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Elliott, v. Carter, 2016 Va. LEXIS 151

Posted: November 11, 2016 | Author: Recreation Law | Filed under: Camping, Legal Case, Minors, Youth, Children, Virginia | Tags: Boy Scouts of America, BSA, Gross negligence, Heart of Virginia Council, Rappahannock River, Senior Patrol Leader, SPL, VA, Virginia | Leave a comment

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

Record No. 160224

SUPREME COURT OF VIRGINIA

October 27, 2016, Decided

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

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

DISPOSITION: Affirmed.

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

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

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

OPINION BY: S. BERNARD GOODWYN

OPINION

PRESENT: All the Justices.

OPINION BY JUSTICE S. BERNARD GOODWYN

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

Background

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

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

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

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

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

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

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

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

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

Analysis

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

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

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

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

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

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

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

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

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

Affirmed.

DISSENT BY: McCULLOUGH

DISSENT

JUSTICE McCULLOUGH, with whom JUSTICE MIMS joins, dissenting.

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

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

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

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

Posted: October 24, 2016 | Author: Recreation Law | Filed under: Assumption of the Risk, Legal Case, Minors, Youth, Children, Ohio | Tags: Boy Scouts, Boy Scouts of America, BSA, Cub Scout, Den Leader, Ice skating, Scouting | Leave a comment

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]

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

Posted: July 27, 2016 | Author: Recreation Law | Filed under: Camping, Paddlesports, Whitewater Rafting | Tags: avalanche, Boundary Waters, Boy Scouts, BSA, Canoeing, Cat Skiing, Oregon, tality, Whitewater Rafting | Leave a comment

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

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

Posted: July 11, 2016 | Author: Recreation Law | Filed under: Assumption of the Risk, Camping, Minors, Youth, Children, New York, Youth Camps | Tags: Adequate Supervision, Boy Scouts of America, BSA, Headlamp, negligent supervision, Shower House, Supervision, Youth, YPP, YPT | 1 Comment

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

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

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

Plaintiff: Davide E. Gomes

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

Plaintiff Claims: negligent supervision

Defendant Defenses: assumption of the risk, no duty

Holding: for the defendants

Year: 2016

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

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

The plaintiff does not remember the incidence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The court found issues with this.

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

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

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

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

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

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

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

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

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

Quoting another case the court stated:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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

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

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

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

Posted: June 17, 2016 | Author: Recreation Law | Filed under: Camping, Legal Case, New York | Tags: Adequate Supervision, Boy Scouts of America, BSA, Headlamp, negligent supervision, Shower House, Supervision, Youth, YPP, YPT | Leave a comment

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

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

115435/10

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

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

March 10, 2016, Decided

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

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

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

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

JUDGES: Barbara Jaffe, JSC.

OPINION BY: Barbara Jaffe

OPINION

Barbara Jaffe, J.

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

I. PERTINENT BACKGROUND

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

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

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

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

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

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

(NYSCEF 110).

On this motion, the following relevant facts are undisputed:

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

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

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

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

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

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

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

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

(NYSCEF 151).

The New York State Department of Health (DOH) promulgates [*4] specific rules for children’s camps. (10 NYCRR § 7-2 et al.). As pertinent here, the regulations require adequate supervision, and that “as a minimum . . . there shall exist visual or verbal communications capabilities between camper and counselor during activities and a method of accounting for the camper’s whereabouts at all times.” (10 NYCRR § 7-2.5[o]).

Council’s written plan for Floodwood requires that supervision of campers “be maintained for the duration (24/7) of their stay at the camp.” (NYSCEF 174). Council’s Leaders Guide for Floodwood provides that “running and horseplay have no place at Scout Camps,” and all scout units must have two adult leaders with the unit at all times. (NYSCEF 175).

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

It is undisputed that other scouts reported that while they were in the shower house, plaintiff took a water pump from the wall and squirted water on them. When one of the scouts told him to stop, plaintiff ran out of the shower house and fell to [*6] the ground. None of the scouts knew what had caused the fall. (NYSCEF 167-171, 176).

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

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

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

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

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

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

(NYSCEF 163).

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

Richard Saunders testified at an EBT that at the time of plaintiff’s accident, [*9] he was 18 years old and employed at Floodwood as a camp health officer. He described Floodwood as a “high-adventure base” for scouts older than 13 to do back-country exploring. After the accident, he completed a form as required by the DOH, on which he noted, under the category “Supervision During Incident,” that the “activity was inadequately addressed in the written plan,” by which he intended to convey that he had reviewed the scout’s written plan for the trip and saw [**4] nothing therein related to supervision of the scouts while in the shower house. He also wrote that no camp staff was present when the accident occurred. Although Saunders had first written that the supervision was “adequate,” he changed it to “inadequate” based on the absence of an adult when plaintiff was injured. Saunders had never before filled out such a form, nor was it part of his job.

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

(NYSCEF 177).

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

II. CONTENTIONS

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

Plaintiff argues that his inability to remember the accident permits a relaxed standard of proof on summary judgment, and contends that there are two possible explanations for his accident: (1) that he was struck over the head with a blunt object by a fellow scout, or (2) that he tripped and fell while running over the uneven and non-illuminated area around the shower house, and that in either scenario, the accident would not have happened if defendants had adequately supervised that night. He asserts that a jury could conclude that a reasonably prudent parent would not permit [*13] six minors “to wander around the woods at 10:00 pm, for an indefinite period of time, without any adult supervision whatsoever,” and maintains that any “horseplay” should have and would have been discouraged by the Troop leaders. He also observes that defendants violated their own policies by failing to have a troop leader with the troop “at all times” or “for the duration (24/7)” of their trip. (NYSCEF 190).

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

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

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

III. ANALYSIS

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

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

A plaintiff who, due to a failure of memory, cannot describe what led to his injury is not held to as high a degree of proof on his or her cause of action. (Noseworthy v City of New York, 298 NY 76, 80 N.E.2d 744 [1948]; see Bah v Benton, 92 AD3d 133, 936 N.Y.S.2d 181 [1st Dept 2012] [plaintiff who presented medical evidence establishing loss of memory due [*16] to accident at issue entitled to lesser standard of proof applicable to party unable to present party’s version of facts]). However, even when a plaintiff suffers from amnesia, he is not relieved of the obligation to provide “some proof from which negligence can be reasonably inferred.” (Alotta v Diaz, 130 AD3d 660, 11 N.Y.S.3d 868 [2d Dept 2015]; see Schechter v Klanfer, 28 NY2d 228, 269 N.E.2d 812, 321 N.Y.S.2d 99 [1971] [even if amnesiac plaintiff is held to lesser degree of proof, it does not “shift the burden of proof or eliminate the need for plaintiffs to introduce evidence of a prima facie case”]; Santiago v Quattrociocchi, 91 AD3d 747, 937 N.Y.S.2d 119 [2d Dept 2012] [same]).

A. Did defendants breach their duty to supervise plaintiff?

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

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

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

The standard for determining whether a duty to supervise a minor has been breached is “whether a parent of ordinary prudence placed in the identical situation and armed with the same [**7] information would invariably have provided greater supervision.” (Mayo v New York City Tr. Auth., 124 AD3d 606, 3 N.Y.S.3d 36 [2d Dept 2015], quoting Mary KK v Jack LL, 203 AD2d 840, 611 N.Y.S.2d 347 [3d Dept 1994]).

Moreover, “in determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow [campers], it must be established that [camp] authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury, that is, that the third-party acts could reasonably have been anticipated.” (Ragusa v Town of Huntington, 54 AD3d 743, 864 N.Y.S.2d 441 [2d Dept 2008], quoting Mirand v City of New York, 84 NY2d 44, 637 N.E.2d 263, 614 N.Y.S.2d 372 [1994]). Although if an accident occurs in “so short a span in time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the . . . defendants is warranted.'” (Atehortua v Lewin, 90 AD3d 794, 935 N.Y.S.2d 102 [2d Dept 2011], quoting Nash v Port Wash. Union Free School Dist., 83 AD3d 136, 922 N.Y.S.2d 408 [2d Dept 2011]).

1. Was the supervision adequate?

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

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

Moreover, a parent who permits his or her child to attend an overnight camping trip in the woods where the child will be taught skills related to understanding and surviving outdoor conditions, is presumably aware of the hazards and risks of injury associated with such conditions, and it would be illogical for that same parent to require or believe it necessary for the child to be escorted personally to and from every area within the camp. Such a degree of supervision “in a camp setting is neither feasible nor desirable” (Phelps v Boy Scouts of Am., 305 AD2d 335, 762 N.Y.S.2d 32 [1st Dept 2003]), and camps “cannot reasonably be expected to continuously supervise and control all of [the campers] movements and activities” (Harris v Five Point Mission – Camp Olmstedt, 73 AD3d 1127, 901 N.Y.S.2d 678 [2d Dept 2010]).

On point is Kosok v Young Men’s Christian Assn. of Greater New York, where a group of boys at a summer camp injured the plaintiff while playing a prank involving attaching a pail to a fishing rod and letting it descend onto the heads of other unsuspecting boys. The group of boys, ranging in age from 12 to 15, occupied a cabin by themselves; the camp counselor did not stay [*20] in [**8] the cabin with them during the midday break. The Court dismissed the case, finding that there was no negligence by defendants in failing to supervise “the rest period of boys of high-school age for a short period.” (24 AD2d 113, 264 N.Y.S.2d 123 [1st Dept 1965], affd 19 NY2d 935, 228 N.E.2d 398, 281 N.Y.S.2d 341 [1967]). The Court observed that ” [r]emembering that this is a Summer camp, it will be seen that constant supervision is not feasible . . . Nor is it desirable. One of the benefits of such an institution is to inculcate self-reliance in the campers which an overly protective supervision would destroy.” (24 AD2d at 115; see also Gustin v Assn. of Camps Farthest Out, Inc., 267 AD2d 1001, 700 N.Y.S.2d 327 [4th Dept 1999] [same]).

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

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

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

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

Moreover, plaintiff’s reliance on Saunders’s conclusion or opinion in the DOH report that the accident was caused by inadequate supervision is not conclusive here, not only because he had no authority to bind defendants to his conclusion, but also based on the circumstances that he was an 18-year old who had never before filled out or even seen a DOH report, and who had received no training or guidance as to how it should be filled out or the meanings of the terms therein. In any event, Saunders testified that he wrote that there was inadequate supervision based only on the fact that the Troop leaders were not physically present at the time of the accident, which is an insufficient basis for the conclusion.

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

Peterson’s expert opinion is based on speculation and is conclusory, and he cites no regulation or requirement that specifies that adequate supervision in this context means that the Troop leaders were required to escort the scouts to the shower house and wait outside until they finished [*22] showering. Indeed, any claim that such supervision is required in camps is undermined by the undisputed fact that at the camp that the scouts attended a week before going to Floodwood, the scouts went to the shower house unescorted and used only the buddy system. Reliance on the DOH requirement of “visual or verbal communication” between campers and counselors and Council’s plan for Floodwood which required the supervision of campers “24/7” is misplaced as neither requires that the Troop leaders be constantly present with the scouts. (See eg, Harris v Five Point Mission – Camp Olmstedt, 73 AD3d 1127, 901 N.Y.S.2d 678 [2d Dept 2010] [while expert concluded that camp was negligent in failing to provide plaintiff with shin guards during soccer game in which he was injured, he failed to allege that camps generally provide shin guards during games or that rules requiring use of shin guards in soccer leagues have been implemented by or [**9] accepted as accepted practice at camps]; Cherry v State of New York, 42 AD2d 671, 344 N.Y.S.2d 545 [4th Dept 1973], affd 34 NY2d 872, 316 N.E.2d 713, 359 N.Y.S.2d 276 [1974] [where camper was injured when nail he struck with hammer while building tent platform struck him, expert’s opinion that the camp was required to provide campers with safety goggles was expert’s personal opinion and neither statute nor regulations required goggles]). [*23]

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

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

2. Was plaintiff’s accident foreseeable?

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

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

[a] certain amount [*24] of horseplay is almost always to be found in gatherings of young people, and is generally associated with children’s camps. It is only to be discouraged when it becomes dangerous. Nothing in the incident itself or surrounding circumstances indicates any notice to defendant that such was likely to result here.

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

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

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

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

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

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

Moreover, it was plaintiff’s own impulsive and reckless conduct in squirting the other scouts with the water pump and then running out of the shower house, that led to his injury. (See Gibbud v Camp Shane, Inc., 30 AD3d 865, 817 N.Y.S.2d 435 [3d Dept 2006] [plaintiff’s own impulsive and reckless act in grabbing camp counselor from behind, causing counselor to drop plaintiff and fracture plaintiff’s [*27] ankle, led to his injury]).

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

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

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

Plaintiff was able, however, to recall the conditions outside of the [*28] shower house, which consisted of typical conditions in any wooded or camp area, i.e., rocks, dirt, branches, etc., and [**10] having been on several camp trips, was presumably aware of the existence and risks of such conditions. He did not identify or recall any unusual, unexpected, or dangerous conditions, nor have any such conditions been alleged.

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

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

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

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

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

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

IV. CONCLUSION

For all of these reasons, it is hereby

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

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

ENTER:

Barbara Jaffe, JSC

DATED: March 10, 2016

New York, New York

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

Posted: May 25, 2015 | Author: Recreation Law | Filed under: Minors, Youth, Children, Missouri | Tags: agency, Boy Scouts, Boy Scouts of America, BSA, Fort Leonard Wood, Recreational Use Statute, Respondeat Superior | Leave a comment

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

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

Wilson v. United States of America, 989 F.2d 953; 1993 U.S. App. LEXIS 6165

Posted: May 24, 2015 | Author: Recreation Law | Filed under: Legal Case, Minors, Youth, Children, Missouri | Tags: agency, Boy Scouts, Boy Scouts of America, BSA, Fort Leonard Wood, Recreational Use Statute, Respondeat Superior | Leave a comment

Wilson v. United States of America, 989 F.2d 953; 1993 U.S. App. LEXIS 6165

Mark D. Wilson; Janet L. Wilson, Appellants, v. United States of America; The Boy Scouts of America, Appellees. Mark D. Wilson; Janet L. Wilson, Plaintiffs, v. The Boy Scouts of America, Defendants. Jason S. Harbian; Michael Harbian; Sharon Harbian; Daniel R. Winfrey, a Minor, by Susan Crump, his Mother and Next Friend, and; Susan Crump, Appellants, v. United States of America; The Boy Scouts of America, Appellees.

No. 92-1438, No. 92-3363

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

989 F.2d 953; 1993 U.S. App. LEXIS 6165

September 18, 1992, Submitted

March 29, 1993, Filed

SUBSEQUENT HISTORY: [**1] Rehearing Denied May 10, 1993, Reported at: 1993 U.S. App. LEXIS 10903.

PRIOR HISTORY: Appeals from the United States District Court for the Eastern District of Missouri. District No. 89-1696-C-7. Jean C. Hamilton, U.S. District Judge.

DISPOSITION: Affirmed

CASE SUMMARY:

COUNSEL: For MARK D. WILSON, JANET L. WILSON, Plaintiffs – Appellants: Alan E. DeWoskin, 314-727-6330, Suite 426, 225 S. Meramec Avenue, St. Louis, MO 63105.

