Way to go Primal Wear! and the Denver Area Council of the BSA!
Posted: June 21, 2012 Filed under: Cycling | Tags: Badge Program, Boy Scout, Boy Scouts of America, BSA, Cycling, Cycling Merit Badge, Denver Area Council, merit badges, Primal Wear, Recreation, Scout, Scout Troop Leave a commentDenver Cycling Wear Manufacturer Primal Wear is sponsoring a BSA Cycling Merit Badge Clinic
Cycling apparel maker teams up with Boy Scouts for Merit Badge and Jersey
Primal Wear has teamed up with the Boy Scouts of America, Denver Area Council for a merit badge clinic. The clinic will take place over 16 weeks and has been limited to 20 scouts. Courses and rides will be bi-weekly and will complete individual requirements of the merit badge per session. “It’s great being able to provide a cycling program for the Scouts with Primal, one of the recognized leaders in the cycling community.” Said Dave Whitner, Denver Area Council Program Director.
In addition to the cycling merit badge program, Primal has produced a cycling jersey that is available for purchase online at http://rec-law.us/M5JzaI. The jersey is a sport cut raglan design featuring the BSA logo. The proceeds from the purchase of the jersey go to benefit the Denver Area Council.
For Information on the 16 Week Program go HERE.
Merit badge (Boy Scouts of America) (Photo credit: Wikipedia)
If you want to purchase the Denver Area Council Cycling Jersey with 15% of the proceeds go HERE. It is a beautiful Jersey! Order a Jersey, look good when you ride and support Primal Wear and the Denver Area Council of the Boy Scouts of America.
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South Carolina Supreme Court writes a clear decision on Assumption of the Risk for sporting activities.
Posted: December 12, 2011 Filed under: Assumption of the Risk | Tags: Assumption of risk, assumption of the risk, Boy Scouts of America, BSA, Cub Scout, Duty of care, Recklessness (law), softball, South Carolina, South Carolina Supreme Court 2 CommentsCole v. Boy Scouts of America, 2011 S.C. LEXIS 383
Defendants not liable because the plaintiff assumed the risk of his injuries when playing softball.
The plaintiff was on a Cub Scout outing with his son and their Cub Scout Pack. As part of the outing the fathers and sons were playing softball. During the play, things got a little intense, and the Unit Leader stepped in to cool things down. The plaintiff volunteered to be the catcher because he was afraid one of the boys would be hit by a bat or ball.
The defendant Wagner was on second base when the batter hit a long ball. Wagner was running home when the plaintiff Cole stepped in front of home plate. The resulting collision injured both parties.
The plaintiff sued Wagner the runner, the Boy Scouts of America, Indian Waters Council of the BSA, Cub Scout Pack 48, and Faith Presbyterian Church. The plaintiff claimed losses for personal injury, loss of consortium, and negligent infliction of emotional distress.
The plaintiff settled with all the other defendants. The defendant Wagner filed a motion for summary judgment, which was granted and the case was appealed to the South Carolina Supreme Court.
So? Summary of the case
The court first reviewed the legal definition of Assumption of the Risk in South Carolina.
Primary implied assumption of risk arises when the plaintiff impliedly assumes those risks that are inherent in a particular activity.”
The doctrine of primary implied assumption of risk “goes to the initial determination of whether the defendant’s legal duty encompasses the risk encountered by the plaintiff.” To establish a claim for negligence, a plaintiff must first show that the defendant owed a duty of care to the plaintiff.
The plaintiff assumed the risk of his injuries when he decided to play softball. It did not matter if the game was organized or not, supervised or not, the playing of softball a player assumes the risks of the sport. Nor does it matter if the sport is amateur or professional.
The court also found that softball was a contact sport that increased the risks of the sport and the level of risk any player must assume.
Nor does violating a rule of the game change the risk assumed. As the court stated:
If no one ever violated the rules, then there would be no need for penalty shots in basketball, a penalty box in hockey, or flags on the field in football. Collisions at home plate are common, mainly because catchers often attempt to keep a runner from scoring by blocking the plate with their body.
The plaintiff also argued the defendant was reckless. However, the court did not find any recklessness in the facts or pleadings and found the level of activity argued by the plaintiff did not rise to the level of recklessness necessary to create liability. The court found recklessness or willfulness is conduct “so grossly negligent that a person of ordinary reason and prudence would then have been conscious of the probability of resulting injury.”
Recklessness implies the doing of a negligent act knowingly . . . [or] the conscious failure to exercise due care.” “Due care” can be defined as “that degree of care which a person of ordinary prudence and reason would exercise under the same circumstances.”
