Statements made to keep a sold trip going come back to haunt defendant after whitewater rafting death.

Never forget, Marketing makes promises risk management has to pay for. Statement made about the water level dropping by the time a certain rapid was to be reached at issue in litigation but allows the plaintiff to add claims for punitive damages.

The Estate of Joseph R. Kane, v. Epley’s Inc., 2017 U.S. Dist. LEXIS 48179

State: Idaho, United States District Court for the District of Idaho

Plaintiff: The Estate of Joseph R. Kane, deceased; Stacie Kane, individually, and as guardian of Joseph P. Kane; and Thomas Kane, individually,

Defendant: Epley’s Inc.

Plaintiff Claims: Motion to add punitive damages to the complaint

Defendant Defenses: Evidence does not support the motion

Holding: Plaintiff’s motions were granted

Year: 2017

This case concerns statements made prior to a Whitewater rafting trip in Idaho on the Lower Salmon River. A group of Boy Scouts and their adult volunteers booked this trip with the defendant. The majority of the Boy Scouts on the trip did not have any Whitewater experience.

The deceased was ejected from the raft in this section of the lower Salmon River known the slide wrap. Idaho has an outfitters and guide’s statute that says an outfitter is liable if they breach the standard of care for their industry.

Through this action, Plaintiffs (to include the estate of Mr. Kane, his wife Stacie Kane, and sons Thomas and Joseph P. Kane) claim that Epley’s conduct — in particular, its decision to run the Slide Rapid at flows above 23,000 cubic feet per second (“cfs”) — breached the standard of care applicable to outfitters and guides under chapter 12, Title 6, Idaho Code and that said breach was a direct and proximate result of Mr. Kane’s death.

The issue for the plaintiffs when they arrived at the defendant’s office was the volume of water flowing on the river. It is slightly confusing, but it seems the Bureau of Land Management or the outfitting association on the river had set a cutoff of 23,000 CFS as the maximum level, the river could be rafted. There was discussion at the time Boy Scouts arrived as to what the actual river flow was and what the flow would be in a few days when the group reached the big rapid.

The plaintiffs argued to the appellate court that the defendant intentionally misrepresented the flow of the river and whether not the flow would go up or down. This misrepresentation made by the defendant was the basis for the plaintiff’s motion to amend their complaint and add a claim requesting punitive damages.

According to Plaintiffs, Epley’s not only ignored and misrepresented to the group the extreme risks presented by the water levels forecasted to be encountered at Slide Rapid on June 27, 2014 (thus permitting the trip’s June 24, 2014 launch in the first instance), its later decision to actually continue through Slide Rapid on June 27, 2014 at flows in excess of 23,500 cfs represented an extreme deviation from industry standards.

The arguments made by the plaintiffs are that the manager for the defendant misled them on the river volume and what the volume of the river would be on the date when the group encountered slide wrap. The plaintiffs also argued that the defendants had an opportunity to avoid slide rapid by taking out or going on a different trip.

As of this date, this case has not gone to trial. This is only a preliminary motion’s hearing. What it takes to prove the plaintiff’s case at trial may be totally different than what the facts in this decision are. There is also higher likelihood that the case will settle now.

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

The court first looked into the requirements under Idaho statutes add a claim for punitive damages and what punitive damages were in Idaho.

In any action seeking recovery of punitive damages, the claimant must prove, by clear and convincing evidence, oppressive, fraudulent, malicious or outrageous conduct by the party against whom the claim for punitive damages is asserted.

To prove a claim and receive punitive damages in Idaho the plaintiff must prove by clear and convincing evidence that the defendant made fraudulent misstatement or engaged in outrages conduct. There is a high standard of proof to build a case to recover punitive damages.

That definition includes a defendant acting in such a way that is extreme deviated from the reasonable standard of care or acted maliciously fraudulently or outrageously.

Ultimately, an award of punitive damages requires a bad act and a bad state of mind. The defendant must (1) act in a manner that was an extreme deviation from reasonable standards of conduct with an understanding of — or disregard for — the likely consequences, and must (2) act with an extremely harmful state of mind, described variously as with malice, oppression, fraud, or outrageousness.

However, that requirement of proof set out above does not need to be met to allege punitive damages in the complaint. To add a claim for punitive damages in the complaint, plaintiff needs only prove a reasonable likelihood of proving facts at trial to support a claim.