For UNITED STATES OF AMERICA, Defendant – Appellee: Joseph Moore, Asst. U.S. Attorney, 314-539-3280, U.S. ATTORNEY’S OFFICE, 1114 Market Street, St. Louis, MO 63101. Robert William Cockerham, BROWN & JAMES, 705 Olive Street, Suite 1100, St. Louis, MO 63101, 314-421-3400. For BOY SCOUTS, OF AMERICA, Defendants – Appellees: Russell F. Watters, Robert William Cockerham, Thomas Michael Ward, BROWN & JAMES, 705 Olive Street, Suite 1100, St. Louis, MO 63101, 314-421-3400.

JUDGES: Before HANSEN, Circuit Judge, and HEANEY and ROSS, Senior Circuit Judges.

OPINION BY: ROSS

OPINION

[*954] ROSS, Senior Circuit Judge.

Appellants Mark Wilson and Janet Wilson, the parents of Anthony Wilson, and [*955] Jason Harbian and Daniel Winfrey, and their parents, appeal from the trial court’s ¹ grant of summary judgment in favor of appellees United States of America and the Boy Scouts of America, in an action arising out of the death of Anthony Wilson and the injuries sustained by Jason Harbian and Daniel Winfrey.

1 The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri.

On April 22, 1988, Anthony Wilson, Daniel Winfrey and Jason Harbian, members of Troop 392 of the Boy Scouts of America, St. Louis Area Council, along with other boy scouts and five adult leaders, went to Fort Leonard Wood, a United States Army military post, on a boy scout trip as part of the Army’s Youth Tour Program. A pile of lightweight aluminum [**2] alloy irrigation pipes, approximately thirty feet in length, were stacked outside Building 1614, where the troop was billeted for the weekend. The pipes had been used for irrigation of the athletic field adjacent to the building, and when not in use, were stored alongside the building. The pipes had been stacked in this manner for approximately six years.

On the second night of their weekend stay, at approximately 10:30 p.m., Anthony, age thirteen, and five or six other scouts, ages twelve to sixteen, were outside Building 1614, while the leaders were inside the building. Anthony, Daniel and Jason picked up one of the aluminum pipes, carried it approximately twenty feet west of the building, and raised it to a near vertical position, causing the pipe to come in contact with a 7,200 volt power line which ran over the building. All three scouts received electric shocks; Anthony died as a result of the injuries he sustained.

Mark and Janet Wilson brought a wrongful death action against the United States pursuant to the 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. [**3] Sometime later the Harbian/Winfrey plaintiffs filed personal injury actions against both the United States and the BSA, and eventually these cases were consolidated with the Wilson case for trial. Motions for summary judgment filed by the United States and the BSA were eventually granted as against all appellants. ²

2 On December 4, 1992, following oral argument of the Wilson appeal before this court, the Harbian and Winfrey cases were consolidated with the Wilson appeal. All parties agree that these cases arose from the same occurrence and are identical in material fact and law. The Harbians and the Winfreys rely on the briefs and oral argument submitted in the Wilson appeal. The Wilsons, Harbians and Winfreys will be collectively referred to as “appellants.”

The appellants’ theory of recovery against the BSA is based on an alleged agency relationship between the BSA and the adult volunteers supervising the scouts. The district court granted the BSA’s motion for summary judgment, concluding [**4] that appellants failed to produce any evidence that the national organization of the BSA had a duty to control, supervise or train volunteer leaders for the Fort Leonard Wood activity. The district court also granted the United States’ motion for summary judgment based on its finding that the United States owed no duty of care to the scouts because they were recreational users of the property under Missouri’s Recreational Land Use Statute. See Mo. Rev. Stat. § 537.346. After careful consideration of each allegation raised by the appellants, we affirm the decision of the district court.

I. United States of America

The action against the United States arises [HN1] under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, thus, the “United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances.” Id. at § 2674. Further, the United States is “entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to the employee of the United States . . . as well as any other defenses to which the United States is entitled.” [**5] Id. Therefore, the United States is entitled to [*956] the benefit of state recreational use statutes, if applicable, when it is sued under the Federal Tort Claims Act. See Hegg v. United States, 817 F.2d 1328, 1329 (8th Cir. 1987) (construing the Iowa Recreational Use Statute); Umpleby v. United States, 806 F.2d 812, 815 (8th Cir. 1986) (applying North Dakota’s Recreational Use Statute).

[HN2] The Missouri Recreational Land Use Statute, Mo. Rev. Stat. §§ 537.345 – 537.348 immunizes landowners who make their property available for the recreational use of others without an entry charge. The statute specifically provides:

[HN3] 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.

Id. at § 537.346. “Charge” is defined in the statute as:

[HN4] the admission price or fee asked by an owner of land or an invitation or permission without price or fee to use land for recreational [**6] purposes when such invitation or permission is given for the purpose of sales promotion, advertising or public goodwill in fostering business purposes.

Id. at § 537.345(1). “Recreational use” as defined in the statute includes outdoor activities, such as “hunting, fishing, camping, picnicking, biking, nature study [and] winter sports. Id. at § 537.345(4).

[HN5] While providing for a general immunity against liability, a landowner may nonetheless be liable if 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. Id. at § 537.348(1). 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. Id. at § 537.348(3)(d).

The appellants contend that the Missouri Recreational Land Use Statute does not apply to the United States because (1) the Army charged $ 2.00 per person to be billeted in Building 1614; (2) the United States [**7] 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.

Fort Leonard Wood is an open military post, where members of the public can freely enter without being stopped or questioned by guards or military police. Specified areas are open to the public for fishing, hunting, hiking, camping, picnicking or canoeing. Many tours are given to various groups, such as senior citizens and church and school groups, free of charge. The Fort also offers a Youth Tour Program which is open only to national youth organizations, such as the Boy Scouts of America. The program includes activities which are not available to the general public, such as visits to the Fort’s museum, an indoor rifle range, an obstacle course and a cannon range.

If a troop in the Youth Tour Program chooses to stay overnight in Building 1614, a $ 2.00 per person/per night lodging fee is charged. This fee covers the cost of maintaining and equipping the facility with mattresses, toilet paper, [**8] 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. Significantly, the lodging fee is charged on a per person/per night basis, while there is no charge for the tour itself, which is offered only on Saturdays.

The interpretation of the various recreational use statutes is controlled by the precise language of each statute. Courts that have construed recreational land use statutes with language similar to the Missouri statute have interpreted “charge” as ” [*957] an admission fee to enter the land.” For example, in Genco v. Connecticut Light and Power Co., 7 Conn. App. 164, 508 A.2d 58, 62 (Conn. App. Ct. 1986), noting that the Connecticut General Statute § 52-557f defines “charge” as “the admission price or fee asked in return for invitation or permission to enter or go upon the land,” the court held that “the only way to avoid inconsistent application of the Act . . . is to interpret the word ‘charge’ as an actual admission price paid for permission to enter the land at the time of its use for recreational purposes.” Id. (emphasis added).

Furthermore, a parking fee paid by [**9] a camper is not a charge within the meaning of the Nebraska Recreational Use Statute, which defines “charge” as “the amount of money asked in return for an invitation to enter or go upon the land.” Garreans v. City of Omaha, 216 Neb. 487, 345 N.W.2d 309, 313 (Neb. 1984) (emphasis added). In Garreans, the court noted that the

charges were made for the right to park a camper on a pad, for the right to pitch a tent in a tent camping area, and for the use of camper dumping facilities. Payment of the fee . . . did not entitle . . . [the person paying the fee] to a greater right to use any of the park’s other facilities than that had by the general public.

Id.

As in Jones v. United States, 693 F.2d 1299, 1303 (9th Cir. 1982), where a one dollar fee was charged the injured plaintiff to rent an inner tube for snow sliding, the fee paid by the scouts to bunk in Building 1614 was not “charged to members of the public for entry on to the land or for use of the land.” Id. Rather, the scouts paid the $ 2.00 fee to bunk in Building 1614, but entered the park without paying a fee. The Jones court held that the plaintiff [**10] “could have used . . . the Park without making any payment if she had brought her own tube.” Id. Similarly, the appellants could have used Fort Leonard Wood without making this $ 2.00 payment if they had chosen not to stay overnight. The Missouri statute does not provide that the immunity for an entire parcel should be nullified if a landowner charges for admission to a different portion of the parcel, nor would such a rule be consistent with the statute’s purpose. “Consideration should not be deemed given . . . unless it is a charge necessary to utilize the overall benefits of a recreational area so that it may be regarded as an entrance or admission fee.” Moss v. Department of Natural Resources, 62 Ohio St. 2d 138, 404 N.E.2d 742, 745 (Ohio 1980) (emphasis added).

The appellants herein paid $ 2.00 per night for the right to stay overnight in Building 1614. 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 of the Fort Leonard Wood documents relating to this fee provide that it is a “lodging” [**11] fee and that it is assessed on a per person/per night basis. The appellants have failed to present any evidence that the fee was required in order to enter Fort Leonard Wood.

The remainder of appellants’ arguments with regard to the liability of the United States are also without merit. The appellants contend that the United States is outside the protection of the Missouri Recreational Land Use Statute because the scouts are not “members of the general public.” They contend that because only members of national youth organizations are eligible to participate in the Youth Tour Program, the scouts should be treated as guests or invitees. Appellants’ argument, however, relies upon a distinction not made within the language of the Missouri Recreational Land Use Statute. The plain language of the statute indicates that a landowner owes no duty of care “to any person who enters on the land without charge” for recreational purposes. Mo. Rev. Stat. § 537.346 (emphasis added).

We also reject the appellants’ argument that the United States is outside the protection of the Missouri statute because the Army’s purpose in allowing admission to Fort Leonard Wood is to develop public [*958] goodwill [**12] in fostering a business purpose. See Mo. Rev. Stat. § 537.345(1). When Boy Scout troops visit the Fort, they are not recruited or encouraged in any way to join the Army, nor are any records kept of scouts who have participated in the Youth Tour Program. Further, appellants have failed to establish that the Army operates as a business within the intended meaning of the statute.

Finally, appellants’ argument that Building 1614 was essentially a commercial “hotel” located in a “populated, residential area,” and therefore falls within the “noncovered land” exception of section 537.348(3)(d) is without merit. The record does not support appellants’ contention that the Fort was “predominately used for residential purposes,” nor that Building 1614 was operated as a commercial enterprise. Nor can we accept appellants’ argument that the United States acted with willful and wanton disregard for the safety of the troops or negligently failed to protect them against an ultrahazardous condition. There simply has been no evidence presented to establish either of these theories.

The judgment of the district court granting summary judgment in favor of the United States is affirmed.

II. Boy [**13] Scouts of America

The appellants also challenge the district court’s grant of summary judgment in favor of the Boy Scouts of America. The appellants contend there is a genuine issue of material fact as to whether an agency relationship existed between the BSA and the adult volunteers of Troop 392 so as to provide for vicarious liability for any negligence on the part of the adult leaders. 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 appellants first argue that the district court improperly considered the affidavit of Lloyd Roitstein, Area Director in the North Central Region of the Boy Scouts of America, in considering the relationship between the national organization and the individual troops because the affidavit was not based on personal knowledge. We agree with the district court that Roitstein’s role as an Area Director [**14] establishes his personal familiarity with the Boy Scout organization and conclude that the affidavit was properly considered.

[HN6] Under the doctrine of respondeat superior an employer is liable for the negligent acts or omissions of his employee which are committed within the scope of his employment. Light v. Lang, 539 S.W.2d 795, 799 (Mo. App. Ct. 1976). [**15] Liability based on respondeat superior requires some evidence that a master-servant relationship existed between the parties. Usrey v. Dr. Pepper Bottling Co., 385 S.W.2d 335, 338 (Mo. Ct. App. 1964). 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.” Id. at 339. If there is no right to control, there is no liability.

Courts of other jurisdictions that have addressed the issue now before this court have rejected the imposition of liability against the BSA or the local councils, [*959] noting the lack of control these entities exercise over individual troops and their sponsoring organizations. For example, in Mauch v. Kissling, 56 Wash. App. 312, 783 P.2d 601 (Wash. Ct. App. 1989), the court found there was no basis for the doctrine of apparent authority because the plaintiff had not presented evidence that BSA consented to or had control of the scoutmaster’s activities. Id. at 605.

Similarly, in Anderson v. Boy Scouts of America, Inc., 226 Ill. App. 3d 440, 589 N.E.2d 892, 168 Ill. Dec. 492 (Ill. App. Ct. 1992), [**16] the court found the plaintiffs had failed to establish that an agency relationship existed between the plaintiffs and the local council or the BSA:

We find no provisions in the charter, bylaws, rules and regulations promulgated by the BSA, nor can plaintiffs cite to any provisions within these documents, which specifically grant BSA or its district councils direct supervisory powers over the method or manner in which adult volunteer scout leaders accomplish their tasks.

Id. at 894-95.

Recently, the Missouri Court of Appeals considered the Wilson’s cause of action against the St. Louis Area Council of the Boy Scouts of America, arising from the same circumstances of the instant case. The Missouri court dismissed the suit against the local council, finding that “Council neither controlled the actions of the troop leaders nor ran the program at Fort Leonard Wood.” While the Missouri state court decision involved the local council, it is instructional here because the relationship between the national organization and the individual troop leaders is even more remote.

Appellants also contend that sufficient facts establish a jury question as [**17] to whether a principal/agent relationship existed under a theory of implied agency or apparent authority. Implied agency and apparent authority, however, are based on manifestations by the principal which causes a third person reasonably to believe that an agent of the principal is authorized to do certain acts. Barton v. Snellson, 735 S.W.2d 160, 162 (Mo. Ct. App. 1987). Appellants contend the use of common uniforms, emblems, books and awards in the scouting program, a national insurance program, issuance of the national membership card and other printed materials locally, as well as other indicia of a relationship between BSA and the local council, create a manifestation of authority upon which an innocent third party might reasonably rely.

Appellants fail, however, to produce any evidence that BSA manifested that it had direct 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. On the contrary, the Boy Scout Handbook clearly provides, “what the troop does is planned by the patrol leaders’ council.” The organizational structure of the BSA [**18] leaves the control of the specific activities at the level closest to the individual troop. Appellants have produced no direct or circumstantial evidence to suggest that in this case BSA manifested control.

In summary, we conclude that the district court properly granted summary judgment in favor of the Boy Scouts of America and the United States. The judgment of the district court is affirmed.

When a training agency decides it is more important than its instructor members or, worse, the training agency helps the plaintiff sue its own members

Posted: December 17, 2014 | Author: Recreation Law | Filed under: Scuba Diving | Tags: Attorney Client Privilege, Attorney Privilege, Bear Lake Aquatic Base, Blue Water Scuba, Boy Scouts of America, BSA, Discover Scuba Course, Great Salt Lake Council, PADI, Privilege, Professional Association of Dive Instructors | 8 Comments

This is rare and should not be viewed as common in the industry. At the same time, This is an outrage and this agency needs new directors, new officers and a new board…..NOW!

Most importantly, the training agency lied to its members, continues to lie to its members and requires them to provide information to the agency that they claim is confidential and protected that is NOT.

Privilege is protection afforded by the US constitution that allows a client to say anything and everything to his or her attorney. Privilege also applies to communications between a patient and a physician and a person and his clergy. No court can compel the attorney, physician or priest to say what they have been told.

