignments of error one and three contest the trial court’s determination on summary judgment that the doctrine of primary assumption of the risk applied to the facts of this case and its subsequent grant of a directed verdict in Bennett’s favor on the sole remaining issue of recklessness, an exception to primary assumption of the risk. Due to the interrelated nature of these two issues, we consider them first.

[**P12] In their third assignment of error, appellants object to the trial court’s application of primary assumption of the risk to this case. [HN5] Under the doctrine of primary assumption of the risk, an individual injured in the course of a recreational activity is presumed to have assumed the ordinary risks of that activity unless it can be shown that another actor acted recklessly or intentionally in causing the injury. Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 559 N.E.2d 699; Gentry v. Craycraft, 101 Ohio St.3d 141, 2004 Ohio 379, 802 N.E.2d 1116. The doctrine serves to remove liability for negligence under these circumstances. The trial court applied the three-part test for primary assumption of the risk in sporting events set forth in Gallagher v. Cleveland Browns Football Co., Inc. (1994), 93 Ohio App.3d 449, 638 N.E.2d 1082, reversed on other grounds, 74 Ohio St.3d 427, 1996 Ohio 320, 659 N.E.2d 1232. The test requires that: (1) the danger is ordinary to the game; (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.

[**P13] It is foreseeable that any time an individual, regardless of skill, steps onto ice, they risk falling or coming into contact with the barriers that set the perimeter of the skating surface. It is foreseeable that anytime an individual falls on ice, or strikes the perimeter boards, they risk injury. Therefore, every time Jamie Santho went onto the ice, either to play hockey or participate in any other activity, he assumed the risk of falling or running into the perimeter boards and injuring himself. There is no question that Jamie was participating in a recreational activity at the time he was injured. Falling is an ordinary danger of ice-skating. Colliding with the perimeter boards is an ordinary danger of ice rink skating. It was during the course of ice-skating and participating in the relay race that Jamie was injured. The appellant’s [HN6] age and ability to appreciate the danger involved is immaterial to the doctrine of primary assumption of the risk. Only the conduct of defendant is relevant to recovery. Gentry, supra.

[**P14] [*35] Appellants further argue that the trial court erred in applying the doctrine of primary assumption of the risk to the facts herein because Bennett was not a participant in the relay race. 1 They argue that case law has only applied the doctrine in circumstances where the [***1261] defendant is another participant. However, [HN7] a recreation provider ordinarily owes no duty to a participant or spectator of an active sport to eliminate the risks inherent in the sport. Gallagher, supra. Here, Bennett organized the fun skate for Pack 210, as she had on several previous occasions. That was her main project for the pack. Therefore, Bennett qualifies as a recreation provider. Bennett is relieved of liability under the doctrine of primary assumption of the risk even though she was a non-participant in the relay race. Based upon the case law and the facts of this case, we find that the trial court properly applied the doctrine of primary assumption of the risk and properly granted summary judgment in favor of defendants on appellants’ negligence claim. Appellants’ third assignment of error is not well-taken and is overruled.

1 The Santhos’ argue that negligent supervision should apply instead. [HN8] For a non-participant to be found liable in a recreational activity, it must be found that the non-participant either (1) allowed an activity to take place absent any management, or (2) allowed a participant with a known propensity for violence to engage in the activity. Rodriguez v. O.C.C.H.A. (2000), Mahoning App. No. 99 C.A. 30, 2000 Ohio App. LEXIS 4608; Kline v. OID Associates, Inc. (1992), 80 Ohio App.3d 393, 609 N.E.2d 564. Bennett managed the first race and the evidence indicates Richard Pretzloff supervised the second race. Furthermore, none of the participants exhibited violent behavior. Therefore, negligent supervision does not apply in this case.

[**P15] Under the first assignment of error, we must determine whether sufficient evidence was presented at trial to raise a jury question of whether Bennett acted recklessly when she organized the fun skate relay race. Appellants argue that the evidence presented on motion for summary judgment and the evidence presented at trial was substantially the same. Appellants state that if the trial court found a genuine issue of material fact on the issue of recklessness when ruling on the motion for summary judgment, that same evidence was sufficient to present a question for the jury on the same issue at trial. Appellants reason that the trial court could not be correct in both instances.