However, for purposes of a motion to amend, the party seeking to add a claim for punitive damages does not need to meet this high burden; rather, the party need only show “a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages.”

These requirements are balanced by the theory that under Idaho law, punitive damages were not favored and should only be awarded in most unusual compelling circumstances.

As a matter of substantive law, it is well established in Idaho that punitive damages are not favored and should be awarded only in the most unusual and compelling circumstances, and are to be awarded cautiously and within narrow limits.

The plaintiff’s argument centered on the river flows on the dates of the trip. The defendant argued that by the time the party reached the slide rapid the water levels would have decreased. The plaintiff argued that the opposite occurred, that the water levels had increased. The Plaintiff also argued that the guides could have called or should have called for more help.

Still, Defendant decided to proceed through Slide Rapid with allegedly unqualified guides, foregoing options to use an available satellite phone to discuss potentially safer options for the relatively inexperienced group, portage around Slide Rapid, or altogether exit the river on land at Eagle Creek (the last place where the group could have readily done so).

The court found the plaintiff had produced enough evidence to prove there was a likelihood that they could prevail on their punitive damages claim at trial.

Viewing the evidence in the light most favorable to Plaintiffs, and giving Plaintiff the benefit of all legitimate inferences without assessing credibility, Plaintiffs have established a reasonable likelihood of proving by clear and convincing evidence that Defendant acted in a manner that was an extreme deviation from reasonable standards of conduct with an understanding (as an experienced outfitter) of — or disregard for — the likely consequences of those actions.

The court then looked at the plaintiff’s claim that the defendant acted with the bad state of mind court or an extremely harmful state of mind. They argued that the manager of the defendant’s river operation purposely misled them about the river levels.

In other words, Plaintiffs argue that Mr. Blackner purposely misled Ms. Schaefer and, thus, the group by failing to inform them of actual (as of the June 24, 2014 launch date) and projected (for the anticipated encounter with Slide Rapid on June 27, 2014) river flows — that is, it was fraudulent and outrageous for Mr. Blackner to say that the forecasted flow for Slide Rapid on June 27, 2014 was 17,000 cfs, when, in actuality, it was much higher.

Again, even though the defendant disputed the allegations. There was enough evidence in addition to the witness statements to support the claim. In fact, the court found that there was more enough evidence to support the claim and that the defendant had acted with the bad state of mind.

In other words, Plaintiffs argue that Mr. Blackner purposely misled Ms. Schaefer and, thus, the group by failing to inform them of actual (as of the June 24, 2014 launch date) and projected (for the anticipated encounter with Slide Rapid on June 27, 2014) river flows — that is, it was fraudulent and outrageous for Mr. Blackner to say that the forecasted flow for Slide Rapid on June 27, 2014 was 17,000 cfs, when, in actuality, it was much higher.

Consequently, the plaintiff’s motion to amend the complaint and add a claim for punitive damages was upheld by the court.

So Now What?

Honestly, it is hard to believe that the river outfitter intentionally misled the plaintiffs in this case. I do suspect that the river outfitter was making statements an attempt to hold onto the trip without either checking the facts or understanding what was really going on with river flows.

Water levels are a constant source of discussion between River outfitters. You want the water levels high enough to attract clients and low enough not to hurt anyone. The best River outfitters figure out, which claims to market to which groups for river levels they are expecting.

Things always change when a fatality occurs. Whatever the trip leader says about what is going to be expected will be adopted by the clients. So if river guides say the rivers okay, clients know the river is okay.

Never forget, marketing makes promises that risk management has to pay for. Here, in an attempt to hold onto a group of clients for a multi-day whitewater rafting trip, marketing might’ve taken over when risk management might’ve been the road.

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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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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.


Summer 2016 Commercial Fatalities

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

If this information is incorrect or incomplete please let me know.  This is up to date as of July 20, 2016. Thanks.

Rafting, Mountaineering, Skiing out of bounds and other sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.