This is a sacred right as well as a legal issue. It allows the attorney to prepare the best defense or claim because they know everything. It allows a physician to provide the best care because they know everything. It allows a clergy to provide comfort and the person to receive forgiveness because the clergy knows everything.

There is one major exception to the law that applies to patients who have injuries from gun shots. All medical personnel are required to report this to law enforcement in most states. What is said by the patient is not reported, just the type of injury.

Without privilege, an attorney would not know how to prosecute or defend a case, and that is a right guaranteed by the US Constitution. Without privilege, a person might not see their physician or be defended by their attorney. Without privilege, a sinner might never receive absolution. Privilege is a right that is given by a higher protection than any other law or right by state or federal governments except the freedoms of the constitution.

Privilege is limited in its scope. The information must be provided by the person to the professional: clergy, doctor or lawyer. It must be specific to the professional and be of the nature of the services being offered. The information can only be heard or seen by the professional. It must be done after the incident, if legal in nature, to be privileged. It must be prepared by the client for the attorney, at the attorney’s request. Any waiver or violation of these rules and the privilege is waived, or gone.

No other person, party or organization can hear or see the privileged information. If a person, party or organization does, the privilege is lost. Again, there are exceptions such as employees of the attorney. Even improper handling of the information or possible access to the information can waive privilege. Courts have ruled handing privileged information to a third party, who was able to see the information waives privilege. Having a third party over hear the communication waives privilege. Handing the information to your insurance company or training agency before, as, or any time after an incident waives privilege.

That means you cannot take a document prepared for an insurance company and give it to your attorney and call it privileged. That means you cannot prepare a report for your attorney and give a copy to your insurance company. Once it leaves your hands and goes to anyone else other than the attorney the privilege is lost. Any document prepared prior to the incident also has no privilege unless specifically prepared in anticipation of litigation by your attorney.

How that got screwed up in a scuba diving case.

(Parentheses Surround the name of the document from which the information or the quote is taken. There are a lot of documents in this case, and discovery is ongoing.)

Simplified Version of the Facts

David Tuvell was participating in a Professional Association of Scuba Instructors (PADI) Discover Scuba Diving program at the Bear Lake Aquatic Base, which is owned by the Great Salt Lake Council of the Boy Scouts of America. The dive program was offered by Blue Water Scuba of Logan, Utah and supervised by Corbett Douglas an employee of Blue Water Scuba. Tuvell died during the dive, and his parents sued everyone.

Case

Case Number: No. 1:12CV00128 BCW

US District Court District of Utah, Northern Division

The Parties

Plaintiffs

David Christopher Tuvell, Deceased

Christopher Joseph Tuvell, father of the deceased

Sherry Lynn Tuvell, mother of the deceased

The estate of David Christopher Tuvell

Defendants

Corbett Douglas, Instructor

Boy Scouts of America (BSA)

Blue Water Scuba of Logan, Utah

Bear Lake Aquatic Base

Great Salt Lake Council of the BSA

Professional Association of Diving Instructors (PADI)

PADI Americas, Inc. legal name of PADI

Lowell Huber, owner of Blue Water Scuba of Logan

PADI

PADI was sued because it was a PADI course the deceased was taking at the time. PADI is a training agency that provides training, curriculum and other benefits to and for scuba diving instructors. PADI courses train beginning divers as well as advanced diver and dive instructors. PADI is a mixed membership organization in that it has members who are professional, commercial and non-professional divers.

PADI has a form, the first page of which is pasted below, called the “Incident Report Form.” PADI contractually requires any member of PADI to complete the form and send it to PADI for any incident, injury or fatality. The form states it is “…prepared for the purpose of receiving legal advice or for use in anticipated litigation.” This would imply that the information on the form is protected by privilege. PADI tells its members, they must complete the form and that the information is privileged. See The ABCs of Incident Reporting.

PADI’s position on this issue was set forth on a dive bulletin board. (Dive incident reports [Archive] – Scuba Diving Forum – Diving Social Network) The position was stated on the forum by PADI’s director of legal and risk management.

As was speculated on the bulletin board, any incident reports provided to PADI are considered preapred in anticipation of litigation and are therefore, confidential and not released except on the direction of legal counsel or by court order. [spelling error appeared in the original post]

PADI members are required to file incident reports, even if they were just present on the scene. The report states it is privileged; however, it isn’t. Even worse, as these facts show, PADI allegedly provides the reports to the plaintiff as part of any settlement agreement if it is sued. So PADI, in effect, to protect its own butt, lies to its members, and then helps screw its own members in court.

PADI is not a law firm. PADI is an educational organization. There is no privilege with any document or statement made to PADI by anyone for any reason. A confidential document is still provided to all parties in litigation; it just can’t be given to people, not part of the litigation.

How PADI Mislead and then Pissed off the Court

PADI was a defendant in the case. PADI secretly settled with the plaintiffs in the case. This means the parties worked out an agreement where PADI paid the plaintiffs an amount of money and the plaintiffs released PADI, and dismissed their claims against PADI.

Settlement agreements are signed when the parties agree to settle their dispute and quit suing each other. A settlement agreement in litigation has two parts. The first is the agreement between the parties which outlines the amounts and the terms of the agreement. The second is the motion to dismiss based on the settlement agreement that is filed with the court. The court and the other parties never see the settlement agreement itself. Nor does the motion state anything other than the parties have settled.

The court then dismisses the case. In this case, however, several “odd things” occurred. Odd should be replaced by outright fraudulent things.

First, the settlement agreement was signed but no motion to dismiss PADI was made to the court. The original complaint was then amended, with PADI’s consent and allegedly PADI’s help, to remove most of the claims against PADI, even though PADI had settled ALL claims against it.

Once the motion is filed, the Judge reviews the motion to dismiss and grants the motion 99.999% of the time and dismisses the parties from the case, or if one party is staying, the claims between the parties. As a result, one defendant is gone from the case.

PADI signed a settlement agreement with the plaintiffs. The settlement agreement in part stated:

Claimants further understand and agree that this settlement is a compromise of disputed claims and that payment is not to be construed as an admission of liability on the part of any of the Released Parties who are released herein and by whom liability is expressly denied. Even though PADI is settling, it maintains and believes that Claimants are correct that defendants Blue Water Scuba, Lowell Huber, and Corbett Douglas acted improperly and were the primary if not sole cause of this tragic event. PADI desires and intends to remain a party to this action to the extent the court will allow in order to defend the professional reputation of PADI and to defend and represent PADI employees and agents who may be witnesses in this action. [emphasize added] (PADI-Tuvell Settlement Agreement)

I’ve practiced law for thirty plus years, and I have never seen anything like this. I’ve reviewed or written several dozen settlement agreements, and I have never seen or written anything like this.

PADI and other plaintiffs intended to keep their settlement agreement a secret. However, Utah law requires a settlement agreement releasing one defendant to be turned to the other defendants in discovery. When the plaintiffs’ attorney let it slip during a court hearing that a settlement had been reached with PADI, the other defendants demanded that the settlement agreement be provided to everyone in discovery.

Meanwhile, discovery in the case proceeded and, just before it looked like PADI would be dismissed from the case in accordance with its complete settlement of all the plaintiffs’ claims against it, PADI “inadvertently” produced its Members’ incident reports to the plaintiffs without a discovery request and without first notifying the Members that their confidential reports would be produced. After a few days went by, the attorneys for PADI notified the other parties that the documents had been “inadvertently” produced and asked the documents be destroyed because the Blue Water Defendants might want to claim that they were protected by the attorney-client privilege. (Letter from PADI’s Counsel 10-18-2013, Objections to PADI’s Disclosures.) This is absolute BS. See above information on privilege.

Eventually, the court found out what was going on with the secret settlement. (Order granting Mtn for Sanctions 08-27-2014.) The court granted sanctions (monetary damages) to the remaining defendants because PADI had:

· Not immediately notifying the court of the settlement agreement

· It prolonged the litigation by not leaving the case

· Entering into a secret settlement agreement

· Colluding with the plaintiff to file false and misleading claims post-settlement with the court

What unhinges me is this statement.

Plaintiffs and PADI have admitted that PADI insisted that it remain a party to the case, even after PADI and the Plaintiffs had reached a complete settlement of all claims, so PADI could assist the Plaintiffs in proving their claims against the Blue Water Defendants. [emphasis added]

The treachery lies and fraud in this case are unreal.

1. PADI put itself before its own members. This was not a Spock issue were sacrificing one would save the world. This was simply we are going to sacrifice our member for no reason.

2. This is another example of abuse of members by telling them they can protect them by completing forms.

3. PADI lied and deceived its members to collect information about incidents they had no right to have and no right to say was privileged.

Again, this is BS. There is no privilege except between an attorney and the attorney’s client. Anything prepared in anticipation of litigation is prepared for the attorney, no one else. That has been the law since I passed the bar (the test to become an attorney). The attorney can only see the document, no third party, and no non law firm people.

Think you trade association represents you? You better make sure it does.

Do Something

At the very least let, PADI know. I suggest you join another association or form a new one.

NEVER EVER FILL OUT ANY INCIDENT REPORT FORM FOR ANYONE EXCEPT YOUR ATTORNEY.

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Gomes v. Boy Scouts of America, et al., 2013 N.Y. Misc. LEXIS 4622; 2013 NY Slip Op 32453(U)

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The Boy Scouts of America are not liable because they owed no duty, they did not own the camp. Negligence requires a duty, and no duty exists if you are not the owners, manager, supervisor or someone who is liable.

Posted: April 14, 2014 | Author: Recreation Law | Filed under: New York, Summer Camp | Tags: Boy Scout, Boy Scouts of America, BSA, Northern New Jersey Council, Path, Scout, Scout Leader, Scout Troop, Showers, United Methodist Church | 4 Comments

The BSA was dismissed because the plaintiff was unable to prove the BSA supervised, owned or managed the camp where he was injured. The BSA had no custody or control of the camp. The plaintiff also failed to argue that a rule, policy, regulation or procedure of the camp had been violated.

Date of the Decision: October 9, 2013

Plaintiff: Davide E. Gomes

Defendant: Boy Scouts of America, et al.,

Plaintiff Claims: failure to keep the area safe, in good repair, well-lit and free from obstruction or defect and supervise him and the other scouts

Defendant Defenses:

Holding: For the defendant Boy Scouts of America

The plaintiff, a 13-year-old Boy Scout fell leaving the shower area at a BSA council camp. He sustained injuries and sued the Boy Scouts of America and other parties.

The Boy Scouts of America moved for a dismissal claiming they were not the owners, in control of, or supervisors of the camp. The camp was owned by the Northern New Jersey Council, BSA. The Northern New Jersey Council is a separate legal entity from the Boy Scouts of America.

There was disputed testimony, whether the plaintiff was running (from witnesses) or walking along the path where he fell. It was lit inside the shower area but not lit outside. The plaintiff had a headlamp with him. During discovery, the plaintiff admitted he did not remember what happened that caused him to fall.

The BSA moved for summary judgment, which was granted by the trial court leading to this appeal.

Summary of the case

The arguments in the case are simple. Did the Boy Scouts of America own, manage, supervise or run the camp or was the camp owned by a third party. The court referred to the legal phrase, did the BSA have “custody and control” of the camp. A Boy Scout Council is a separate and distinct entity from the Boy Scouts of America. The Boy Scouts of America grants a charter (sort of like a license) to promote and use the Boy Scout program to the youth in the council’s geographic area. Boy Scout councils own camps like this one where the plaintiff was injured. The title on the deed is Northern New Jersey Council, Boy Scouts of America, not Boy Scouts of America.

The court looked at several other cases, which found the same way.

…BSA not liable for alleged negligence of charter BSA Council as there was no agency relationship between it and Council, and it lacked requisite supervision, direction, or control over adult leader who had custody of Scouts during trip at issue….

…where plaintiff died while on Scout trip, BSA granted summary judgment as it exercised no supervisory control over troop or adult leaders who accompanied scouts on trip….

The court also quoted a decision where a Council was not liable for the acts of a volunteer because the Council did not have control over the Scoutmaster. “…absent evidence that Council had supervision or control over day-to-day activities of Scout troop or scoutmaster, it could not be held liable for scoutmaster’s alleged negligent supervision…”

What caught my eye in this decision was this statement by the court.

Here, there is no issue of very young campers being unsupervised or placed in risky circumstances as plaintiff and his fellow scouts were all teenagers and there is no evidence that any camp policy was violated or that BSA had any control over the camp’s operation.

Here the court might have ruled differently if it had found that the policy of the camp had been violated.

So Now What?

The first issue is agency or ownership. The Boy Scouts of America were not liable to the camper because the BSA did not own, supervise or manage the particular piece of property where the scout was hurt. You can’t sue someone for negligence, unless they owed a duty to you. If you don’t own, manager or supervise the place where the plaintiff was injured you can’t be negligent because you owe no duty to that person.

Of greater interest is the fact the camp had no policies that were violated, which lead to the injury of the plaintiff. As a camp director of a BSA, GSA or any other camp or operation, you need to understand that the rules, regulations, policies and procedures that you write for your camp are going to be used as the rule, the standard, against which you will be judged at trial.

Don’t write rules, policies, regulations, or policies you can’t live up to.

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Moore v. Boy Scouts of America Los Angeles Area Council, Inc., 2004 Cal. App. Unpub. LEXIS 11180

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

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Be Part of a World Record of People Wearing PFD’s (life jackets)

Posted: May 16, 2013 | Author: Recreation Law | Filed under: Colorado | Tags: Boat, BSA, Life Jacket, Lifejacket, National Safe Boating Council, National Safe Boating Week, Paddlesports, PFD, Scouting, Sea Scout, United States Coast Guard Auxiliary | Leave a comment

CALLING ALL DENVER AREA COUNCIL CUB SCOUTS, BOY SCOUTS, VARSITY TEAMS, VENTURING CREWS AND SEA SCOUTS SHIPS —

National Safe Boating Council (Photo credit: Wikipedia)

YOU ARE INVITED TO COME JOIN THE COAST GUARD AUXILIARY AT CHATFIELD STATE PARK, SATURDAY, MAY 18, @ THE SOUTH MARINA RAMP AREA

TO HELP SET A NEW WORLD RECORD OF PEOPLE WEARING LIFE JACKETS.

This event is the kickoff to National Safe Boating Week, May 18-24, 2013, by the National Safe Boating Council. All Scouts in full uniform (bring your life jacket with you though) will be admitted at the Park’s entrance on Saturday morning for this photo opportunity. Arrive prior to 11:45 a.m. to allow time for parking. Gather by 11:45 a.m. at the grassy area adjacent to the South Marina ramp area. There will be Auxiliary signs posted for your convenience. A group photo, like the one above, will be taken at Noon and submitted later to the National Safe Boating Council so they can add up the numbers. LET’S BREAK 4,000 THIS YEAR!

Auxiliarists will be on hand to answer questions from scouts and parents about Recreational Boating Safety as well as be available for vessel safety checks on any and all boats you or your unit might be using this boating season. The Auxiliary hopes to have their Patrol Boats in the water on Saturday as well. Scouts would be allowed to view these facilities and ask questions about what the Auxiliary members do while on patrol on our reservoirs. (However, U.S.C.G. regulations prohibit anyone other than Auxiliarists be on board these facilities. Sorry Scouts.)