The actions of the defendant were within the scope of risks to be assumed in softball.
The likelihood of someone running too fast to stop or playing more aggressively than anticipated is part of the competitive atmosphere of athletics.” Almost all contact sports, especially ones that require protective gear as part of their equipment, involve conduct that a reasonably prudent person would recognize may result in injury.
Accordingly, a player assumes the risk of ordinary recklessness committed within the course of the game.
The court differentiated intentional conduct that was so reckless as to be outside of the scope of the game. The players have a reciprocal duty to not intentionally injure each other. did not allege that the defendant’s conduct was intentional.
So Now What?
This is a great decision for youth volunteers and coaches as well as anyone who engages in sports in South Carolina. You can do so without fear of being sued for playing the game.
The issue is to make sure that everyone plays the game within the general rules of the sport, does not intentional injure someone and that everyone has fun.
Backyards are now safe for games again!
What do you think? Leave a comment.
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Why Youth Protection Training is valuable.
Posted: February 9, 2011 Filed under: Uncategorized | Tags: Adventure travel, Boy Scout, Boy Scouts of America, E-learning, Facebook, JimMoss, Outdoor recreation, Ropes course Leave a commentIt protects youth. It may also keep you from losing your job and your lifestyle.
People who volunteer with the Boy Scouts of Americaor other youth organizations are now required to take classes in how
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to deal with youth and avoid dangerous situations. The classes for the BSA are called Youth Protection Training. The training is designed to keep youth from being molested by adults and to protect the privacy of the youth in the organization. This training is important for the youth and for the organization.
Many times I see adults resisting this training because they feel it does not apply to them. It is not necessary or is a waste of time. They don’t molest youth, why take the training.
However, this training can be extremely critical for an adult.
By following the programs an adult is never put in a position where he can be accused of doing something wrong!
Many years ago I was asked to investigate different claims against the Boy Scouts by my local BSA council. Most of the investigation was simply following up to fill paperwork for the council and see if the council might be at risk.
However, once it was not so easy. A man had been accused by a female youth member of sexual improprieties. After six months of work, I knew that she was lying. There was no time and place that the incident could have occurred. The accused was with other members of the unit at all times. The youth had a motive. She hated the leader.
Not so bad you think. Not really. The accused had a very high security clearance for his job. He lost his clearance and was not able to participate at work. He said the six months might set him back permanently in his employment.
An innocent man was wrongly accused and nearly lost everything.
Youth Protection Training protects youth and adults!
If you are interested in the BSA youth protection training you can get it here: BSA Online Learning Center. If you do not have a BSA account you will have to create one here before you can start the training.
What do you think? Leave a comment.
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Berlin v. Nassau County Council, Boy Scouts of America, 229 A.D.2d 414, 645 N.Y.S.2d 90
Posted: October 25, 2010 Filed under: Legal Case, Minors, Youth, Children, New York, Summer Camp, Youth Camps | Tags: Adult Volunteer, Boy Scout, Boy Scouts of America, Brian Thomson, Florida, Nassau County New York, New York, New York City, Parental Responsibility; Youth Program, United States, Volunteer Leave a commentTo Read an Analysis of this decision see: Adult volunteer responsibility ends when the minor is delivered back to his parents.
Rita Berlin et al., Respondents,
vs.
Nassau County Council, Boy Scouts of America et al., Defendants, and Hugh Brickley, Appellant.
95-05684
Supreme Court Of New York, Appellate Division, Second Department
229 A.D.2d 414, 645 N.Y.S.2d 90, 1996 N.Y. App. Div. Decision
July 8, 1996, Decided
Devitt, Spellman, Barrett, Callahan, Leyden & Kenny, LLP., Smithtown, N.Y. (L. Kevin Sheridan of counsel), for appellant. Hershman & Leicher, P.C., New York, N.Y. (Harold M. Hershman of counsel), for respondents.
Pizzuto, J. P., Santucci, Altman and Hart, JJ., concur.
{*414} Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the complaint and cross claims insofar as asserted against the appellant are dismissed, and the action against the remaining defendants is severed.
Brian Thomson acquired a slingshot from a store in Florida while on a trip with his Boy Scout troop. The appellant Hugh Brickley and the defendants Kenneth Bistyga and Philip Lembo were the chaperones for the trip. Brickley immediately confiscated the slingshot and did not return it to Brian until after the trip when he left Brian with his parents in Delaware. Approximately one week later, after the Thomson family had returned to New York, the infant plaintiff Daniel Berlin was injured when he and Brian were playing with the slingshot in Daniel’s backyard.