[**P16] [HN9] Motions for summary judgment and for directed verdict address the same issue, albeit at different times during the process of litigation. Whether in summary judgment proceedings or during trial, the ultimate issue under either Civ.R. 56 or 50 is whether the evidence is sufficient to present an issue for determination by the trier of fact. Summary judgment raises this question prior to trial; directed verdict raises the question during trial. A court does not consider the weight of the evidence or credibility of the witnesses in ruling on either a motion for summary judgment under Civ.R. 56, or in ruling on a motion for directed verdict under Civ.R. 50. Turner v. Turner (1993), 67 Ohio St.3d 337, [*36] 1993 Ohio 176, 617 N.E.2d 1123; Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 423 N.E.2d 467. 2 The question is whether there is sufficient evidence to create a genuine issue for a jury to decide.

2 Appellants point out that, at trial, during discussions of the court and counsel on the question of directing a verdict, the court commented on the credibility of the testimony of a witness and noted reactions of the faces of the jurors during testimony. However, when the comments are viewed in the context of the discussion between court and counsel, we are satisfied that the comments were not a factor in the determination to grant a directed verdict.

[**P17] Where a motion for summary judgment is denied because the evidence demonstrates that a jury issue exists, and that same evidence is later presented at trial, logically, it would appear that the same result should obtain and a motion for directed verdict should be overruled. 3 However, the result of the first assignment of error is not dictated by a pre-trial decision on summary judgment or by whether the same or additional [***1262] evidence was available at trial. Instead, the ultimate issue presented by the first assignment of error is whether the trial court was correct in granting a directed verdict at the close of appellants’ case. As discussed from the evidence presented at trial, we find that reasonable minds could come to but one conclusion upon the evidence and that conclusion is that Bennett did not act recklessly during the fun skate relay race.

3 Compare Dupler v. Mansfield Journal Co., Inc. (1980), 64 Ohio St. 2d 116, at 126, 413 N.E.2d 1187, fn. 8, Brown, J., Concurring. “The same quantum of evidence can require that a motion for summary judgment be denied under Civ.R. 56(C) because there exists ‘a genuine issue as to * * * (a) material fact,’ and that a motion for directed verdict under Civ.R. 50(A)(4) be granted because ‘reasonable minds could come to but one conclusion upon the evidence.’ ”

[**P18] Appellants’ claim that Bennett acted recklessly arises from the relay race itself and what appellants feel were the violation of a posted rule that prohibited racing. Based on the evidence presented in the proceedings for summary judgment, the trial court determined that genuine issues of material fact existed as to whether Bennett was reckless in organizing the relay race and in permitting Jamie to participate without a helmet. 4 The trial court determined that there was a genuine issue of whether Bennett acted recklessly based primarily upon two factors; the sign at the ice rink that prohibited racing and the lack of helmets for the participants.

4 While the evidence on whether Bennett organized the relay race was in conflict, we must construe that evidence in the light most favorable to appellants and therefore assume that Bennett did organize the race.

[**P19] [HN10] Ohio has adopted the definition of recklessness contained in the Restatement of the Law 2d, Torts (1965), Section 500 . Marchetti, 96, at fn. 2: [*37]

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

Furthermore, the Restatement notes that [HN11] simply violating a statute or rule is not enough to constitute a reckless disregard for safety. The violation of the rule must (1) be intentional; and (2) be recognized as resulting in a significantly higher risk that serious harm will occur. Id. at Section 500(e). A plaintiff cannot recover from any injuries that stemmed from “conduct that is a foreseeable, customary part” of the activity in which the plaintiff was injured. Thompson v. McNeill (1990), 53 Ohio St.3d 102, 104, 559 N.E.2d 705.