Any questions or concerns please call Amy McNeil at (303) 973-6207. Hope to see you all there.

English: United States Coast Guard Chief Director Auxiliary (“The Director of the Auxiliary is the direct representative of the Commandant of the United States Coast Guard to the United States Coast Guard Auxiliary” (Title 14 United States Code Chapter 23) (Photo credit: Wikipedia)

You cannot be liable for what you do not control or what volunteers do

Posted: January 21, 2013 | Author: Recreation Law | Filed under: California, Camping | Tags: Boy Scout, Boy Scouts, Boy Scouts of America, BSA, Eagle Scout, Guy Lines, Inc., Los Angeles, Los Angeles Area Council, Premises Liability, Recreation, Scout, Tent Lines, Volunteer | 4 Comments

It is also hard to be liable for not watching where you are walking

This case stems from injuries received when a volunteer was setting up a tent and fell over one of the guy lines for the tent.

The plaintiff was a volunteer and with other volunteers was setting up a large tent at a Scout Camp. The camp was owned by the Los Angeles Area Council, Inc. which was granted a charter by the Boy Scouts of America to offer the Scouting program to local youth. The tent was a large military wall tent, similar to what you would see on reruns of M*A*S*H.

While setting up the tent, another volunteer asked the plaintiff to get more tent stakes. She walked around the tent, picked up more stakes and while walking back tripped over one of the guy lines holding up the tent. None of the guy lines had been marked with flags or markers to indicate there was a line there and the accident occurred around 7:00 Pm in July. (None are marked in the M*A*S*H reruns either.) The factual issue became whether or not markers or flags should have been used to identify the guy-lines on the tents.

The court went through and clearly identified factual issues the court felt were important.

Moore had not set up the specific pole, rope or stake upon which she tripped.

The ropes coming off the tent were at varying angles and pitches. The ropes varied in length, de-pending upon location. There were no flags or markers on the ropes.

Before this date, Moore had never been involved in setting up or taking down this tent or this type of tent. However, in years past, Moore had used rope or flags to mark the guy ropes on this tent to make the ropes more visible.

Before Moore fell, neither Moore nor any of the other adult volunteers saw anything they considered unsafe or dangerous.

In the past, some of the adult volunteers had used markers (e.g., cloth or fluorescent plastic tape) to make ropes more visible in scout camps and in non-scout camping situations. In prior years, this tent had been used in the Boy Scout camp, and flags had been used to mark the ropes. It is unclear if markers were used each time the tent was used.

The plaintiff argued the BSA did not have a policy of marking guy lines with markers or flags.

The plaintiff sued for premises liability and negligence. The premises liability claim was based on negligently setting up a tent without guy lines and the negligence claim for not using reasonable care when setting up tents by not using markers on guy-lines.

The Boy Scouts filed a motion for summary judgment based on the fact there was no triable issues, no real legal claims, which was granted and the plaintiff appealed.

So?

The plaintiff’s main arguments were supported by its expert an ergonomist who was a human factors and safety consultant. (This has me confused too, as to why an ergonomist (whatever) has any knowledge of setting up a tent.) The ergonomist said that that groups in Virginia, Australia and Louisiana has policies on markers on tent lines.

The court first looked at the premises liability claim. A premises liability claim is based on a dangerous condition on land. The owner of land is liable for “only for hazardous conditions of which the possessor had actual or constructive knowledge.” The tent was not part of the land so there was no legal basis for a premises liability claim.

The negligence claim was also dismissed by the court. Since the tent was being set up by volunteers, there was no proof that the BSA created the dangerous condition or was aware that a dangerous condition existed. The BSA could not breach a duty of care when the actions which created a dangerous condition were not those of the BSA. Nor does the lack of a policy create a dangerous condition on land. The plaintiff’s argument the court reasoned, where closer to tent issues not land issues.

So Now What?

The legal issues are as stretched in this case as you can get in my opinion. You are setting up a tent by setting up guy lines; you can’t sue when you trip over a guy line.

The claims were incorrect for the facts. The court looked at the issues and could not find any legal connection between the facts, the claims and the law.

However, that does not mean that not watching where you walk might not lead to litigation at some future date that does hold some water.

You can write policies till there are no more trees. In doing so, you’ll probably sink some other group who is trying to save trees. Better to educate than kill a tree. Train your volunteers, prove you trained them, and then explain how the organization they are volunteering for cannot afford lawsuits, stupid ones or regular ones. By that I mean include litigation training; you can’t sue us, in the training you provide.

Explain how it is their job to protect each other as well as to protect the organization. Tell them and prove you told them that you cannot identify all of the risks they may encounter.

You might even have them sign a release.

Plaintiff: Josephine Moore

Defendant: Boy Scouts of America Los Angeles Area Council, Inc.

Plaintiff Claims: Premises Liability and Negligence

Defendant Defenses: not triable issues of fact, no negligence

Holding: Trial court dismissal was affirmed

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Moore v. Boy Scouts of America Los Angeles Area Council, Inc., 2004 Cal. App. Unpub. LEXIS 11180

Posted: January 21, 2013 | Author: Recreation Law | Filed under: California, Camping, Legal Case | Tags: Boy Scout, Boy Scouts, Boy Scouts of America, BSA, Eagle Scout, Guy Lines, Inc., Los Angeles Area Council, Premises Liability, Recreation, Scout, Tent Lines, Volunteer | 4 Comments

Moore v. Boy Scouts of America Los Angeles Area Council, Inc., 2004 Cal. App. Unpub. LEXIS 11180

Josephine Moore, Plaintiff and Appellant, v. Boy Scouts of America Los Angeles Area Council, Inc., Defendant and Respondent.

B170389

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE

2004 Cal. App. Unpub. LEXIS 11180

December 10, 2004, Filed

NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBIT COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 977.

PRIOR HISTORY: APPEAL from a judgment of the Superior Court of Los Angeles County, No. NC040331. Elizabeth Allen White, Judge.

DISPOSITION: Affirmed.

CORE TERMS: scout, tent, rope, volunteer, flag, summary judgment, scout camp, causes of action, hazard, marker, adult, guy ropes, feet, dangerous condition, declaration, triable, conspicuity, warning, premises liability, issues of fact, negligently, military, donated, wall tent, lighting, tripped, visible, manual, pole, trip

COUNSEL: Sedgwick, Detert, Moran & Arnold, Thomas A. Delaney and Steven S. Streger, for Defendant and Respondent.

Desjardins Kelly and Warren D. Kelly, for Plaintiff and Appellant.

JUDGES: ALDRICH, J.; CROSKEY, Acting P. J., KITCHING, J. concurred.

OPINION BY: ALDRICH

OPINION

INTRODUCTION

Plaintiff and appellant Josephine Moore (Moore) was setting up a tent for a scout camp site when she tripped over a rope that was securing the tent. Moore appeals from a summary judgment entered in favor of defendant and respondent Boy Scouts of America Los Angeles Area Council. Inc. (the Boy Scouts). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Following the usual rules on appeal, we construe the facts in the light most favorable [*2] to Moore, the party who opposed the motion for summary judgment. (Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1836.)

On July 8, 2001, Moore was setting up a scout camp site. She and other adult volunteers were erecting a wall tent that was secured by poles and ropes. No employee of the Boy Scouts was involved in setting up the tent. The Boy Scouts did not own the tent. The rectangular tent was oblong, about 24 feet long by 16 feet wide. The poles used to hold up the tent were 6 feet long. Beige ropes were used to secure the tent to the ground and to keep the tent upright.

At about 7:00 p.m., the volunteers had been setting up the tent for 30 to 60 minutes. The tent was about four or five feet from a picnic table. One of the other adults asked Moore to retrieve additional stakes from the opposite side of the tent. Moore walked around the tent and picked-up six or seven stakes. Moore walked near the tent, toward the adult who had requested the stakes. In doing so, Moore tripped over one of the ropes that had already been staked into the ground. The stake holding the rope was two to five feet from the tent and two to five feet from the picnic table.

[*3] Moore had not set up the specific pole, rope or stake upon which she tripped.

The ropes coming off the tent were at varying angles and pitches. The ropes varied in length, depending upon location. There were no flags or markers on the ropes.

During the time the tent was being set up, Moore was aware that some guy ropes were already in place, extending out from corners of the tent.

Before Moore fell, neither Moore nor any of the other adult volunteers saw anything they considered unsafe or dangerous.

The Boy Scout’s manual did not address rope safety and did not instruct that markers were to be used, although [*4] some believed marking the ropes made good sense. The photograph of a wall tent in the manual appeared to have markers on the ropes.

At one Boy Scout volunteer training session held a few years prior to this accident, volunteers were told to flag tent ropes so no one would trip. The Boy Scouts had no documents relating to the use of warnings on ropes.

The scout camp is planned by volunteers. The Boy Scout district executive, Jim McCarthy, attends the planning meetings.

2. Procedure.

Moore sued the Boy Scouts. The complaint stated two causes of action.

In the first cause of action for premises liability, Moore alleged that the Boy Scouts “negligently maintained, managed, controlled, and operated the Scout Camp, in that the guy ropes attached to a certain tent in the Scout Camp were unmarked with flags, or with anything, and were obscured from view without some kind of flag, marker, or other warning, owing to their color, size and geometry, location, time of day, and other factors, which [the Boy Scouts] knew, or in the exercise of reasonable care should have known, constituted a dangerous condition and unreasonable risk of harm of which [Moore] was at all times . . . [*5] unaware. [The Boy Scouts] negligently failed to take steps to either make the condition safe or warn [Moore] of the dangerous condition, all of which caused [Moore] to trip and fall on one of the guy ropes, and to suffer the injuries and damages hereinafter described.”

In the second cause of action for negligence, Moore alleged that the Boy Scouts failed to “use reasonable care in the construction, maintenance, management, and control of the Scout Camp, including but not limited to placing flags or some other kind of marker or warning to identify and call attention to the presence and location of the guy ropes surrounding the tent tarp. [P] . . . [The Boy Scouts] knew or should have known that the construction of the Scout Camp was likely to create during the construction a risk of harm to those who were working on and around the Scout Camp unless special precautions were taken, in that, among other things, guy ropes, which were obscured from view . . . would be emanating from the tent, unmarked and unguarded, in a fashion that constituted a hazard to persons, including [Moore].”

The Boys Scouts brought a motion for summary judgment.

In opposing the motion, Moore submitted [*6] the declaration of psychologist Ilene B. Zackowitz, Ph.D. Dr. Zackowitz declared the following. She was a human factors and safety consultant and a certified professional ergonomist. ¹ She had reviewed the discovery in this case. “When wall tents that are secured with ropes and stakes are used, it is foreseeable that the low conspicuity of the ropes may present a tripping hazard. Despite this foreseeable hazard, [the Boy Scouts have] no stated policy or procedure that addresses the hazard, namely using flags to increase the conspicuity of guy ropes, in the [Scout] Camping merit badge book or the Scouts ‘Guide to Safe Scouting.’ ” “Other Scout Councils recognize the hazard and have policies in place to address the hazard[, such as a troop in Georgetown, Virginia, the Scout Association of Australia, and the Southeast Louisiana Council].” “A stated policy of securing conspicuous flags to the ropes as they are secured to the ground (as opposed to waiting until the entire tent is erected) would greatly increase the conspicuity of the anchoring ropes.” “The incident occurred at dusk such that lighting conditions and contrast were reduced. Under ideal lighting conditions, a rope and [*7] stake would have low contrast with the dirt covered ground surface. . . . There were no visual cues that the hazard was present. . . . A flag on the rope would have provided contrast and would have called attention to the hazard.”

1 Dr. Zackowitz’s curriculum vitae includes information that she serves as a forensic consultant for personal injury accidents, including slips, trips, missteps, and falls, the effectiveness of warnings, visibility, conspicuity, and lighting.

The trial court granted the summary judgment motion. In the order granting summary judgment, the trial court found there were no triable issues of fact because: (1) there was no evidence of a dangerous condition and Dr. Zackowitz’s declaration was not admissible on the issue; (2) the Boy Scouts had no notice of the condition as the only ones present were volunteers, who were not agents of the Boy Scouts; and (3) the condition was open and notorious.

Judgment was entered against Moore, from which she appealed.

DISCUSSION

1. Standard [*8] of review upon a motion for summary judgment.

Following the granting of a summary judgment, we review the moving papers independently to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. (Jackson v. Ryder Truck Rental, Inc., supra, 16 Cal.App.4th at p. 1837.)

A defendant who brings a motion for summary judgment asserting that the plaintiff cannot state a cause of action need only address the theories advanced in the complaint, as the complaint frames the issues. (United States Golf Assn. v. Arroyo Software Corp. (1999) 69 Cal.App.4th 607, 623; Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 886-887; FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381, 282 Cal. Rptr. 508.) “A party cannot successfully resist summary judgment on a theory not pleaded. [Citation.]” (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.)

2. Moore has not demonstrated a triable issue of fact with regard to the two theories presented.

Moore stated two causes of action – premises [*9] liability and negligence. She contends there are triable issues of fact with regard to these causes of action. This contention is unpersuasive.

A cause of action for premises liability generally is based upon a dangerous condition on land. (Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406, fn. 1.) The possessor of land is liable only for hazardous conditions of which the possessor had actual or constructive knowledge. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1203.) Here, the tent was set up by volunteers, who were not the agents of the Boy Scouts. (Young v. Boy Scouts of America (1935) 9 Cal. App. 2d 760, 765 [adult volunteers are not agents of local councils].) There is no evidence the Boy Scouts knew the tent was being set up. Thus, the Boy Scouts neither created the “dangerous” condition nor were aware that it existed.

With regard to the negligence cause of action, Moore alleged that the Boy Scouts negligently constructed, maintained, managed, and controlled the camp. However, the undisputed facts were that the volunteers undertook all of these activities. Thus, Moore failed to establish that the [*10] Boy Scouts breached its duty to her. (Cf. Ortega v. Kmart Corp., supra, 26 Cal.4th at p. 1205 [negligence requires duty, breach, causation, damages].)

Moore argues that notice of the condition is irrelevant as liability “is not based on acts of the volunteers who erected the tent, but on the policy (or lack thereof) of the [Boy Scouts] relating to tent safety, as well as the fact that [the Boy Scouts] provided a tent with inconspicuous ropes and no flags.” These arguments are based primarily upon (1) statements made by some of the volunteers who said that the past they had marked the ropes to make them more visible, (2) comments by Moore’s expert (Dr. Zackowitz), and (3) Dr. Zackowitz’s reference to other scout manuals.

However, Moore’s complaint, which framed the issues, did not alleged that the Boy Scouts lacked a policy with regard to rope safety, nor did it allege that the Boy Scouts were negligent in supplying a defective tent. (Cf. FNS Mortgage Service Corp. v. Pacific General Group, Inc. (1994) 24 Cal.App.4th 1564, 1572 [discussing negligent undertaking].)

Further, there is an evidentiary problem with Moore’s argument [*11] relating to the Boy Scouts supplying the tent. In Moore’s appellate brief, she does not provide a citation to the record to support the statement that the tent had been supplied by the Boy Scouts or that it had been donated to the Boy Scouts by the military. (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1378-1379 [parties have obligation to provide proper citations to record].) ² In Moore’s separate statement of disputed and undisputed material facts, Moore also fails to establish that the tent had been supplied by the Boy Scouts, or that it had been donated to the Boy Scouts by the military. Additionally, Moore testified in her deposition that she did not believe that the Boy Scouts owned the tent. Dr. Zackowitz did state in her declaration that the tent had been donated to the Boy Scouts by the military. However, Dr. Zackowitz does not identify the source of this information and therefore this testimony lacks foundation.