Any duty on the part of Brickley to supervise or control the activities of Brian terminated when he returned the child to {*415} his parents‘ custody (see, Purdy v Public Adm’r of County of Westchester, 72 N.Y.2d 1, 8-9; see also, Pratt v Robinson, 39 N.Y.2d 554, 560; Griffith v City of New York, 123 A.D.2d 830, 832). Even assuming that Brickley was negligent in returning the slingshot to Brian, the alleged negligent supervision by Brian‘s parents, who were fully aware that he possessed and was using the slingshot, was a superseding intervening cause which attenuated any negligence on the part of Brickley from the ultimate injury to Daniel (see, Nolechek v Gesuale, 46 N.Y.2d 332, 338-339; Elardo v Town of Oyster Bay, 176 A.D.2d 912, 914). Consequently, Brickley’s motion for summary judgment should have been granted.
Pizzuto, J. P., Santucci, Altman and Hart, JJ., concur.
Adult volunteer responsibility ends when the minor is delivered back to his parents.
Posted: October 25, 2010 Filed under: Minors, Youth, Children, New York, Summer Camp, Youth Camps | Tags: Boy Scout, Boy Scouts of America, BSA, Parental Responsibility, Scout Troop, Scouting, Slingshot, Trauma, Volunteer, Volunteer Responsibility, Youth, Youth Trip Leave a commentThank heavens!
Berlin v. Nassau County Council, Boy Scouts of America, 229 A.D.2d 414, 645 N.Y.S.2d 90
A youth was on a trip with a Scout troop which is a program of the Boy Scouts of America (BSA). Sometime on the trip, the minor bought a slingshot. The slingshot was confiscated by a volunteer leader on the trip. At the end of the trip, the slingshot was given to the parents of the minor.
Later the minor was playing with the slingshot with another youth, and the other youth was injured by the slingshot. Either the minor had gotten the slingshot somehow or the parents had given the slingshot back to the minor, although this was not specifically stated in the opinion.
The parents of the minor injured by the slingshot, the plaintiffs, sued the volunteer adult leaders of the trip for the minor’s injuries.
The court in a succinct and short decision held the adult volunteers were not liable for the minor’s injuries. The basis for the decision was the action of the volunteer in giving the minor back to the parents was a superseding intervening act, which stops the claim.
A superseding act, eliminates the relationship between the damages which caused the injury and the duty owed. That means negligence cannot be proven. The damages are not proximate to the duty owed. Negligence has four parts, all which must be proven:
- A duty
- Breach of the duty
- Injury
- Damages proximately caused by the breach of duty.
The court’s decision says the fourth step cannot be proven because of the superseding act. The parents taking control of their child was an intervening act which the court said did not tie the duty and the damages to together legally. Stated another way, there was no relationship between the act of the volunteer and the injury received by the minor.
The plaintiffs seem to argue that the adult volunteer should not have given the slingshot back to the parents. However, the slingshot was a possession, a piece of property owned by the minor and as such, his parents. The slingshot was given back to the owners as required by the law.
So?
The relationship between a parent and a volunteer who is spending his or her time with the child is tenuous. As a volunteer you must be clear what your responsibilities are and are not going to be, as well as when that responsibility ends. It does not need to be so formal. It can simply be in the trip information that the kids have to be at the church by 7:00 PM and parents must pick their kids up Sunday at 2:00 PM at the church.
Most times, volunteers worry about injuries to the minor as a liability issue. There are other issues that can come up that you should be prepared to deal with.
Search and Rescue costs if a minor is lost can be substantial. (See No Charge for Rescue). Damages to property or injury to other minors can create liability for the adult volunteer responsible. A forest fire started by a minor can be costly. Even though most state courts will not allow a parent to release the claims of a minor for injuries, courts will allow releases or contracts where the parent agrees to pay for other claims the minor may create.
You can inform the parent and make sure they understand (meaning a written document) that they are responsible for any damages the minor may create for a reason other than injuries to themselves. I would include damages for the minor’s injuries on a different form. You do not want the court to throughout one release for the minor’s injuries when what you needed was protection for the damages done for the minors.
 |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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This is how a standard in the industry changes
Posted: December 18, 2008 Filed under: First Aid | Tags: AED, Automated external defibrillator, automatic extenal defibrullator, Boy Scouts of America, first aid, RecreationLaw Facebook, Standard of Care, Youth Camp Leave a commentIt moves up because the best get better.
Many people believe that the standards of an industry change three basic ways.
