The Ferae Naturae doctrine prevents a landowner from being liable for injuries to guests from wildlife.

In Texas, the landowner was not liable for the damages caused by a bite from a Brown Recluse Spider when it bit a tenant on the property.

Hillis v. McCall, 2020 Tex. LEXIS 187, 63 Tex. Sup. J. 577

State: Texas, Supreme Court of Texas

Plaintiff: Henry McCall

Defendant: Homer Hillis

Plaintiff Claims: premises liability

Defendant Defenses: ferae naturae

Holding: for the Defendant

Year: 2020

Summary

Ferae Naturae means naturally wild. Since the guest knew Brown Recluse Spiders were around and had seen them, he could not hold the landowner liable for the damages suffered when he was bitten by one. The Texas Supreme Court held that since the plaintiff knew spiders were around, and they were wild animals; the landowner/defendant was not liable.

Facts

Homer Hillis owns a bed and breakfast (the B&B) and a neighboring cabin in Fredericksburg, Texas. He used the B&B as a second home until 2012, when he began renting it out, mainly on weekends. Hillis hired a housekeeper to prepare and clean the B&B before guests arrived. That process included utilizing “bug bombs” in the event the housekeeper noticed any pest problems. Thus, as Hillis described it, pest control at the B&B was conducted on an “[a]s needed” basis.

In early 2014, Hillis leased the neighboring cabin on the property to Henry McCall. The cabin had no washer or dryer and had only a small refrigerator, so Hillis permitted McCall to use the laundry facilities and larger refrigerator in the B&B. McCall also offered to “open up” the B&B for guests and others needing access, such as electricians and other maintenance workers. According to McCall, Hillis typically called him several days before guests arrived and asked him to perform various tasks.

On December 12, 2014, McCall accessed the B&B at Hillis’s request to check the dishwasher and investigate whether the sink was leaking. While checking under the sink for a leak, McCall was bitten by a brown recluse spider, which is a venomous spider found in several states, including Texas.

Before he was bitten, McCall had observed spiders in both the cabin and the B&B on several occasions and had notified Hillis about the general presence of spiders in the B&B. According to Hillis, when McCall reported issues with insects or spiders, Hillis would pass along the information to the housekeeper who prepared the B&B for guests. Hillis also averred that customer reviews of the B&B had never complained of insects. Neither Hillis nor McCall had any personal knowledge about the presence of brown recluse spiders on Hillis’s property specifically or in the surrounding area. However, Hillis explained that he had read reports on the internet that brown recluse spiders “are habitats [sic] of Texas for a long time, and I assumed they were around my property.” Hillis had heard of people being bitten by brown recluses “elsewhere,” but not on his property.

McCall sued Hillis for negligence under a premises-liability theory, alleging that the presence of brown recluse spiders on Hillis’s property constituted an unreasonably dangerous condition, that Hillis knew or should have known of the condition, that Hillis owed McCall a duty to adequately warn him of the condition or make the property safe, that Hillis breached that duty, and that McCall suffered damages as a result. Hillis filed a motion for summary judgment, arguing that, under the longstanding doctrine of ferae naturae, he owed no duty to McCall with respect to indigenous wild animals that Hillis had neither introduced to nor harbored on the property. The trial court granted the motion, and McCall appealed.

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

Premise’s liability is based on the theory that a landowner owes a duty to someone coming upon their land. The duty owed is dependent on the status of the person coming on the land. That status is usually based on the relationship between the landowner and the guest.

A landowner owes the most duty to an invitee.

When the injured person qualifies as an invitee, as McCall did, then as a general rule the landowner owes a “duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not.”[A] (landowner’s duty to an invitee is to “use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner . . . knows about or in the exercise of ordinary care should know about” (citation omitted)). In line with that rule, the duty does not extend to warning the invitee of hazards that are open and obvious.

There are exceptions to this rule. One is the open and obvious rule. A landowner does not owe the invitee a duty to warn or protect an invitee from an open and obvious danger on the land. If the risk is concealed, then the landowner must warn the invitee or protect the invitee from the risk.

The doctrine of ferae naturae is another duty that the landowner need not warn about. The doctrine of ferae naturae applies to wild animals and in a broader definition in some states to wind or water.

The reasoning underlying the doctrine is that wild animals “exist throughout nature” and are “generally not predictable or controllable.” In turn, the mere fact that an indigenous wild animal has crossed a landowner’s property line does not make the landowner better able to protect an invitee than the invitee is to protect himself. (“Under ordinary circumstances, Texas landowners do not have a duty to warn their guests about the presence and behavior patterns of every species of indigenous wild animals and plants which pose a potential threat to a person’s safety . . . .”).