2 In the introduction to her brief, Moore points to the Clerk’s Transcript, pages 226 to 264 for this factual assertion. This is an insufficient citation. (Grant-Burton v. Covenant Care, Inc., supra, 99 Cal.App.4th at p. 1379 [appropriate reference to records must include exact page citations].)

[*12] Summary judgment was properly granted in favor of the Boy Scouts. ³

3 In light of our conclusion, we need not address whether the trial court made evidentiary errors with regard to Dr. Zackowitz’s declaration.

DISPOSITION

The judgment is affirmed. Moore is to pay all costs on appeal.

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

I am speaking at the Outdoor Retailer Outdoor University, Winter Outdoor Retailer, Salt Lake City, UT

Posted: January 10, 2013 | Author: Recreation Law | Filed under: Uncategorized | Tags: Boy Scouts of America, BSA, CPSC, Eagle Scout, Outdoor Retailer, Outdoor University, Scout, Scout Leader, Winter Outdoor Retailer | Leave a comment

Wednesday January 23 at 10:30 AM

How to Bring Scouts Into Your Store: There’s Even an App for That!

You need to know how to work with scouts, how to get scouts into your store. There are 4 million Scouts camping 30 days a year. At present, their options are the BSA Supply and big-box stores. I have 40 years of scouting experience, as an employee & volunteer, and I can show you how to bring those kids into your store. The key is understanding the BSA program & its volunteers. Each week an adult volunteer working develops a program for the kids. If you develop programs that kids enjoy, a volunteer will gladly them to your store. The second issue is advancement. You have experts in your store in the areas that the youth of Scouting need to meet. For $5.00 a year you can be listed as a resource for all the scouts in your area. There’s even an app for it.

Wednesday January 23, at 1:30

The Outdoor Recreation Retail Store: Liability Issues

Retailers are faced with a myriad of problems today. Liability should not be one of them. When looking at a new product at OR the retailer needs to understand whether or not that product can be brought into a store and the issues. Once in a store the retailer needs to understand the disclaimer language on the product and how that needs to be dealt with. Next the retailer must understand any issues in selling the product. A new issue that retailers are going to face is a continuing duty to warn of issues after the sale. Between this new liability issue and recalls either mandated by the CPSC or voluntary, the retailer can be stuck between a rock and hard place or left holding the bag. At the same time, understanding the new duty can create an opportunity to collecting additional information from customers and market to them post sale. Renting outdoor product is always an issue. What information must go with the product when it is rented? What cannot be rented? (Nothing, as long as there is Hertz, we can rent stoves.) What should you do if you are named in a lawsuit?

See you there!

What do you think? Leave a comment.

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Decision explains the liability in New Hampshire of a land owner allowing kids to sled on their land

Posted: October 15, 2012 | Author: Recreation Law | Filed under: New Hampshire | Tags: Boy Scout, Boy Scouts of America, BSA, Daniel Webster Council, Eagle Scout, Jump, New Hampshire, Recreation, Recreational Use, Recreational Use Statute, Scout, Scout Leader, Sledding, snowboarding | Leave a comment

Reed v. National Council of the Boy Scouts of America, Inc., 2010 DNH 18; 706 F. Supp. 2d 180; 2010 U.S. Dist. LEXIS 9236

Decision was a rare case were lawsuit was not brought until after the injured minor reached age 18

In this decision, the plaintiff was an 11-year-old Boy Scout a camping trip. During the camp out the trip went sledding on a hill at a local Boy Scout Council camp. The

camp was not owned by a council that was not the chartering council of the scout troop. While sledding, the boys built a jump. Around lunch time the adult leaders left to go prepare lunch leaving the scouts unattended.

The court noted that this was in violation of the Guide to Safe Scouting, a set of procedures developed by the BSA to keep kids safer. (Safer, kids get hurt, it is part of growing up.)

The plaintiff sued the council that owned the camp, Boston Minuteman Council, the landowner and the National Council, BSA. The National Council grants charters to local groups, councils in a specific geographic area to offer the Scouting program to youth in their area. The local council, in this case Daniel Webster Council issued a charter to the group of parents who ran the troop the plaintiff was part of.

The court took note of the fact that neither volunteers scoutmasters nor the local council Daniel Webster Council.

The plaintiff was only 11 and the youngest scout on the camp out. He had watched other scouts go over the jump and fall. He had gone over the jump once when the scoutmaster was present and fell on his back but did not suffer any injuries. After the adult, volunteers left the area the plaintiff went over the jump again breaking his leg.

Summary of the case

The case has two major parts in the decision. The first is the decision over the land owner’s liability. The second is a motion in limine over the future or potential earnings and medical bills of the plaintiff. For the purpose of this article, the second part of the discussion will be ignored because it is not relevant.

The first point of interest in this decision is one sentence. The plaintiff did not sue until after he had turned age 18. Under the law a minor, someone under the age of 18 can sue by and through their parents in most states, any time after their injury, or they can wait until they turn age 18 and sue then. The parental lawsuit has a statute of limitation, in NH two years, because it is an adult suit on behalf of the minor child. The minor child when he reaches the age of majority, 18, then also has two years to sue after turning age 18.

The defendant land owner filed this motion for summary judgment based on the New Hampshire Recreational Use statute and fact the risk was an open and obvious danger.

The New Hampshire recreational use statute protects land owners from lawsuits brought by people who are using the land for free. The exception to the rule is if the injury to the plaintiff was caused intentionally by the land owner.

508:14 Landowner Liability Limited.

I. An owner, occupant, or lessee of land, including the state or any political subdivision, who without charge permits any person to use land for recreational purposes or as a spectator of recreational activity, shall not be liable for personal injury or property damage in the absence of intentionally caused injury or damage.

II. Any individual, corporation, or other nonprofit legal entity, or any individual who performs services for a nonprofit entity, that constructs, maintains, or improves trails for public recreational use shall not be liable for personal injury or property damage in the absence of gross negligence or willful or wanton misconduct.

III. An owner of land who permits another person to gather the produce of the land under pick-your-own or cut-your-own arrangements, provided said person is not an employee of the landowner and notwithstanding that the person picking or cutting the produce may make remuneration for the produce to the landowner, shall not be liable for personal injury or property damage to any person in the absence of willful, wanton, or reckless conduct by such owner.

The plaintiff argued the defendant land owner should be held liable because only scouts were allowed on the land; therefore, the land was not open to the public, part of the statute. Court held that the statute had latitude or a land owner would lose all control over his or her land. The court held that the landowner could not be held liable because it was protected by the New Hampshire recreational sue statute.

The second defense brought by the landowner was the “open and obvious” defense.

“a defendant generally has no duty to warn and instruct a plaintiff of obvious dangers about which the plaintiff’s knowledge and appreciation equal the defendant’s.”

The “open and obvious” defense is similar to an assumption of risk defense. If you can see or understand the dangerous situation on the land, then the landowner has no duty to warn you of the dangers.

The open and obvious defense requires that the dangerous condition be recognizable by the reasonable person. In the case of a minor the reasonable person test is changed to a reasonable person of the same age, intelligence and experience. A jump created by the other youth would have been obvious to the plaintiff even at age 11. Jumps are made to throw people into the air. Many courts have found that sledding and snowboarding over jumps is something a person of the plaintiff’s age, intelligence and experience should recognize so the court found that the defendant did not owe a duty to warn of the dangers of sledding or snowboarding over a jump.

So Now What?

This is an interesting and odd case. Not suing the local council or the scoutmasters is confusing. Waiting until the plaintiff turned 18 is even more confusing.

However, you can gain a few things from this case.

1. If you are a volunteer unit leader understand the rules by which the parent organization expects you to operate and do not violate those rules.

2. If you are a landowner who knows that people use your land for free without charging them for it, do two things.

a. Make sure your state recreational use statute is broad enough to protect you from litigation.

b. Make sure your liability policy provides you with coverage for allowing people to use your land.

Please, do NOT stop people from using your land, Please!

What do you think? Leave a comment.

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For more on Gross Negligence see Good Release stops lawsuit against Michigan’s bicycle renter based on marginal acts of bicycle renter or New Jersey upholds release for injury in faulty bike at fitness club.

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Reed v. National Council of the Boy Scouts of America, Inc., 2010 DNH 18; 706 F. Supp. 2d 180; 2010 U.S. Dist. LEXIS 9236

Posted: October 15, 2012 | Author: Recreation Law | Filed under: Legal Case | Tags: Boston, Boy Scouts of America, BSA, Daniel Webster Council, Eagle Scout, New Hampshire, Scout, Scout Leader | Leave a comment

Reed v. National Council of the Boy Scouts of America, Inc., 2010 DNH 18; 706 F. Supp. 2d 180; 2010 U.S. Dist. LEXIS 9236

Brahms Reed v. National Council of the Boy Scouts of America, Inc. and Boston Minuteman Council, Inc.

Civil No. 08-cv-45-JL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

2010 DNH 18; 706 F. Supp. 2d 180; 2010 U.S. Dist. LEXIS 9236

February 3, 2010, Decided

COUNSEL: [**1] For Brahms Reed, Plaintiff: John W. Laymon, LEAD ATTORNEY, PRO HAC VICE, Laymon, John W. Law Offices, Boston, MA; Francis X. Quinn, Jr., Boynton Waldron Doleac Woodman & Scott, Portsmouth, NH.

For National Council of the Boy Scouts of America, Inc., Defendant: Jonathan M. Shirley, Devine Millimet & Branch PA (Manchester), Manchester, NH.

For Boston Minuteman Council, Inc. BSA, Defendant: Michael J. Mazurczak, LEAD ATTORNEY, PRO HAC VICE, Erin J. M. Alarcon, Melick Porter & Shea LLP, Boston, MA.

JUDGES: Joseph N. Laplante, United States District Judge.

OPINION BY: Joseph N. Laplante

OPINION

[*183] OPINION AND ORDER

This personal injury action raises questions about the liability of a landowner who allows sledding on its property, as well as New Hampshire’s application of the collateral source rule. Brahms Reed has sued the National Council of the Boy Scouts of America, Inc. (the “BSA”) and one of its affiliated entities, the Boston Minuteman Council, to recover for serious injuries he suffered falling off a sled during an outing with another one of BSA’s chartered organizations, Troop 469, headquartered in Portsmouth, New Hampshire. Reed, who was eleven years old at the time, alleges that these injuries occurred because scoutmasters [**2] from the troop failed to supervise him and because Boston Minuteman, who owns the property where Reed’s accident occurred, failed to warn him of the dangers of sledding.

[*184] Boston Minuteman has moved for summary judgment, arguing that the dangers of sledding were obvious, even to an eleven-year old, so it had no duty to warn of them. In the alternative, Boston Minuteman argues that Reed’s claims against it are barred by New Hampshire’s recreational use statute, N.H. Rev. Stat. Ann. § 508:14. BSA, whose own motion for summary judgment was denied in an oral order, ¹ has moved in limine to exclude evidence of Reed’s medical expenses and lost earnings from the upcoming trial. This court has diversity jurisdiction over this action between Reed, a New Hampshire citizen, and the defendants, out-of-state corporations. See 28 U.S.C. § 1332(a)(1).

1 Document no. 28.

After oral argument, the court grants Boston Minuteman’s motion for summary judgment because, as a matter of law, it had no duty to warn Reed of the risks of sledding and, in the alternative, there is no dispute that Boston Minuteman allowed members of the general public to use the land in question for recreational purposes, conferring [**3] immunity under the recreational use statute. As to BSA’s motions in limine, the court rules that (1) Reed cannot recover the medical expenses he incurred before he reached the age of majority in this action, because the financial responsibility for those expenses fell to his mother, who is not a party here, (2) under the collateral source rule, Reed may introduce evidence of any post-majority medical bills, even if they were “written off” by his providers as a result of their agreements with his insurers, and (3) Reed cannot recover future lost wages because he lacks the necessary expert testimony discounting those sums to net present value.

I. Background

The facts relevant to the pending motions are more or less undisputed. At the beginning of the 2000-2001 school year, when Reed was eleven years old, his mother registered him to participate in scouting activities with Troop 469, which had been organized by a group of parents at Portsmouth Middle School. The troop was what the BSA refers to as a “chartered organization,” meaning that the parents had received a charter from the BSA that entitled the troop to make use of BSA emblems, uniforms, scouting manuals, and other literature. Under [**4] the charter, though, the troop retained “considerable flexibility in determining what portions of the Scouting program should be emphasized in [its] activities.” For example, BSA exercised no authority over the troop’s day-to-day activities or the selection, training, or supervision of its scout leaders.

Even the decision to issue the charter to Troop 469 was not made by the BSA, but by Daniel Webster Council, a non-profit organization itself chartered by the BSA. Like the BSA, the council had no involvement in the troop’s day-to-day operations or the selection of its scout leaders. The council did, however, provide some training to Troop 469’s adult scoutmaster at a weekend course covering subjects like leading a troop, organizing activities, and handling emergencies. For reasons that are not apparent from the record, neither Troop 469 nor the Daniel Webster Council was named as a defendant here.

In January 2001, Troop 469 embarked on an overnight camping trip to T.L. Storer Camp in Barnstead, New Hampshire, a facility owned by defendant Boston Minuteman. Reed was the youngest scout to make the trip; the boys were joined by their scoutmaster and assistant scoutmaster, both adults with [**5] minor sons in the [*185] troop. While T.L. Storer charges for the use of its cabins–and Troop 469 had to pay a “facilities fee” to use them–members of the general public who wish to use the property for recreational purposes are allowed to do so for free.

The morning after their arrival, the scouts, accompanied by their scoutmasters, began sledding and snowboarding down a hill at the camp. At some point, the boys began building a jump out of snow near the bottom of the hill; at some later point, both the scoutmaster and the assistant scoutmaster returned to the cabins to begin preparing lunch, leaving the scouts without adult supervision. This was done in derogation of the BSA’s Guide to Safe Scouting, which provides that “winter activities must be supervised by mature and conscientious adults (at least one of whom must be age 21 or older) who understand and knowingly accept responsibility for the well-being and safety of the youth in their care . . . . Direct supervision should be maintained at all times by two or more adults when Scouts are ‘in the field.'” Nobody from Boston Minuteman warned the scouts of the dangers of sledding or snowboarding, and there were no signs to that effect [**6] posted anywhere at T.L. Storer.

Before the scoutmasters left, many of the scouts were sledding over the jump, while either sitting or standing on toboggans. During this period, Reed noticed that some of the other scouts had stumbled, but not fallen, in attempting the jump while standing. When Reed first attempted the jump while standing, he slipped and landed on his back, but was not hurt.

After the scoutmasters left, Reed attempted the jump a second time while standing. This time, he landed awkwardly, breaking his right leg and injuring the growth plate. This caused Reed’s right leg to stop growing at the same rate as his left leg, necessitating a number of corrective surgeries and other interventions, the vast majority of which occurred while he was still a minor. For reasons that are not apparent from the record, this action was not brought until after Reed had reached the age of majority. See N.H. Rev. Stat. Ann. § 508:8 (tolling the limitations period on actions by a minor until two years after he reaches the age of majority).