#985 Airport not in Japan (Photo credit: Nemo's great uncle)
1.) The entire industry gets better.
2.) The bottom, or worst part of the industry gets better; or
3.) Written standards are created that makes the industry get better.
All three are incorrect. (The third belief serves the opposite effect and usually promotes lawsuits.)
Standards change when the best get better and move the standard in the industry upward. It was recently reported that the Boy Scouts of America purchased AED’s for all of its offices and camps. That is an example of the standard changing for camps. It may not affect the youth the camps are designed and run for, however it will affect the adults at the camp.
Has this changed the standard of care for adults and visitors at camps?
In this case we have the largest promoter of camping in the US with 4 million members and more than 300 offices and close to 400 camps putting AED’s in their camps. This is a major move on the part of the industry. A significant, as measured by numbers or percentages of the industry now has AED’s at their camps.
If other youth camps, either based on this, or on their own start installing AED’s as their camps the standard in the industry is shifting towards or requiring having AED’s in camps.
The standard changed.
What do you think? Leave a comment.
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BSA develops successful defense strategy: Train your attorneys
Posted: April 22, 2008 Filed under: Insurance, Risk Management | Tags: Boy Scouts of America, BSA, defense, Law, Scout Leave a commentThe Boy Scouts of Americawent from a poor win record to almost a perfect record by organizing and training their attorneys. Business Insurance
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reported in an article Risk Manager of the Year, published April 24, 2006 that the BSA’s risk manager had organized their defense counsel to make these dramatic changes. In doing so the Risk Manager, Debra Griffith, became the Manager of the Year for her success.
The first approach was to create a unified defense strategy. One law firm was hired to coordinate all lawsuits. This took the claims out of the hand of the insurance company who hired good counsel but never provided additional support for the defense attorneys. Information and successfully strategies where then routed to all attorneys handling cases providing solid ideas and information.
A second approach was to make sure all interrogatories where reviewed by the BSA defense team. This made sure that all interrogatories were answered correctly and the same way.
If you did not know, the plaintiff’s bar has been filing documents for years so answers to interrogatories form another case can be searched to find inconsistencies.
The third idea, and to a large extent the most controversial was a unified training program of all defense counsel…..at a Boy Scout Camp. This allows the defense counsel to get a real feel for the BSA and how the program works. These training programs encourage information and idea sharing both at the conference and when the attorneys go back to home.
It is this last idea that I find so exciting and valuable. From studying motions and briefs and talking to other attorneys in cases the only difference between winning and losing is not the facts of the case but how well the attorneys representing the defendant understand what the defendant was trying to accomplish and how. It is one thing to understand the problems when someone is injured on a ropes course. It is another when the defense team understands the physics of the activity as well as the goals of the participants in the activity.
Another way of looking at this is horseback or equine suits. Falling off a horse produces the same type of defenses: release, equine law and assumption of the risk. However the risks can be explained in a much better way when the plaintiff was part of a weeklong camp program versus someone who rented a horse for a day. The education and care that a camp provides is much different and creates a very different atmosphere from a trail ride offered out the back door of a conference center. Knowing why people are riding the horse can be important in defending a case as knowing the legal issues.
Reading between the lines is to not leave this solely to your insurance company. They will not hire the best law firm, they will not assist in training or getting the firm up to speed, they rarely understand your program and they won’t support you if the dollars look better to sette.
My own experience supports this idea. In the outdoor recreation industry we win cases when the defense firm understands what they are defending rather than throwing the case in their pot and following the same old strategy. Outdoor recreation is different from an auto accident, a fuel spill and a breach of contract. The participants and the outfitters/facilitators/guides are working together to accomplish goals. These facts combined with an attorney who understands the goals of the program, the program and the defenses create a win.
Assumption of the Risk
Posted: February 11, 2008 Filed under: Assumption of the Risk | Tags: Assumption of risk, Boy Scouts of America, education, Insurance, Law, Lawsuit, Risk Management, Summary judgment Leave a commentAssumption of the risk is defined as someone knowing and understanding the risks of the activity that injured them.
Every state has slightly different definitions of assumption of risk. In general, prior to the guest becoming injured, the guest must comprehend the risks of the activity. The comprehension must include not only the knowledge of the danger, but most states require the plaintiff know extent of the possible injury.
If this knowledge is confirmed in writing then assumption of the risk is called express assumption of the risk. If the knowledge is not written down, then assumption of the risk it is called implied assumption of the risk. In many states implied assumption of the risk has been merged with contributory negligence and goes to the percentage of fault of the plaintiff.