Red is a probable death due to medical issues unrelated to the activity

Blue is an employee fatality

Dark blue is a death of an employee while working

Date

Activity

State

Location

What

Age

Sex

Location 2

Reference

Ref 2

Company

3/22

Cat Skiing

OR

Mt. Bailey

Avalanche hit tree

 

M

 

http://rec-law.us/1XSFbT7

 

Cat Ski Mount Bailey

5/4

Whitewater Rafting

WA

Wenatchee River

Raft Flipped

53

M

Dryden

http://rec-law.us/1TuBuzC

 

Orion River

 

Whitewater Rafting

ME

Dead River

Fell out

52

M

 

http://rec-law.us/22B3zeY

http://rec-law.us/1U0HrbU

North Country Rivers

5/22

Whitewater Rafting

CO

Arkansas River

Fell out

61

F

Parkdale

http://rec-law.us/1r4zOp3

http://rec-law.us/1O75mWC

Echo Canyon River Expeditions

6/4

Whitewater Rafting

AK

Lowe River

Fell out

48

F

 

http://rec-law.us/1Yemxbd

 

 

6/15

Whitewater Rafting

CO

Roaring Fork

Flip

50

M

Slaughterhouse section

http://rec-law.us/1WOcnyo

http://rec-law.us/1UkzCwI

Aspen Whitewater Rafting

6/15

Whitewater Rafting

AK

Kongakut River

Flip

69

F

 

http://rec-law.us/1UU3Ma6

http://rec-law.us/1UC2MZv

Alaska Alpine Adventures

6/15

Whitewater Rafting

AK

Kongakut River

Flip

67

F

 

http://rec-law.us/1UU3Ma6

http://rec-law.us/1UC2MZv

Alaska Alpine Adventures

6/22

Sea Kayaking

ME

Downeast Maine

High Seas

63

M

Corea Harbor

http://rec-law.us/28RNpuw

 

SeaScape Kayaks

6/22

Sea Kayaking

ME

Downeast Maine

High Seas

 

M

Corea Harbor

http://rec-law.us/28RNpuw

 

SeaScape Kayaks

6/24/16

Whitewater Rafting

CO

Green River

 

63

F

Disaster Falls

http://rec-law.us/295dJ7a

http://rec-law.us/290uTwS

Adrift Adventures

7/2/16

Whitewater Rafting

CO

Arkansas River

Fell out

51

F

Zoom Flume

http://rec-law.us/29h5oxj

http://rec-law.us/29hYin3

River Runners

7/17

Inflatable Kayak

OR

Rogue River

Fell out & trapped unwater

57

M

Wildcat Rapid

http://rec-law.us/2a9iiKF

 

 

7/21

Canoe Trip

MN

Boundary Waters

Lighting Strike

39

F

Basswood Lake

http://rec-law.us/29X5ve3

http://rec-law.us/2a1jHUx

BSA Northern Tier High Adventure Base

7/21

Canoe Trip

MN

Boundary Waters

Lighting Strike

13

M

Basswood Lake

http://rec-law.us/29X5ve3

http://rec-law.us/2a1jHUx

BSA Northern Tier High Adventure Base

 

 

 

 

 

 

 

 

 

 

 

If you would like a PDF of this chart please click here.

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.

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Before a meeting a volunteer leader has no duty to protect the youth. Besides kids throw snowballs.

If there is snow, then there will be snowball fights.

Citation: Alvero v. Allen, Jr., 262 A.D.2d 434; 692 N.Y.S.2d 116; 1999 N.Y. App. Div. LEXIS 6634

State: New York: Supreme Court of New York, Appellate Division, Second Department

Plaintiff: James W. Allen, Jr. (I think)

Defendant: Martin Alvero (I think)

Plaintiff Claims: Negligent Supervision

Defendant Defenses: No Duty

Holding: For the Defendant

Year: 1999

This is a great decision, not only for the holding but for several statements and just solid logical reasoning for the decision.

A group of youth was sitting outside waiting for the Boy Scout meeting to start. During that time, the plaintiff was hit on the head by an ice ball. The defendant scoutmaster said he had not arrived yet the plaintiff said the Scoutmaster had arrived and had gone into the building without letting the youth in.

The ice ball was allegedly the first snowball thrown.

The Scoutmaster moved to dismiss the complaint, and the trial court denied the dismissal. The Scoutmaster appealed giving rise to this decision.

The parties are never identified by name just the appellant is the person brining the appeal, named first in the pleading, so I am assuming the appellant scoutmaster is Martin Alvero.

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

Here was the basis of the court’s decision to dismiss the case quoting from a similar fact situation at a school.

“[n]o one grows up in this climate without throwing snowballs and being hit by them. If snow is on the ground as children come to school, it would require intense policing, almost child by child, to take all snowball throwing out of play. It is unreasonable to demand or expect such perfection in supervision from ordinary teachers or ordinary school management; and a fair test of reasonable care does not demand it”.