[**P20] Turning to the facts of this case, the question presented is whether Bennett was reckless in organizing the relay race in which Jamie was injured. More specifically, did Jaime’s injury stem from conduct-the relay race-that was a foreseeable part of the activity? We have already determined that Jamie assumed the risk of falling or coming into contact with the perimeter boards and injuring himself when he began skating and again when he voluntarily took part in the relay race. To be considered reckless, Bennett’s conduct in organizing the fun skate relay race had to create an unreasonable risk of physical harm to another; a risk substantially greater than that which is necessary to make that conduct negligent.

[**P21] From trial testimony and evidence, we know that there is a sign posted in the Chiller that prohibits racing. Warren Weber, the building supervisor at the time of Jamie’s accident, stated that the “no racing” rule applied to both public and private skating events. However, Weber also testified that the rule was relaxed during private parties. He further stated that even if the private party did not have [***1263] rink guards, “[w]e would never knowingly allow an unsafe condition. I think our employees knew what unsafe and safe were or were not and would not allow an unsafe condition to go on.” (Tr. at 79.) Weber said that if he saw individuals racing from board to board, he would take into account the ability of the skaters in determining whether the activity was safe enough to continue. Weber testified that, at the time of the fun skate, there were other people working at the Chiller, even though they were not working as rink guards for the fun skate. There was no evidence that anyone on duty at the time of the accident thought the activities were unsafe. Indeed, Richard Pretzloff, a Chiller employee and father of one of the Cub Scouts attending the fun skate was present during the relay races. Pretzloff testified that he allowed his own son to participate in the relay race.

[**P22] [*38] Additionally, it is undisputed that Bennett took certain precautions when she initiated the relay race. Bennett organized the activity and divided up the ice because the more skilled skaters were being disruptive and posed a threat of harm to parents and children who were not as proficient at ice-skating. Furthermore, only those of certain skill levels were allowed to participate in the races. Bennett set the rules and supervised the first race. According to her testimony, there was no evidence of dangerous activity. After the first race, she left the immediate area and left Mr. Pretzloff in charge of the second race. Even if events in the second race increased the risk of harm, there is no evidence that Bennett was aware of them, or that she allowed the races to continue despite some increased risk to the participants. In sum, we cannot say that Bennett’s conduct in organizing the relay race was in reckless disregard of the safety of another.

[**P23] Appellants further argue that Bennett was reckless in not requiring Jamie to wear a helmet. No evidence was submitted to support this claim. Jamie’s father testified that he allowed his son to participate in the recreational skate without a helmet. Other testimony presented at trial showed that no fun skate participants were wearing helmets and that helmets are typically worn only while playing hockey. Finally, there was evidence that requiring helmets is not an industry standard.

[**P24] We find that, as a matter of law, the evidence does not support a claim of recklessness regardless of how generously it may be viewed in favor of appellants. Therefore, the trial court did not err in granting a directed verdict for Bennett on the issue of recklessness. Appellants’ first assignment of error is not well-taken and is overruled.

[**P25] Under their second assignment of error, appellants contest the trial court’s determination on summary judgment that BSA, SKC, POPLC, and the Chiller were not vicariously liable for Bennett’s reckless acts because she was not an agent of those organizations. Because we have found as a matter of law that Bennett did not act recklessly, this argument has been rendered moot.

[**P26] Even if the evidence supported a finding that Bennett was reckless, under the facts of this case, BSA, SKC and POPLC were not vicariously liable because the evidence supports the trial court’s determination that Bennett was not an agent of those organizations. Appellants rely on Mayfield v. Boy Scouts of America (1994), 95 Ohio App.3d 655, 643 N.E.2d 565, a case involving injuries to a scout while on a camping trip under the direction of a Boy Scout volunteer. In Mayfield, the campout was at a facility controlled and operated by the Boy Scouts [***1264] and located on land owned by the Boy Scouts. The Boy Scouts required all volunteers who were in charge of campouts to purchase and wear official Boy Scout uniforms, accessories and supplies and to follow Boy Scouts [*39] policies, procedures, rules and regulations. Additionally, in Mayfield, there was evidence that the Boy Scouts retained a degree of direction and control over the volunteer who supervised the campout and Boy Scout insurance policies covered the acts of the volunteer. Finally, in that case, there was evidence that the plaintiffs relied upon the affirmative acts and representations of the Boy Scouts, which led the plaintiffs to believe that the volunteer was acting as an agent of the Boy Scouts.