There is an exception to the ferae naturae rule, if the wild animals are found in artificial structures or places where they are not normally found, then the landowner does have a duty to warn. The ferae naturae does not apply to zoos or to a keeper of wild animals.

Thus, when a wild animal enters such a structure, and the owner knows or has reason to know about the animal’s presence and the unreasonable risk of harm presented thereby but the invitee does not, it is reasonable to expect the owner to take steps to alleviate the danger or at least warn the invitee of it. (holding that a grocery store owner was not liable to a patron who was bitten by a rattlesnake inside the store where nothing in the record suggested that the owner “knew, or had reason to know from past experience, that there was a likelihood that snakes presented a danger to patrons”).

Because the landowner did not know the Brown Recluse Spiders were inside the building, he did not owe a duty to the plaintiff to warn him of the spiders. Further because the plaintiff did have actual knowledge that spiders were on the property he knew of the possible risks. The court stated there was no duty to warn a guest about something they already know.

The court held the landowner was not liable for the acts of the wild animal.

So Now What?

Since in most states, wild animals are owned by the state and since no one, contrary to whatever you see on TV or believed from Disney in the past, can control a wild animal, landowners are not liable for their actions. Consequently, holding a landowner liable for something he or she does not own and cannot control is difficult and does not create a legal duty.

The facts in this case are convoluted, but what allowed the landowner to succeed was the fact the plaintiff, who was living on the property for free, knew that dangerous spiders were around on the property. Since the landowner did not know there were Brown Recluse Spiders on the property the landowner could not be liable.

What do you think? Leave a comment.

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Hillis v. McCall, 2020 Tex. LEXIS 187, 63 Tex. Sup. J. 577

Hillis v. McCall, 2020 Tex. LEXIS 187, 63 Tex. Sup. J. 577

Homer Hillis, Petitioner,

v.

Henry McCall, Respondent

No. 18-1065

Supreme Court of Texas

March 13, 2020

On Petition for Review from the Court of Appeals for the Fourth District of Texas

OPINION

Debra H. Lehrmann Justice

The ferae naturae doctrine limits a landowner’s liability for harm caused by indigenous wild animals on his property. In this premises-liability case arising out of a brown-recluse spider bite, we are asked how the doctrine affects the scope of the landowner’s duty to his bitten invitee. The landowner argues that he owed no duty to the invitee because he was unaware of the presence of brown recluse spiders on his property and he neither attracted the offending spider to his property nor reduced it to his possession. Further, the invitee had actual knowledge of the presence of spiders on the property. The court of appeals held that the property owner failed to conclusively establish the absence of a duty and thus reversed the trial court’s summary judgment in his favor. We agree with the landowner and reverse the court of appeals’ judgment.

I. Background

Homer Hillis owns a bed and breakfast (the B&B) and a neighboring cabin in Fredericksburg, Texas. He used the B&B as a second home until 2012, when he began renting it out, mainly on weekends. Hillis hired a housekeeper to prepare and clean the B&B before guests arrived. That process included utilizing “bug bombs” in the event the housekeeper noticed any pest problems. Thus, as Hillis described it, pest control at the B&B was conducted on an “[a]s needed” basis.

In early 2014, Hillis leased the neighboring cabin on the property to Henry McCall.[ 1] The cabin had no washer or dryer and had only a small refrigerator, so Hillis permitted McCall to use the laundry facilities and larger refrigerator in the B&B. McCall also offered to “open up” the B&B for guests and others needing access, such as electricians and other maintenance workers. According to McCall, Hillis typically called him several days before guests arrived and asked him to perform various tasks.[ 2]

On December 12, 2014, McCall accessed the B&B at Hillis’s request to check the dishwasher and investigate whether the sink was leaking. While checking under the sink for a leak, McCall was bitten by a brown recluse spider, which is a venomous spider found in several states, including Texas.

Before he was bitten, McCall had observed spiders in both the cabin and the B&B on several occasions and had notified Hillis about the general presence of spiders in the B&B.[ 3]According to Hillis, when McCall reported issues with insects or spiders, Hillis would pass along the information to the housekeeper who prepared the B&B for guests. Hillis also averred that customer reviews of the B&B had never complained of insects. Neither Hillis nor McCall had any personal knowledge about the presence of brown recluse spiders on Hillis’s property specifically or in the surrounding area.[ 4] However, Hillis explained that he had read reports on the internet that brown recluse spiders “are habitats [sic] of Texas for a long time, and I assumed they were around my property.” Hillis had heard of people being bitten by brown recluses “elsewhere,” but not on his property.