II. Analysis

A. Boston Minuteman’s motion for summary judgment

[HN1] Summary judgment is appropriate where the “pleadings, the discovery and disclosure materials on [**7] file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In making this determination, the “court must scrutinize the record in the light most flattering to the party opposing the motion, indulging all reasonable inferences in that party’s favor.” Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003).

Boston Minuteman moves for summary judgment on two independent grounds: first, that Reed’s claim against it is barred by New Hampshire’s recreational use statute and, second, that Boston Minuteman had no duty to warn Reed of the risks of sledding because those risks are obvious, even to an eleven-year old. Boston Minuteman is correct on both counts.

1. The recreational use statute

[HN2] The New Hampshire recreational use statute provides that “[a]n owner . . . who without charge permits any person to use land for recreational purposes . . . shall not be liable for personal injury . . . in the absence of intentionally caused injury or damage.” N.H. Rev. Stat. Ann. (“RSA”) § 508:14, I. The New Hampshire Supreme Court has interpreted the phrase “any person,” as it appears [**8] here, to mean [*186] “any person as a member of the general public. Thus, for RSA 508:14, I to grant immunity, private landowners must permit members of the general public to use their land for recreational purposes.” Estate of Gordon-Couture v. Brown, 152 N.H. 265, 271, 876 A.2d 196 (2005) (citation omitted).

Reed acknowledges that he is seeking to hold Boston Minuteman liable, as the owner of the T.L. Storer Camp, for personal injury that was negligently, as opposed to intentionally, caused. He argues, however, that § 508:14 does not apply because Boston Minuteman does not “permit members of the general public to use T.L. Storer for recreational purposes.” As noted above, members of the general public who wish to use T.L. Storer for recreational purposes are allowed to do so free of charge, according to an affidavit submitted by a Boston Minuteman executive. To attempt to dispute this, Reed relies on solely on the testimony of the T.L. Storer “campmaster,” that “[o]nly Boy Scouts and Cub Scouts can stay at the camp.” ²

2 Reed also relies on the campmaster’s testimony that, during Troop 469’s trip to T.L. Storer, the only people using the grounds were scouts and their leaders. That does not serve to dispute [**9] Boston Minuteman’s statement that it permits not only scouts, but members of the general public, to use the property.

A limitation on who can “stay at the camp,” though, is not the same as a limitation on who can “use [the] land for recreational purposes,” which is the relevant inquiry under the statute. Gordon-Couture, 152 N.H. at 271. As one of the decisions cited approvingly in Gordon-Couture makes clear, [HN3] “a landowner need not allow all persons to use the property at all times” for recreational use immunity to apply. Snyder ex rel. Snyder v. Olmstead, 261 Ill. App. 3d 986, 634 N.E.2d 756, 761, 199 Ill. Dec. 703 (Ill. App. Ct. 1994) (citing Johnson v. Stryker Corp., 70 Ill. App. 3d 717, 388 N.E.2d 932, 934, 26 Ill. Dec. 931 (Ill. App. Ct. 1979)); see also Holden ex rel. Holden v. Schwer, 242 Neb. 389, 495 N.W.2d 269, 274 (Neb. 1993) (“a landowner need allow only some members of the public, on a casual basis, to enter and use his land for recreational purposes to enjoy the protection” of recreational use immunity). Rather, a landowner may place certain “limitations on the use of the property, such as age restrictions, or hours of use,” without forfeiting the protections of the statute. Johnson, 388 N.E.2d at 935.

Otherwise, owners would have to relinquish all control of their [**10] premises in order to attain recreational use immunity, with the likely result that most would simply declare their property completely off-limits to the public. See id. That result would contravene what the New Hampshire Supreme Court has identified as the purpose of recreational use immunity statutes, i.e., to encourage the opening of private lands for public recreation. Gordon-Couture, 152 N.H. at 268-269. Because Boston Minuteman indisputably “permit[s] members of the general public to use [T.L. Storer] for recreational purposes,” id. at 271, the recreational use statute applies, despite the fact that only scouts are permitted to spend the night at the camp. ³

3 Furthermore, Troop 469’s payment of a “facilities fee” for the use of the cabins also does not negate Boston Minuteman’s immunity. The court of appeals has held that, [HN4] as used in New Hampshire’s recreational use statute, “‘charge’ means an actual admission fee paid for permission to enter the land for recreational purposes,” not a fee for a specific service available after entering. Hardy v. Loon Mt. Recreation Corp., 276 F.3d 18, 20-21 (1st Cir. 2002). Indeed, one of the cases cited for this proposition in Hardy specifically [**11] ruled that a per-person, per-night charge to Boy Scouts staying overnight in a building on government property had no effect on the government’s recreational use immunity, since there was no charge to enter or use the property itself. Wilson v. United States, 989 F.2d 953, 956-57 (8th Cir. 1993).

Relying on Soraghan v. Mt. Cranmore Ski Resort, Inc., 152 N.H. 399, 881 A.2d 693 [*187] (2005), Reed points out that recreational use immunity does not apply when “the injured entrant was on the property for a purpose related to the landowner’s business for which the landowner customarily charges.” Id. at 403. In Soraghan, the New Hampshire Supreme Court ruled that the statute did not bar a claim against the defendant ski resort by a plaintiff who had fallen on its property while walking to her car to retrieve her ski equipment, even though, because she had entered the property that day to watch her daughter participate in a race, the plaintiff had not paid the resort’s entrance fee. Id. at 400-04. The court reasoned that “[w]here [**12] the landowner customarily charges for access to its recreational facilities, the property is not being held open without charge to any member of the general public for recreational use.” Id. at 403.

Here, though, it is undisputed that Boston Minuteman does not “customarily charge for access to its recreational facilities” at T.L. Storer, so Soraghan is inapposite. ⁴ Boston Minuteman is entitled to summary judgment on the ground that New Hampshire’s recreational use statute bars Reed’s claim.

4 Reed nevertheless argues that Boston Minuteman allows access to the camp only “to further scouting objectives,” which is consistent with Boston Minuteman’s “business purposes” and therefore tantamount to a “charge” because “consideration need not be monetary.” Assuming, dubitante, that a “charge” for purposes of § 508:14 includes a non-monetary condition on an entrant’s “objectives,” there is simply no evidence that Boston Minuteman imposes any such restriction on the entrants to T.L. Storer. Cf. Wilson, 989 F.2d at 957-58 (rejecting the argument that recreational use immunity does not apply because the government’s “purpose in allowing admission to [an open military installation] is to develop [**13] public goodwill” in the armed services, at least without evidence that visitors to the property were “encouraged in any way to join the Army”).

2. The open and obvious danger doctrine

Boston Minuteman is also entitled to summary judgment on the alternative ground that it had no duty to warn Reed of the dangers of sledding. [HN5] Whether a duty exists in a particular set of circumstances is a question of law to be decided by the court. See, e.g., Everitt v. Gen. Elec. Co., 159 N.H. 232, 979 A.2d 760, 762 (N.H. 2009). [HN6] As a matter of law, “a defendant generally has no duty to warn and instruct a plaintiff of obvious dangers about which the plaintiff’s knowledge and appreciation equal the defendant’s.” Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 422, 807 A.2d 1274 (2002). Thus, in the case of a dangerous condition on the landowner’s premises, “the fact that the condition is obvious is usually sufficient to apprise [the plaintiff], as fully as the possessor, of the full extent of the risk involved in it,” relieving the landowner of any duty to warn. Dunleavy v. Constant, 106 N.H. 64, 67, 204 A.2d 236 (1964) (quoting Maxfield v. Maxfield, 102 N.H. 101, 103-04, 151 A.2d 226 (1959)).

In this context, “‘[o]bvious’ means that [**14] both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment.” Restatement (Second) of Torts § 343A(1) cmt. b (1965). Because Reed was a child at the time of the accident, however, he is not held to the standard of conduct of “a reasonable man,” but rather “a reasonable person of like age, intelligence, and experience under the circumstances.” Id. § 283A; accord Dunleavy, 106 N.H. at 67 (noting [*188] that children “may fail to observe conditions which an adult might reasonably be expected to discover”).

There is no question that the danger of sledding over the jump while standing would have been apparent to a reasonable person of Reed’s age, intelligence, and experience, particularly in light of the circumstances. Reed had seen other scouts stumble in attempting to negotiate the jump while standing and, when he tried it himself the first time, slipped and landed on his back. ⁵ This is not a case, then, where the nature of the hazard could reasonably have been overlooked, even by a child. Cf. Wheeler v. Monadnock Cmty. Hosp., 103 N.H. 306, 308, 171 A.2d 23 (1961) (ruling that a retaining [**15] wall “was a known dangerous condition not likely to be appreciated by young children” where “from the side from which [the child] approached it had the appearance of a low curb”); Dunleavy, 106 N.H. at 68 (refusing “to assume that the risk of falling over [a] jack-handle in the dark was one a child of six would appreciate even though he might be assumed to appreciate the risk of falling over it in the daylight”).

5 There is no evidence that the T.L. Storer campmaster or anyone else from Boston Minuteman knew that the scouts had built the jump, or that any similar activity had occurred on the property previously. Thus, while Reed argues that the obvious nature of a danger does not negate the property owner’s nature to warn of it when the owner “should anticipate the harm despite such knowledge or obviousness,” Restatement (Second) of Torts § 343A(1), there is no evidence that Boston Minuteman should have anticipated such a danger here.

Even aside from Reed’s immediate experience with the jump, moreover, “common experience in sledding suggests that sledding over a hill, mound, or similar terrain has a tendency to cause the sledder to go into the air.” Gould v. United States, 994 F. Supp. 1177, 1183-85 (W.D. Mo.) [**16] (ruling that the danger of injury from sledding over a terrace was open and obvious), rev’d in part, 160 F.3d 1194 (8th Cir. 1998). ⁶ Sledders build and use jumps for the very purpose of “going into the air”–and experiencing the concomitant challenge of trying to land successfully. It is hard to imagine that any sledder (except for perhaps the very young) needs to be told that such success is not guaranteed, and that failure may cause serious injury.

6 While the district court in Gould ruled that neither of the two plaintiffs could recover due to the obviousness of the danger, the appeals court upheld that ruling as to one plaintiff but reversed it as to the other. 160 F.3d at 1197. As the appeals court reasoned, the difference was that, after sledding over the terrace, the first plaintiff had merely “become airborne” but the second plaintiff had been launched at least four feet in the air. Id. at 1196. The appeals court ruled that the second plaintiff “could not reasonably have been expected to discover[] the risk of being propelled more than four feet high,” such that it was not open and obvious. Id. at 1196-97. Here, though, there is no evidence that Reed came off the jump at an [**17] unexpected height or, indeed, higher than he or any of the other scouts had in their previous attempts.

Consistent with this view, courts have generally found the danger of various sledding-related mishaps to be obvious–even to children–and therefore necessitating no warning as a matter of law. See, e.g., Barnett v. City of Lynn, 433 Mass. 662, 745 N.E.2d 344, 348 (Mass. 2001) (“[c]ommon sense dictates that the danger of sledding down stairs leading to a road well traveled by motor vehicles would be open and obvious even to an eleven or twelve year old child”); Mothershead v. Greenbriar Country Club, Inc.. 994 S.W.2d 80, 88 (Mo. App. Ct. 1999) (ruling that the danger of serious injury from sledding into trees at the bottom of a slope was obvious to a 16 year-old); Offringa v. Borough of Westwood, 132 N.J.L. 493, 41 A.2d 18, 20 (N.J. 1945) (ruling [*189] that 18 year-old plaintiffs, “blessed with the understanding and the mentality of the average boy and girl of their age group,” would appreciate the danger of sledding around a barrier and into a street); see also Friedman ex rel. Friedman v. Park Dist. of Highland Park, 151 Ill. App. 3d 374, 502 N.E.2d 826, 834, 104 Ill. Dec. 329 (Ill. App. Ct. 1986) (upholding verdict for defendant landowner on 8-year-old plaintiff’s [**18] claim arising out of her sledding into a fence post because that danger was obvious, particularly in light of the plaintiff’s prior knowledge of the hill); Pitre v. La. Tech. Univ., 673 So. 2d 585, 596 (La. 1996) (relying on the “obvious and apparent” danger of sledding into a utility pole at the bottom of a hill to rule that the property owner had no duty to warn a college student of it).

Accordingly, the court rules that Boston Minuteman had no duty to warn Reed of the danger of sledding over the jump while standing, because that danger would have been obvious to a reasonable person of Reed’s age, intelligence, and experience under the circumstances. On this basis, as well as on the basis of the recreational use immunity statute, Boston Minuteman is entitled to summary judgment on Reed’s failure to warn claim. ⁷

7 While Reed’s second amended complaint alleges that Boston Minuteman “failed to provide adequate safety personnel to assist [him] in obtaining medical assistance[] following his traumatic fall,” he affirmatively disclaimed any such theory against Boston Minuteman in his surreply to its summary judgment motion. Furthermore, Reed essentially conceded at oral argument that he [**19] lacked the expert medical testimony necessary to recover on that theory or, indeed, anything but speculation to support it. Cf. Room v. Caribe Hilton Hotel, 659 F.2d 5, 7-8 (1st Cir. 1981) (upholding direct verdict for defendant on claim for negligent delay in providing medical care in the absence of expert testimony that it caused plaintiff any further physical injury).

B. The BSA’s motions in limine

1. The motions to exclude Reed’s medical bills

The BSA has filed two motions in limine seeking to exclude evidence of Reed’s medical expenses from the upcoming trial. First, the BSA argues that only Reed’s mother–who is not a plaintiff here–can recover for the medical expenses incurred on his behalf before he reached the age of majority. Second, the BSA argues that, insofar as Reed seeks to recover medical expenses he incurred after he reached the age of majority (which appear to amount to no more than $ 1,000 of the nearly $ 70,000 in medical expenses allegedly caused by the sledding accident) he should not be allowed to introduce the medical bills as proof of those expenses, because much of those charges was “written off” by Reed’s providers under their contracts with his insurers.

[HN7] Under [**20] New Hampshire law, “a parent rather than a minor is liable for the minor’s medical or hospital expenses when the minor is living with or supported by his parents. As result, . . . the parent, rather than the child, is entitled to recover the medical expenses . . . incurred on his behalf during his minority due to [an] accident” negligently caused by another. Blue Cross/Blue Shield of N.H.-Vt. v. St. Cyr, 123 N.H. 137, 141, 459 A.2d 226 (1983). So it is Reed’s mother, rather than Reed himself, who has the right to recover against the BSA for the medical expenses, caused by its alleged negligence, that he incurred as a minor; there is no dispute that Reed was living with and supported by his mother during that time. But it is Reed, and not his mother, who is the plaintiff here. ⁸ Accordingly, there is simply no claim in this action for recovery of the medical [*190] expenses incurred on Reed’s behalf while he was a minor. The BSA’s motion to exclude evidence of those expenses is granted. ⁹

8 Because, as noted supra, this case was not brought until after Reed attained the age of majority–and thus nearly seven years after the accident–the statute of limitations had already run on any claim by Reed’s mother. [**21] See, e.g., Garay v. Overholtzer, 332 Md. 339, 631 A.2d 429, 436-40 (Md. 1993) (collecting cases).