The court then reasoned that additional, the defendant had no notice of a snowball fight. “Given the absence of proof that the defendant in the present case had notice of an ongoing and potentially dangerous snowball fight, the plaintiff may not prevail on a theory of inadequate supervision…”

Here is another key provision that is important to remember if you are a volunteer.

This conclusion is reinforced by the fact that the plaintiff’s father was present in his car about 50 feet away and neither he nor any of the other parents who were present in the area saw fit to intervene in any way prior to the incident.

Because the father was still present, he could have done something about a snowball fight. More importantly because the plaintiff’s father was still present, he is liable for the plaintiff.

Finally, the court found that the Scout meeting had not begun so therefore the liability of the Scoutmaster (adult volunteer) could not attach.

We also note that the scout meeting had not begun, no official scouting activity was taking place, and, according to the plaintiff’s version, the defendant had entered the building locking the door behind him, thus implicitly leaving the assembling Boy Scouts in the custody of the adults who were present outside

So Now What?

There are several great take a-ways from this case for New York Volunteers.

Until the youth meeting has begun, no liability attaches to the adult volunteers. Likewise, until the adult volunteer arrives no liability attaches.

Second and most importantly no liability attaches to third parties for protecting a child with the parents present unless the acts are intentional. If you are concerned about a child or the child’s parent or if the parent is concerned about your supervision over their child, just require them to be present.

Finally, kids are kids and there is something that no adult can stop kids from doing. Snow on the ground leads to snowball fights and there is nothing you can do about it.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

By Recreation Law           Rec-law@recreation-law.com     James H. Moss

 

 

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Boy Scouts, Scout, Scoutmaster Snowball, Snowball fight, negligent supervision, parental control, Boy Scouts of America, Scout meeting,

 


Alvero v. Allen, Jr., 262 A.D.2d 434; 692 N.Y.S.2d 116; 1999 N.Y. App. Div. LEXIS 6634

Alvero v. Allen, Jr., 262 A.D.2d 434; 692 N.Y.S.2d 116; 1999 N.Y. App. Div. LEXIS 6634

Martin Alvero, Respondent, v. James W. Allen, Jr., Appellant.

98-06867

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

262 A.D.2d 434; 692 N.Y.S.2d 116; 1999 N.Y. App. Div. LEXIS 6634

April 26, 1999, Argued

June 14, 1999, Decided

COUNSEL: Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Edward R. Rimmels of counsel), for appellant.

Siben & Siben, LLP, Bay Shore, N.Y. (Alan G. Faber and Gerald I. Friedman of counsel), for respondent.

JUDGES: Bracken, J. P., Thompson, Sullivan and Friedmann, JJ., concur.

OPINION

[*434] [**117] Ordered that the order is reversed, on the law, with costs, that branch of the motion which was for summary judgment is granted, and the complaint is dismissed.

The infant plaintiff was hit on the head with what he described as an “ice ball” while he and several other Boy Scouts were waiting outside a church in which the weekly meeting of [*435] their Boy Scout troop was scheduled to begin. At a deposition given in connection with a separate action commenced against another entity, the infant plaintiff [***2] stated that he had not seen anyone throw anything prior to the time he was hit. He responded affirmatively when asked whether the “ice ball” with which he was struck, and which had apparently been thrown by another Boy Scout, was “the first thing that was thrown during the whole time from when you got to the church up until you got hit”.

The defendant in the present action is the Boy Scout troop leader who was to be in charge of the meeting. According to his affidavit, he was informed upon his arrival at the church that the infant plaintiff had already been injured. According to the affidavit of the infant plaintiff, on the other hand, the defendant had arrived prior to the incident, had entered the building, and had refused to allow the infant plaintiff to follow him inside. The Supreme Court denied the branch of the defendant’s motion which was premised on CPLR 3211, and denied that branch of the motion as was premised on CPLR 3212, holding that such an application was premature prior to the joinder of issue. We reverse.

The parties clearly laid bare their proof, and treated the motion as one for summary judgment. The [***3] Supreme Court was therefore authorized to treat the pre-answer application pursuant to CPLR 3211 (a) (7) as one for summary judgment (see, CPLR 3211 [c]; see, e.g., MacDonald v Prudential Sec., 247 AD2d 346; Palazolo v Palazolo, 244 AD2d 393; Gelmin v Quicke, 224 AD2d 481).