Assumption of the Risk in most states is no longer available as a pure defense to a claim. The legal defense of assumption of the risk has been merged into contributory negligence. With contributory negligence, the jury decides how much each person in the lawsuit was a fault. If the Plaintiff was 50% or more at fault (51% in some states) then the Plaintiff cannot recover from the Defendant. Assumption of the risk is one of the factors that contribute to a plaintiff being at fault in an accident.
However that is changing in many states as courts are tired of dealing with claims in sports and recreation where the injured party should not recover for their actions.
Assumption of the risk is a valuable a defense. It can be used to show a jury that the plaintiff was solely responsible for his or her injuries. Assumption of the risk is also the only defense available when a minor sues in many states.
However, the legal issues aside, 28 years of reviewing claims and lawsuits have shown that assumption of the risk great value besides use as a defense. Plaintiffs, who understand the risks, do not get injured. More importantly, outfitters and guides who take the time to get to know their guests, answer their questions and fully inform their guest of the risks are not sued.
There are several sub issues of these ideas that need to be explored. From the guests perspective the more the guest knows they least likely that they will be injured. A guest who really understands what is going to happen is better prepared. The guest understands the activity is not an amusement park, that there are millions of things that are out of anyone’s control. Those guests will enjoy the experience, be less afraid and will deal with any issues with better results.
Guest’s who understand the risks also are more likely to ask questions before leaping. Is that snake poisonous, is that ice solid, can I boulder over here? Answering these questions might prevent guest injuries. An outfitter who goes forward informing and educating a guest is usually also one who encourages questions. Most people if they feel comfortable will ask questions, especially, if the conversation between guest and guide is encouraged rather than strained.
Outfitters and Guides who make it part of the program to educate their guests understand that educated guests are the best guests. Not only do educated guests remain healthy, they have more fun. Nothing is worse then giving up your warm clothing to a shivering guest when they should have brought their own, but did not know to do so. That may seem like a far fetched statement, but in the whitewater rafting industry, every guide carries extra clothing because guests are rarely fully informed.
Another important issue that arises when guests are educated is they develop a closer relationship with the guides and the outfitter. As such, there is usually little anger or emotion accompanying an injury. Anger or some other emotion is the basis for the majority of lawsuits and if you can eliminate this emotion you can reduce your chances of being sued. Educated injured guests usually understand how they were injured, or understand that accidents happen that do not have someone to blame for the injury.
Finally, educated guests appreciate the risk. They understand what the outfitter and guide are doing to make the activity fun and a success as well as to keep the guests safe. They understand the energy it takes to keep a group organized and together. Educated guests are the ones you like to work for.
One major problem of assumption of the risk is quickly once we become enamored with an activity; the risks fade as a danger and become mundane. Those risks that a new guest may see as terrifying, we lightly skip over every day. Watch your guest the next time you casually stroll the to an ice climb as they contemplate, with an engaged if not terrifying look on their mind, the crampons, ice axes and the mixed terrain slope. Those risks that we now ignore are real to your guests.
This acceptance of risk can create dire consequences for the guide and outfitter. Most times we fail to identify the mundane to your guests and consequently, leave our guests in a precarious position. Yet it is the mundane risks that generally lead to the small activity ending injuries. Slightly injured guests either leave or end their activity or continue placing everyone at a heightened risk.
Watch a guest carefully negotiate the cliff edge as you walk around it or standing on a slightly sloping ice covered rock. The greatest risk to everyone within earshot is possibly the flying ice axe as the guest, feet firmly planted tries to remain upright.
Most of the time, we work heard at informing the guests of the hidden risks. Avalanches, rock fall, and hypothermia are always covered in great detail. We miss those things we have come to accept as the day to day. Like driving to and from the activity, we talk about the risks of the activity in the van, ignoring the fact we are traveling at 65 miles per hour in the deadliest contraption invented by man.
Employee or contractor guides also accept risks as mundane that are still dangerous to them. This mundane acceptance becomes a worker’s compensation injury if awareness is not kept at the forefront of both guest and guide’s awareness.
Does this mean you need a continuous monologue of warnings coming from everyone’s mouth? No, it does mean that you need to have a well thought out education program. Inform the guest of what they need to know to evaluate the activity when they are exploring the idea of going. What the guests need to know when preparing for the activity. What the guests need to know when they are engaging in the activity. More importantly, paying attention to the guests looking for those expressions or voice intonations that indicate more information is needed.
For more articles on Assumption of the Risk see:
New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.
Keep your guests educated, healthy and happy and you will probably stay out of court.
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