9 As Reed suggests in his objection to the motion, he may still introduce evidence of the medical care he received during that time as proof of the pain and suffering and lost enjoyment of life he experienced during that period.

That does not stop Reed from attempting to recover the medical expenses he incurred after he reached the age of majority (though, again, those expenses total only around $ 1,000). Even as to those expenses, though, the BSA argues that Reed may not introduce the corresponding medical bills, because “the medical providers will testify that they agreed to ‘write off’ all amounts in excess of the contract rate” established by their contract with Reed’s health insurers. The BSA argues that the contract rate, rather than the face amount of the bills, is therefore all Reed can recover.

As the BSA acknowledges, this court has rejected similar arguments as at odds with New Hampshire’s collateral source rule. See Aumand v. Dartmouth Hitchcock Med. Ctr., 611 F. Supp. 2d 78, 90-92 (D.N.H. 2009) (Laplante, J.); Williamson v. Odyssey House, Inc., 2000 DNH 238, 1-3 (DiClerico, J.). [HN8] That rule “provides [**22] that ‘if a plaintiff is compensated in whole or part for his damages by some source independent of the tort-feasor, he is still permitted to make full recovery against the tort-feasor.'” Aumand, 611 F. Supp. 2d at 90 (quoting Williamson, 2000 DNH 238, 2 (further quotation marks and bracketing omitted)). Thus, this court has refused “to exclude evidence of the billed cost of medical services” in favor of “the amounts actually paid” in satisfaction of those costs by the plaintiff’s health insurers. Aumand, 611 F. Supp. 2d at 91; Williamson, 2000 DNH 238, 1.

The BSA nevertheless argues that the collateral source rule does not apply to charges billed but later “written off” by a plaintiff’s medical provider, since those amounts were never “paid” by a collateral source or, indeed, anybody. This argument has found favor in several unpublished decisions by the New Hampshire Superior Court, cited by the BSA, that excluded evidence of such “written off” sums. See Taranov v. Vella, No. 05-C-302, slip op. at 2 (N.H. Super. Ct. Aug. 12, 2009) (Lynn, C.J.); Sica v. Britton, No. 05-C-213, 2007 WL 1385661 (N.H. Super. Ct. Feb. 1, 2007) (Houran, J.); Cook v. Morin-Binder, No. 05-C-319, 2007 WL 6624298 (N.H. Super. Ct. Jan. 12, 2007) [**23] (Houran, J.); Debski v. JMC Equities Corp., No. 97-C-1161, slip op. at 5 (N.H. Super. Ct. July 7, 1999) (Sullivan, J.). But there are also a number of other unpublished New Hampshire Superior Court decisions to the contrary, which the BSA does not cite. See Michaud v. Bridges, No. 07-C-055, 2008 WL 4829387 (N.H. Super. Ct. June 30, 2008) (Brown, J.); Veilleux v. Noonan, No. 06-C-207, 2008 Extra LEXIS 60, 2008 WL 6016234 (N.H. Super. Ct. Apr. 7, 2008) (Houran, J.); Gulluscio v. Hall, No. 06-C-0045, 2007 Extra LEXIS 31, 2007 WL 6647429 (N.H. Super. Ct. Oct. 1, 2007) (Mohl, J.); Plummer v. Optima Health-Catholic Med. Ctr., No. 98-C-1010, 2000 WL 35730973 (N.H. Super. Ct. Nov. 13, 2000) (McHugh, J.). ¹⁰

10 It should be noted that the same judge who issued Sica and Cook, which the BSA cites in support of its position, later explained that those orders do not approve “a sweeping proposition of law that only those medical bills actually paid by or for a plaintiff may be claimed at trial,” but simply that “the law permits, in appropriate circumstances as determined on a case by case basis, consideration of write offs by a plaintiff[‘]s health care provider.” Veilleux, 2008 Extra LEXIS 60, 2008 WL 6016234, at *1 n.3. In Veilleux, then, that judge refused [**24] to grant the very same relief the BSA seeks here, i.e., to “bar the plaintiffs from introducing evidence of medical bills in excess of amounts actually paid by a third party and accepted as payment in full by medical providers.” 2008 Extra LEXIS 60, [WL] at *1 (footnote omitted).

[*191] The BSA also relies on cases from other jurisdictions to support its position. See Hanif v. Hous. Auth., 200 Cal. App. 3d 635, 246 Cal. Rptr. 192, 195-97 (Cal. Ct. App. 1988); Coop. Leasing, Inc. v. Johnson, 872 So.2d 956, 958-60 (Fla. App. Ct. 2004); Bates v. Hogg, 22 Kan. App. 2d 702, 921 P.2d 249, 252-53 (Kan. App. Ct. 1996); Moorhead v. Crozer Chester Med. Ctr., 564 Pa. 156, 765 A.2d 786, 790-91 (Pa. 2001). ¹¹ Again, though, there is substantial caselaw to the contrary. See, e.g., Pipkins v. TA Operating Corp., 466 F. Supp. 2d 1255, 1259-62 (D.N.M. 2006); Lopez v. Safeway Stores, Inc., 212 Ariz. 198, 129 P.3d 487, 496 (Ariz. Ct. App. 2006); Mitchell v. Haldar, 883 A.2d 32, 40 (Del. 2005); Hardi v. Mezzanotte, 818 A.2d 974, 985 (D.C. 2003); Olariu v. Marrero, 248 Ga. App. 824, 549 S.E.2d 121, 123 (Ga. Ct. App. 2001); Bynum v. Magno, 106 Haw. 81, 101 P.3d 1149, 1159-60 (Haw. 2004); Wills v. Foster, 229 Ill. 2d 393, 892 N.E.2d 1018, 1033, 323 Ill. Dec. 26 (Ill. 2008); White v. Jubitz Corp., 347 Ore. 212, 219 P.3d 566, 583 (Or. 2009); Haselden v. Davis, 353 S.C. 481, 579 S.E.2d 293, 295 (S.C. 2003); [**25] Papke v. Harbert, 2007 SD 87, 738 N.W.2d 510, 536 (S.D. 2007); Acuar v. Letourneau, 260 Va. 180, 531 S.E.2d 316, 322-23 (Va. 2000); Leitinger v. DBart, Inc., 2007 WI 84, 302 Wis. 2d 110, 736 N.W.2d 1, 13-14 (Wis. 2007).

11 The court notes that, of these cases, only Moorhead in fact supports the BSA’s position here. Cooperative Leasing applied a Florida statute that, in essence, rejects the collateral source rule, reducing a plaintiff’s damages award “‘by the total of all amounts which have been paid for [his] benefit,'” but also providing that “‘benefits received under Medicare . . . shall not be considered a collateral source.'” 872 So. 2d at 959-60 (quoting Fla. Stat. § 768.76). Reasoning that the statute “excludes Medicare benefits as a collateral source because the federal government has a right to reimbursement . . . for payments it has made on [a plaintiff’s] behalf,” the court held that, as used in the statute, the term “benefits received” does not include “the amount that was written off by her medical providers” because “the government’s right to reimbursement does not extend to amounts never actually paid.” Id. Thus, allowing a plaintiff to recover those amounts “would result in a windfall that is contrary to the legislative policy [**26] evidenced by” the statute. Id. New Hampshire, of course, has no such statute, but follows the common-law collateral source rule. In that version, the collateral source rule contemplates just such a windfall to the plaintiff, as discussed infra.

And both Hanif and Bates have since been restricted so as to make them inapposite here. As discussed infra at note 11, the Kansas Supreme Court has clarified that “the Bates decision is limited to cases involving Medicaid” as the third-party payor, so that the collateral source rule does apply to billed amounts written off by any other public or private insurer, including Medicare. Rose v. Via Christi Health Sys., Inc., 276 Kan. 539, 78 P.3d 798, 803 (Kan. 2003). The California Court of Appeals has since clarified that Hanif did not prevent plaintiffs from introducing “evidence of the amounts billed, as they reflected on the nature and extent of plaintiffs’ injuries and were therefore relevant to their assessment of the an overall general damage award.” Katiuzhinsky v. Perry, 152 Cal. App. 4th 1288, 62 Cal. Rptr. 3d 309, 314 (Cal. Ct. App. 2007). Here, in contrast, the BSA wants to exclude evidence of Reed’s medical bills altogether. While Hanif does hold that a plaintiff cannot [**27] recover for medical bills in excess of “the actual amount paid” by a third-party insurer, 246 Cal. Rptr. at 197, this court disagrees with that understanding of the collateral source rule, as explained supra.

The New Hampshire Supreme Court appears to take the majority view. That court has expressly rejected the argument that

the plaintiff cannot recover unless he has paid for the services rendered or [*192] incurred a legal liability therefor. On principle it should make no difference to the defendants whether the payment was made by virtue of friendship, philanthropy or contract with a third party . . . . It is no concern of the wrongdoer whether the bills for medical expenses were paid by an indulgent uncle, a liberal employer or a relief association.

Clough v. Schwartz, 94 N.H. 138, 141, 48 A.2d 921 (1946) (emphasis added). The BSA does not explain, with reference to the cases it cites or otherwise, why it nevertheless should make a difference that a plaintiff’s providers agreed to accept less for their services from third parties paying on the plaintiff’s behalf than the provider would have accepted from the plaintiff himself.

And the vast majority of courts have held that it makes no difference, because–consistent [**28] with the view of the New Hampshire Supreme Court in Clough– [HN9] “the focal point of the collateral source rule is not whether an injured party has ‘incurred’ certain medical expenses. Rather, it is whether a tort victim has received benefits from a collateral source,” and “amounts written off are as much of a benefit” to the plaintiff “as are the actual cash payments made by his health insurance carrier to the health care providers.” Acuar, 531 S.E.2d at 322; see also, e.g., Pipkins, 466 F. Supp. 2d at 1260-61; Lopez, 129 P.3d at 495; Bynum, 101 P.3d at 1156; Wills, 892 N.E.2d at 1030; White, 219 P.3d at 579-80.

Indeed, even if a provider agrees to accept less from the plaintiff himself by “forgiving” all or part of a bill–a scenario identical to a “write-off” in the sense that not all of the billed amount is ever paid by anyone–the collateral source rule would still apply to the forgiven amount, because “the fact that the doctor did not charge for his services . . . does not prevent [the plaintiff’s] recovery for the reasonable value of the medical services.” Restatement (Second) of Torts § 920A cmt. c(3), at 515 (1979). Not only has the New Hampshire Supreme Court cited approvingly [**29] to § 920A of the Restatement in explaining this state’s verison of the collateral source rule, see Moulton v. Groveton Papers Co., 114 N.H. 505, 509, 323 A.2d 906 (1974), that court has recognized that a plaintiff who receives medical care for less than its reasonable value is nevertheless “entitled to recover the full value of the services from the third-party tort-feasor.” Lefebvre v. Gov’t Employees Ins. Co., 110 N.H. 23, 25, 259 A.2d 133 (1969) (noting that, under the collateral source rule, a plaintiff who received medical care with a reasonable value of $ 918 in a military hospital but had to pay only $ 31.50 for it could have recovered $ 918 from the party who injured her).

A number of courts have reasoned that because “write-offs” are the same as free medical services in this sense, the collateral source rule applies to both. See, e.g., Pipkins, 466 F. Supp. 2d at 1260-61; Lopez, 129 P.3d at 495; Bynum, 101 P.3d at 1156; Wills, 892 N.E.2d at 1030-31; White, 219 P.3d at 579-80. ¹² The BSA [*193] and the cases it cites do not question that the collateral source rule encompasses medical services for which the provider collects no fee–as opposed to a reduced fee–nor do they explain why these two materially identical [**30] situations should lead to opposite outcomes.

12 Other courts characterize “write-offs” as flowing from the plaintiff’s insurance policy, reasoning that to deprive the plaintiff of the benefit of the write-offs would be to deprive him of the benefit of his insurance contract in violation of the collateral source rule. See, e.g., Hardi, 818 A.2d at 985; Olariu, 549 S.E.2d at 123; Acuar, 531 S.E.2d at 322. Relying on this analogy, at least one court has reasoned that the collateral source rule applies to write-offs by private insurers (and Medicare, which the court considered to be materially the same as private insurance because it requires enrollees to pay premiums) but not Medicaid. See Rose, 78 P.3d at 806. But this court need not decide here whether New Hampshire would follow that unique approach, because there is no indication in the record that Medicaid was the insurer in question.

Instead, the BSA and most of its authorities rely on comment h to § 911 of the Restatement (Second) of Torts. See Hanif, 246 Cal. Rptr. at 196; Coop. Leasing, 872 So.2d at 958; Moorhead, 765 A.2d at 790; Sica, No. 05-C-213, slip op. at 3; Cook, No. 05-C-319, 2007 WL 6624298, slip op. at 4; Debski, No. 97-C-1161, [**31] slip op. at 5. That comment, entitled “Value of services rendered,” appears in the section of the Restatement defining “Value,” and provides in relevant part that

The measure of recovery of a person who sues for the value of his services tortiously obtained by the defendant’s fraud or duress, or for the value of services rendered in an attempt to mitigate damages, is the reasonable exchange value of the services at the place and time . . . .

. . .

When the plaintiff seeks to recover for expenditures made or liability incurred to third persons for services rendered, normally the amount recoverable is the reasonable value of the services rather than the amount paid or charged. If, however, the injured person paid less than the exchange rate, he can recover no more than the amount paid, except when the low rate was intended as a gift to him.

Restatement (Second) of Torts § 911 cmt. h, at 476-77.

The BSA and its authorities, however, ignore the first sentence of this comment, which makes clear that it applies only in valuing services the plaintiff gave as a result of the defendant’s tort, or that the plaintiff obtained “in an attempt to mitigate damages.” And insofar as medical care necessitated [**32] by the plaintiff’s injury could be considered part of “an attempt to mitigate damages” within the meaning of this comment, see id. § 919(2), at 507, the Restatement elsewhere makes clear that “[t]he value of medical expenses made necessary by the tort can ordinarily be recovered although they have created no liability or expense to the injured person, as when a physician donates his services. (See § 920A).” Id. § 924 cmt. f, at 527. So even if § 911 comment h generally limits the plaintiff’s recovery for the services he obtained from a third party to “the amount paid, except when the low rate was intended as a gift,” then § 924 comment f creates an exception to that rule for “medical expenses.” See Lopez, 129 P.3d at 493-94; Bynum, 101 P.3d at 1159-60; Wills, 892 N.E.2d at 1028; White, 219 P.3d at 581 n.15; Moorhead, 765 A.2d at 795 (Nigro, J., dissenting).

The BSA makes no attempt to reconcile § 924 comment f with its reading of § 911 comment h–in fact, neither the BSA nor any of the cases it cites but one even acknowledges § 924 comment f, and that case, Moorhead, simply declares without explaining that the court finds § 911 comment h “to be more applicable to the instant case.” 765 A.2d at 791 n.4. [**33] The BSA’s proposed reading would nullify not only § 924 comment f, but also § 920A comment c(3), which, again, specifically provides that “the fact that a doctor did not charge for his services or the plaintiff was treated [for free] in a veterans hospital does not prevent his recovery for the reasonable value of the services.” It would rob that provision of all meaning if § 911 comment h indeed limited recovery in this context to “no more than the amount paid” because “the injured person paid less than the exchange rate.” There is no reason to think the New Hampshire [*194] Supreme Court would read the Restatement in this self-contradictory manner. Cf. LaChance v. U.S. Smokeless Tobacco Co., 156 N.H. 88, 97, 931 A.2d 571 (2007) (noting the court’s “practice of attempting to construe statutes that deal with similar subject matter harmoniously”).