Turning to the merits, it is clear that the defendant cannot be held liable based on allegations of inadequate supervision under the facts as outlined above. As the Court of Appeals stated in Lawes v Board of Educ. (16 NY2d 302, 304), “[n]o one grows up in this climate without throwing snowballs and being hit by them. If snow is on the ground as children come to school, it would require intense policing, almost child by child, to take all snowball throwing out of play. It is unreasonable to demand or expect such perfection in supervision from ordinary teachers or ordinary school management; and a fair test of reasonable care does not demand it”.

[**118] Given the absence of proof that the defendant in the present case had notice of an ongoing and potentially dangerous snowball [***4] fight, the plaintiff may not prevail on a theory of inadequate supervision (see also, Johnsen v Cold Spring Harbor Cent. School Dist., 251 AD2d 548; Kennedy v Seaford Union Free School Dist. No. 6, 250 AD2d 574). This conclusion is [*436] reinforced by the fact that the plaintiff’s father was present in his car about 50 feet away and neither he nor any of the other parents who were present in the area saw fit to intervene in any way prior to the incident. We also note that the scout meeting had not begun, no official scouting activity was taking place, and, according to the plaintiff’s version, the defendant had entered the building locking the door behind him, thus implicitly leaving the assembling Boy Scouts in the custody of the adults who were present outside (see generally, Phillipe v City of New York Bd. of Educ., 254 AD2d 339 [school has no duty of supervision prior to starting of school day]). For these reasons, the defendant was entitled to summary judgment.

Bracken, J. P., Thompson, Sullivan and Friedmann, JJ., concur.


US Army and BSA not liable for injured kids on Army base. No control by the BSA and recreational use defense by US Army.

Agency requires more than just relationship; it requires actual control over the alleged agents.

Wilson v. United States, 989 F.2d 953; 1993 U.S. App. LEXIS 6165, (8th Cir. 1993)

State: Missouri, United States Court of Appeals for the Eighth Circuit

Plaintiff: Mark D. Wilson; Janet L. Wilson, Jason S. Harbian; Michael Harbian; Sharon Harbian; Daniel R. Winfrey, a Minor, by Susan Crump, his Mother and Next Friend, and; Susan Crump

Defendant: United States of America; the Boy Scouts of America

Plaintiff Claims: Federal Tort Claims Act, and against the Boy Scouts of America (BSA) pursuant to Missouri state law, for negligent supervision and failure to train the adult supervisors

Defendant Defenses: No relationship between the BSA and the adult volunteers and the Missouri Recreational Use Statute

Holding: for the Defendant

Year: 1993

A group of Boy Scouts and their adult leaders were at Fort Leonard Wood, a US Army military post for the weekend to participate in the Army’s Youth Tour Program. The boys and adults stayed in a barrack. Stacked beside the barrack were aluminum alloy irrigation pipes that were approximately 30’ long. The pipes were stacked there when not in use for six years.

Three of the boys grabbed one of the pipes and carried it 20’ west of the building and raised it to a vertical position. It came in contact with a high-voltage line injuring two boys and killing one.

Because one of the defendants was the United States, as the owner of the land and property under the supervision and control of the US Army, the case was brought in the Federal District Court of Missouri for the Eastern District of Missouri.

The trial court dismissed the claims of all plaintiffs because of the Missouri recreational use act for the defendant US Army, and the BSA did not owe the plaintiff’s a duty of care. The plaintiff’s appealed.

Analysis

To sue an agency of the United States, your claims must meet the requirements of the Federal Tort Claims Act. The act allows the defendant to assert any defense allowed under the act and as allowed under the law of the state where the incident occurred.

In this case, the defendant US raised the defense provided by the Missouri Recreational Land Use Statute, Mo. Rev. Stat. §§ 537.345 – 537.348. The act provides immunity to landowners who make their property available for recreation without an entry charge.

Except as provided in sections 537.345 to 537.348, an owner of land owes no duty of care to any person who enters on the land without charge to keep his land safe for recreational use or to give any general or specific warning with respect to any natural or artificial condition, structure, or personal property thereon.

Recreational use is defined by the act as “hunting, fishing, camping, picnicking, biking, nature study [and] winter sports.”

The immunity is available unless the landowner is:

…found to have been either maliciously or grossly negligent in failing to guard or warn against a dangerous condition which the owner knew or should have known to be dangerous, or if the landowner negligently failed to warn or guard against an ultrahazardous condition. Other exceptions to the nonliability of the statute include injuries occurring on or in any “noncovered land,” which is defined as land used primarily for commercial, industrial or manufacturing purposes.