[**P27] In contrast, there is no evidence to suggest that Bennett was acting as the agent of the BSA, SKC or POPLC. Bennett organized the family fun skate outside the framework of the BSA organization. The fun skate was held at a facility completely independent of the BSA. There is no evidence that the BSA, SKC or POPLC were aware of or had any control over the conduct of either Bennett or the fun skate. There is no evidence that Bennett acted as an agent of the Boy Scouts or any of the other organizations. We find Mayfield to be distinguishable on it facts.

[**P28] Appellants also argue that the Chiller is liable for Bennett’s actions under the doctrine of respondeat superior. Appellants contend that, because Bennett was an employee of the Chiller, the Chiller was liable for her actions committed during the course and scope of her employment with the Chiller. However, at the time of the accident, Bennett was not being paid by the Chiller. [HN12] Actions within the “course of employment” are, by definition:

Events that occur or circumstances that exist as a part of one’s employment; esp., the time during which an employee furthers an employer’s goals through employer-mandated directives.

Black’s Law Dictionary (7 Ed.1999) 356. Bennett’s employment duties as a director of ice-skating at the Chiller consisted of training instructors and scheduling. She also gave private skating lessons. However, all of these activities were directed by the Chiller, by whom she was paid. At the time of the fun skate, Bennett was not being paid by the Chiller. She was not acting as a rink guard. According to the evidence presented by the trial court, rink guards wore distinctive clothing that identified them in that capacity. There is no evidence that Bennett was acting as, or held herself out as a rink guard for the Chiller. Instead, the evidence supports only that Bennett was acting as a den mother of Pack 210 and organized the fun skate for Pack 210. She was there as a volunteer for Pack 210 and as a parent. Therefore, the trial court did not err in finding that there was insufficient evidence to show that Bennett was an agent of the Chiller and acting on behalf of the Chiller at the time Jamie was injured. 5 Appellants’ second assignment of error is not well-taken and is overruled.

5 Weber indicated that anywhere from four to ten people could have been working during the fun skate. The fun skate was not held as an after hours event. If it were, there would be some argument as to whether Bennett was an agent of the Chiller by virtue of being the only employee of the Chiller in the building, aside from Richard Pretzloff. However, this was not the case.

[**P29] [*40] In their fourth assignment of error, appellants contend that Gentry is a violation of Sections 5 and 16, Article I, Ohio Constitution. Appellants assert that, by relying on Gentry, the trial court violated their right [***1265] to trial by jury and a remedy by due course of law. Gentry is a decision of the Supreme Court of Ohio. [HN13] It is not within our authority to declare that a determination of a superior court is invalid.

[**P30] Furthermore, appellants failed to raise this issue at the trial court. Therefore, the issue has been waived for purposes of appeal. “It is a general rule that [HN14] an appellate court will not consider any error which counsel for a party complaining of the trial court’s judgment could have called but did not call to the trial court’s attention at a time when such error could have been avoided or corrected by the trial court.” State v. Childs (1968), 14 Ohio St.2d 56, 61, 236 N.E.2d 545 citing State v. Glaros (1960), 170 Ohio St. 471, 166 N.E.2d 379, paragraph one of syllabus. Appellants’ fourth assignment of error is overruled.

[**P31] Based upon the foregoing, appellants’ four assignments of error are overruled and the judgment of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed.

BROWN and SADLER, JJ., concur.


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

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

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

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

Plaintiff: Davide E. Gomes

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

Plaintiff Claims: negligent supervision

Defendant Defenses: assumption of the risk, no duty

Holding: for the defendants

Year: 2016

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

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

The plaintiff does not remember the incidence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The court found issues with this.

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

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

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

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

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

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

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

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

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

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

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

Quoting another case the court stated:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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

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