The BSA and some of the cases it cites also point out that requiring the defendant to compensate the plaintiff for sums he or she never paid in the first place provides the plaintiff with a “windfall.” See, e.g., Moorhead, 765 A.2d at 790; Taranov, No. 05-C-302, slip op. at 2. But awarding that windfall to the plaintiff, rather than to the defendant, is one of the [**34] principal aims of the collateral source rule. See Aumand, 611 F. Supp. 2d at 91 (citing Restatement (Second) of Torts § 920A cmt. b, at 514). Yet, the BSA protests, when medical charges have been “written off” rather than paid, exempting them from plaintiffs’ recovery does not in fact award any windfall on defendants–“it merely means that they will not have to pay for expenses that have not been incurred.” Taranov, No. 05-C-302, slip op. at 2.

This argument ignores the reality that, as just discussed, when a medical provider agrees to “write-off” an amount it would otherwise charge, that confers just as much of a benefit on the plaintiff (and, if disallowed as an element of damages, would in fact confer just as much of a windfall on the defendant) as if the “written off” amount had been paid by a third party. See, e.g., Acuar, 531 S.E.2d at 322. As the New Hampshire Supreme Court’s decision in Clough teaches, [HN10] the collateral source rule applies to all benefits the plaintiff receives from third parties as a result of his injuries by the defendant, regardless of their nature. 94 N.H. at 141. In other words, the rule “does not differentiate between the nature of the benefits, so long as [**35] they did not come from the defendant or a person acting for him.” Restatement (Second) of Torts § 920A cmt. b, at 514.

Accordingly, the BSA has failed to convince this court that its decisions in Aumand and Williamson were wrong in refusing to exclude evidence of the billed cost of medical services in favor of the amounts actually paid in satisfaction of those costs by the plaintiff’s health insurers. This is not to say, as this court explained in Aumand, that New Hampshire’s collateral source rule bars a defendant from “questioning the face amounts of the medical bills as equivalent to the reasonable value of [the plaintiff’s] medical services,” which, of course, is the proper measure of those damages under New Hampshire law. 611 F. Supp. 2d at 90-92 & n.13. But unless and until this state’s version of the collateral source rule is changed by the New Hampshire legislature or New Hampshire Supreme Court, this court will continue to apply it to billed amounts “written off” [**36] by a plaintiff’s providers, in accordance with existing law here and in the vast majority of other jurisdictions. The BSA’s motion to exclude Reed’s post-majority medical bills from evidence on this basis is denied.

2. The motion to exclude evidence of Reed’s lost wages

Finally, the BSA moves to preclude Reed from offering evidence as to any future lost wages he has suffered as a result of the accident. The BSA points out that, [HN11] under New Hampshire law, “an award for future damages must be reduced to present value and, given the complexity of the modern economic environment, . . . the reduction must be based upon specific economic evidence and not merely upon personal knowledge the jury may or may not possess.” Hutton v. Essex Group, Inc., 885 F. Supp. 331, 334 (D.N.H. 1994). [*195] Furthermore, “the plaintiff bears the burden of coming forward with evidence of the proper rate of discounting,” either through the testimony of an economic expert or other “economic data” supported by “a proper foundation.” Id. at 334-35. Reed does not dispute these requirements, nor does he claim to have any evidence to satisfy them. So he cannot seek recovery for any lost wages he allegedly will suffer in the [**37] future, i.e., from the time of trial going forward. The BSA’s motion to exclude evidence of future lost wages is granted.

III. Conclusion

Boston Minuteman’s motion for summary judgment ¹³ is GRANTED. The BSA’s first and third motions in limine ¹⁴ are GRANTED but its second motion in limine ¹⁵ is DENIED.

13 Document no. 28.

14 Document nos. 46, 48.

15 Document no. 47.

SO ORDERED.

/s/ Joseph N. Laplante

Joseph N. Laplante

United States District Judge

Dated: February 3, 2010

In this mountain biking case, fighting each claim pays off.

Posted: September 10, 2012 | Author: Recreation Law | Filed under: Cycling, Tennessee | Tags: Boy Scout, Boy Scouts, BSA, Gross negligence, MAINE, Mountain bike, Mountain Bike Trail, Mountain biking, Punitive damages, Scouting, Summer Camp, USA Cycling | 1 Comment

N.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452

Gross negligence claim is thrown out because the complaint failed to plead enough facts.

This case is about a minor, who was attending a Boy Scout summer camp. While at camp, he went mountain biking on a camp bicycle. While riding the mountain bike the plaintiff alleges the brakes were not working and the plaintiff road off the trail and hit a tree.

The plaintiff’s complaint alleged the following:

(1) it failed to keep the mountain bike trails in a reasonably safe condition; (2) it failed to warn the minor plaintiff of hidden perils of the trails which defendant knew, or by reasonable inspection, could have discovered; (3) it failed to properly train its employees; (4) it failed to properly mark the bike trail; (5) it failed to properly evaluate and assess the skill of the minor plaintiff before allowing him to ride the trail; and (6) it was “negligent in other manners.

The plaintiff also requested gross negligence as part of his damages. His complaint stated, “the negligence of Defendant . . . was the proximate cause of the injuries to the minor plaintiff….”

Generally, gross negligence is defined as greater than normal negligence. (Only a lawyer could get away with that definition….) A better definition might be:

Another definition is the failure to exercise that care that even a careless person would exercise. Gross Negligence falls just short of a reckless disregard of the consequences of the actor’s acts. Aggravated Negligence is gross negligence. The actual differences between ordinary negligence and gross negligence are difficult to define, and ordinarily done by the jury.[1]

The defendant camp filed a motion for summary judgment to eliminate the claim for gross negligence. The reason is based upon the complaint the allegation of gross negligence is the only real basis for the demand for punitive damages. Eliminate the claim for gross negligence and you have taken most of the fight out of the gross negligence claim and a lot of the ability of the plaintiff to threaten from the case.

A claim of gross negligence is not enough under Tennessee’s law to allow a jury to award punitive damages. Punitive damages can only be awarded if the jury finds the defendant acted “(1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.

Intentionally, fraudulently and maliciously are easily understood. In Tennessee, a person acts recklessly when:

A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.

Because the complaint did not allege how or why the defendant was aware of the problems with the bicycle or the trail, he could not sustain a claim for gross negligence and consequently, claim punitive damages.

The court granted the defendants claim.

So?

Not every lawsuit provides the opportunity to start and win a fight based on the pleadings. However, every pleading, complaint, should be examined to make sure, under the law of that state, the pleadings make a legal case.

Even if a flaw is found, you need to examine the cost of the fight and the benefit. Sometimes a flaw can be allowed to survive to be attacked later. However, litigation is a fight and every opportunity to weaken the opposing side should be taken.

For additional cases looking at the legal issues of cycling see:

Connecticut court works hard to void a release for a cycling event

Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter

How to fight a Bicycle Product Liability case in New York. One step at a time

Maine upholds release in a mountain bike race and awards defendants costs and attorney fees

New York Decision explains the doctrine of Primary Assumption of the Risk for cycling

PA court upholds release in bicycle race

Release for training ride at Triathlon training camp stops lawsuit

Release stops most of the litigation against a ski area and USA Cycling in a Mountain Bike race but leaves other members out in the cold or should I say stuck in the courtroom

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

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[1] Outdoor Recreation Risk Management, Insurance and Law, Chapter 7

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N.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452

Posted: September 10, 2012 | Author: Recreation Law | Filed under: Cycling, Legal Case, Tennessee | Tags: Boy Scout, Boy Scouts, Boy Scouts of America, BSA, Eagle Scout, Mountain biking, summer camp, Supreme Court, Tennessee, Tennessee Supreme Court, TN | Leave a comment

N.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452

N.H., a minor child, by and through his parents Jorge Hernandez and Elizabeth Hernandez and Jorge Hernandez and Elizabeth Hernandez, Individually, v. Sequoyah Council, Inc., Boy Scouts of America

NO. 2:11-CV-171

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

2012 U.S. Dist. LEXIS 87452

April 30, 2012, Filed

CORE TERMS: punitive damages, trail, gross negligence, recklessly, survive, failed to properly, bike, damages claim, reasonable inference, entitlement to relief’, plausibility, punitive, reckless, biking, summer camp, proximate cause, proximate result, mountain

COUNSEL: [*1] For Jorge Hernandez, Individually Minor N. H, Elizabeth Hernandez, Individually Minor N. H., Plaintiffs: Thomas C Jessee, Jessee & Jessee, Johnson City, TN.

For Sequoyah Council, Inc., Boy Scouts of America, defendant: Suzanne S Cook, LEAD ATTORNEY, Hunter, Smith & Davis – Johnson City, Johnson City, TN.

JUDGES: J. RONNIE GREER, UNITED STATES DISTRICT JUDGE.

OPINION BY: J. RONNIE GREER

OPINION

ORDER

This personal injury action is before the Court pursuant to 28 U.S.C. § 1332. Pending before the Court is the defendant’s motion to dismiss plaintiffs’ demand for punitive damages pursuant to Federal Rule of Civil Procedure 12(b)(6). [Doc. 5]. For the reasons which follow, the motion is GRANTED.

FACTS

The following facts are taken from plaintiffs’ Complaint and are assumed true for the purposes of defendant’s motion to dismiss. In June 2010, the minor plaintiff was registered by his parents to participate in a summer camp owned and operated by defendant in an attempt to earn merit badges towards becoming an Eagle Scout. On June 15, 2010, while at this summer camp, the minor plaintiff participated in a mountain biking activity/class sponsored by defendant. During the course of his participation, the minor plaintiff discovered [*2] that the brakes on his bike were not working, and he rode off the trail and struck a tree, sustaining severe bodily injuries.

The defendant was allegedly negligent as follows: (1) it failed to keep the mountain bike trails in a reasonably safe condition; (2) it failed to warn the minor plaintiff of hidden perils of the trails which defendant knew, or by reasonable inspection, could have discovered; (3) it failed to properly train its employees; (4) it failed to properly mark the bike trail; (5) it failed to properly evaluate and assess the skill of the minor plaintiff before allowing him to ride the trail; and (6) it was “negligent in other manners.” [Doc. 1 at ¶19]. The Complaint also states that “the negligence of Defendant . . . was the proximate cause of the injuries to the minor plaintiff.” Id. at ¶20. The Complaint contains a number of additional paragraphs that allege how the “negligence” of the defendant was the proximate cause of various other consequences. Id. at ¶¶22-27. The final paragraph of the Complaint states, “As a proximate . . . result of the negligence of Defendant, the Plaintiffs have been damaged . . . in an amount not to exceed $600,000.00 actual damages. As a [*3] direct and proximate result of the gross negligence of the Defendant, the Plaintiffs believe they are entitled to recover punitive damages . . ..” Id. at ¶28 (emphasis added).

Defendant has filed a motion asking the Court to dismiss the Complaint so far as punitive damages are concerned on the ground that the plaintiffs have failed to adequately plead a factual basis that would provide for the award of punitive damages.

LEGAL STANDARD

Fed.R.Civ.P. 8(a) requires “a short and plain statement of the claims” that “will give the defendant fair notice of what the plaintiff’s claim is and the ground upon which it rests.” The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than just labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, [*4] accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950. When considering a motion to dismiss, the Court must accept all of the plaintiff’s allegations as true in determining whether a plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984).

ANALYSIS

“In a diversity action . . . the propriety of an award of punitive damages for the conduct in question, and the factors the jury may consider in determining their amount, are questions of state law.” Browning-Ferris Indus. of Vt., Inc., v. Kelco Disposal, Inc., 492 U.S. 257, 278, 109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989). Thus, to survive a motion to dismiss, a claim for punitive damages must be plausible as defined by Tennessee law.

The Tennessee Supreme Court has held that punitive damages are available in cases involving “only the most egregious of wrongs.” [*5] Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992). Accordingly, under Tennessee law, “a court may . . . award punitive damages only if it finds a defendant has acted either (1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.” Id. ¹

1 The Tennessee Supreme Court has expressly stated that punitive damages are not available for “gross negligence.” Hodges, 833 S.W.2d at 900-901. However, the legal sufficiency of a complaint does not depend upon whether or not the plaintiffs invoked the right “magic words,” but instead whether the facts as alleged may plausibly be construed to state a claim that meets the standards of Rule 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)(clarifying the dismissal standard under Rule 12(b)(6) and noting that “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era”). Consequently, the Court will construe the plaintiffs’ allegations of “gross negligence” in paragraph 28 of the Complaint as an allegation that defendant behaved “recklessly.”

Here, defendant asserts that “Although the Complaint cursorily mentions ‘gross negligence’ one time in a conclusory manner, the Complaint [*6] lacks any facts or allegations that aver an utter lack of concern or reckless disregard such that a conscious indifference can even be implied . . ..” [Doc. 6 at 3]. The plaintiff counters that “The plaintiff in this case has identified specific detailed acts of negligence on the part of the defendant and . . . [consequently] it is clear that a jury could decide that the actions of the defendant were grossly negligent.” [Doc. 7 at 2].

The Court has reviewed the Complaint and agrees with the defendant. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief. Iqbal, 556 U.S. at 678. Such is the case with the Complaint in this matter. The entirety of the Complaint is dedicated to explaining why the defendant was negligent. However, there is no separate mention made regarding why the defendant was reckless. To be sure, the plaintiff could argue that by alleging in multiple paragraphs that defendant “knew, or should have known,” of certain unsafe conditions, he has sufficiently pled both negligence and recklessness. However, plaintiff would be mistaken in asserting such [*7] argument.

Under Tennessee law, “A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.” Hodges, 833 S.W.2d at 901. An examination of the Complaint reveals that plaintiffs have failed to allege how or why the defendant was aware of the deficiencies in the bicycle and the biking trail. This is fatal to plaintiffs’ claim for punitive damages. See Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 445 (6th Cir. 2012) (“To survive a motion to dismiss . . . allegations must be specific enough to establish the relevant ‘who, what, where, when, how or why.”); See also, Tucker v. Bernzomatic, 2010 U.S. Dist. LEXIS 43771, 2010 WL 1838704 (E.D.Pa. May 4, 2010) (Dismissing punitive damages claim in products liability action because consumer did not allege how or why manufacturer knew that its product was dangerous).

In light of the foregoing, the Court concludes that the Complaint does not contain sufficient factual content to allow the Court to draw the reasonable inference that defendant has acted recklessly. [*8] See Iqbal, 556 U.S. at 678. The punitive damages claim will therefore be dismissed.

CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss plaintiffs’ demand for punitive damages [Doc. 5] is GRANTED and plaintiffs’ demand for punitive damages is DISMISSED.

ENTER:

/s/ J. RONNIE GREER

UNITED STATES DISTRICT JUDGE

Way to go Primal Wear! and the Denver Area Council of the BSA!

Posted: June 21, 2012 | Author: Recreation Law | 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 comment

Denver 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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