The Army charged $2.00 per person to say in the building. The plaintiff’s argued that the recreational use act then did not apply to the defendant US Army.

1) the Army charged $ 2.00 per person to be billeted in Building 1614; (2) the United States receives an economic benefit from offering its land; (3) the Boy Scouts were not members of the “general public,” and thus were not covered by the Act; (4) the injury occurred on “noncovered land;” and (5) the United States negligently failed to protect against an ultrahazardous condition.

The Fort was called an open military post. That means that members of the public were allowed to visit the post. The post was open to the public for “fishing, hunting, hiking, camping, picnicking or canoeing.” The Fort also offered the Youth Tour Program which allowed national youth organizations such as the BSA special programs not available to the general public. These programs included “visits to the Fort’s museum, an indoor rifle range, an obstacle course and a cannon range.”

If the youth group or in this case, the BSA, want to spend the night, the Army charges a $2.00 per person fee.

This fee covers the cost of maintaining and equipping the facility with mattresses, toilet paper, soap, and other supplies. If a troop chooses to stay overnight but no beds are available, the lodging fee is reduced to $ 1.00 per person/per night.

The application of the Missouri Recreational Use Statute, construes fees in the act as defined to enter upon the land. The $2.00 fee was paid to stay overnight in the building, entrance onto the base was free.

There is no evidence in the record to indicate that this fee would have been charged to either participate in the Youth Tour Program, or to enter Fort Leonard Wood, if the scouts had elected not to stay overnight. In fact, all the Fort Leonard Wood documents relating to this fee provide that it is a “lodging” fee, and that it is assessed on a per person/per night basis.

The remaining arguments presented by the plaintiffs were quickly dismissed by the court in a paragraph for each argument.

The court then turned to the claims against the Boy Scouts of America. In order to hold the National Council of the BSA liable for the acts of the volunteer adult leaders in Missouri, the plaintiff has to prove an agency relationship existed between the BSA and the adults. This would allow the plaintiff’s to argue a vicarious liability claim against the BSA.  

The appellants claim the BSA had the right to control and supervise Troop 392’s adults, that the BSA is liable for the negligent acts of the troop’s adult leaders which were committed within the scope and course of their agency relationship, and further that the troop’s adult leaders were clothed with implied and apparent authority to act on behalf of the BSA when they were present at Fort Leonard Wood.

The court then accurately related the legal relationship between the BSA national office and volunteers of a unit.

The Boy Scouts of America is a congressionally chartered benevolent national organization, which is divided into geographic areas known as local councils. Three hundred ninety-eight local councils are chartered in the United States. Local sponsors, such as schools, churches or civic organizations apply for charters from the BSA through their local council. Local volunteers form a patrol leaders’ council to plan troop activities. BSA does not conduct or require any training for these adult volunteers. Troops do not need permission from BSA before participating in activities, with the exception of tours outside the United States or five hundred miles or more from the local council. The BSA had no advanced notice of Troop 392’s trip to Fort Leonard Wood. The troop was not required, nor did it receive, permission from the BSA to go to Fort Leonard Wood.

The court then examined the requirements of respondeat superior, needed to hold an employer liable for the acts of an employee.

Liability based on respondeat superior requires some evidence that a master-servant relationship existed between the parties. The test to determine if respondeat superior applies is whether the person sought to be charged as a master had “the right or power to control and direct the physical conduct of the other in the performance of the act.” If there is no right to control, there is no liability.

The plaintiff failed to produce any evidence that the BSA national council has any control over the “specific activities of individual troops, or that it had a duty to control, supervise or train volunteer leaders for the Fort Leonard Wood activity.”

The appellate court upheld the lower court’s dismissal of the case.

So Now What?

This is another situation where the recreational use statute has been parsed by how the many paid were used by the landowner. Money paid to enter the land does not allow the landowner to use the defense of the state recreational use statute. Money paid for other things once on the land may still allow the use of the statute as a defense.

However, this is a narrow reading of the law and would be specific to each state law. Make sure you have consulted with a local attorney familiar with the law before making this decision to charge for other items.

The Boy Scouts of America do not supervise, control or have any power or authority over its volunteers.

 

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By Recreation Law       Rec-law@recreation-law.com              James H. Moss

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