McCall sued Hillis for negligence under a premises-liability theory, alleging that the presence of brown recluse spiders on Hillis’s property constituted an unreasonably dangerous condition, that Hillis knew or should have known of the condition, that Hillis owed McCall a duty to adequately warn him of the condition or make the property safe, that Hillis breached that duty, and that McCall suffered damages as a result. Hillis filed a motion for summary judgment, arguing that, under the longstanding doctrine of ferae naturae, he owed no duty to McCall with respect to indigenous wild animals that Hillis had neither introduced to nor harbored on the property. The trial court granted the motion, and McCall appealed.

The court of appeals reversed. 562 S.W.3d 98, 106 (Tex. App.-San Antonio 2018). Viewing the evidence in the light most favorable to McCall, the court concluded that “McCall was bitten by a spider in an artificial structure and Hillis knew or should have known of an unreasonable risk of harm posed by the spiders inside the B&B.” Id. Accordingly, the court held that Hillis had failed to establish as a matter of law the absence of a duty to warn or make safe under the doctrine of ferae naturae. Id.

II. Discussion

A. Standard of Review

A trial court’s order granting summary judgment is reviewed de novo. Tarr v. Timberwood Park Owners Ass’n, 556 S.W.3d 274, 278 (Tex. 2018). A party moving for traditional summary judgment has the burden to prove that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 865 (Tex. 2018); see also Tex. R. Civ. P. 166a(c). “When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citations omitted).

B. Premises Liability and Ferae Naturae

“A claim against a property owner for injury caused by a condition of real property generally sounds in premises liability.” Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 642 (Tex. 2016). When the claim is based on the property owner’s negligence, the threshold question is whether the owner owed a duty to the injured person. See Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 794 (Tex. 2008). “The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence” at issue. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996).[ 5] Further, the duties owed by a landowner in a premises-liability case “depend upon the role of the person injured on his premises.” Rosas v. Buddies Food Store, 518 S.W.2d 534, 535 (Tex. 1975). When the injured person qualifies as an invitee, [ 6] as McCall did, [ 7] then as a general rule the landowner owes a “duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not.” Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015); see also United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017) (landowner’s duty to an invitee is to “use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner . . . knows about or in the exercise of ordinary care should know about” (citation omitted)). In line with that rule, the duty does not extend to warning the invitee of hazards that are open and obvious. Austin, 465 S.W.3d at 204.

Notwithstanding the general rule regarding the duty a premises owner owes to invitees, we have approached the scope of the duty differently in some circumstances. For example, we have held that a premises owner generally has no duty to protect invitees from the criminal acts of third parties on the owner’s property, but we recognize an exception “when the owner knows or has reason to know of a risk of harm to invitees that is unreasonable and foreseeable.” Del LagoPartners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010); see also Austin, 465 S.W.3d at 206 (characterizing the duty recognized in Del Lago as an exception to the general rule that a landowner owes no duty to warn an invitee with respect to unreasonably dangerous conditions that are obvious or known to the invitee). Pertinent to this case, we have also recognized that, with certain exceptions, a premises owner generally owes no duty to protect invitees from wild animals on the owner’s property. Union Pac. R.R. Co. v. Nami, 498 S.W.3d 890, 896-97 (Tex. 2016). Under this longstanding doctrine of ferae naturae, such a duty does not exist “unless the landowner actually reduced indigenous wild animals to [his] possession or control,” “introduced nonindigenous animals into the area,” or affirmatively “attract[ed] the animals to the property.” Id. at 897 (citations omitted); see also Nicholson v. Smith, 986 S.W.2d 54, 63 (Tex. App.-San Antonio 1999, no pet.).

The reasoning underlying the doctrine is that wild animals “exist throughout nature” and are “generally not predictable or controllable.” Nami, 498 S.W.3d at 897 (quoting 4 Am Jur. 2d, Animals § 62 (2007)).[ 8] In turn, the mere fact that an indigenous wild animal has crossed a landowner’s property line does not make the landowner better able to protect an invitee than the invitee is to protect himself. Id.; see also Nicholson, 986 S.W.2d at 63 (“Under ordinary circumstances, Texas landowners do not have a duty to warn their guests about the presence and behavior patterns of every species of indigenous wild animals and plants which pose a potential threat to a person’s safety . . . .”). The risk and foreseeability of injury do not outweigh the severe burden and potential consequences of imposing a general duty on a landowner with respect to “indigenous wild animals in their natural habitat, in the normal course of their existence.” Nicholson, 986 S.W.2d at 62; see also Brantley v. Oak Grove Power Co., No. 10-12-00135-CV, 2012 WL 5974032, at *3 (Tex. App.-Waco Nov. 29, 2012, no pet.) (mem. op.) (holding that a landowner owed no duty to a construction worker who was bitten by a spider at a construction site, in part because the spider was “in its natural habitat in the normal course of its existence” and the employer had engaged in no affirmative or negligent acts to draw spiders to the area).

However, courts applying the ferae naturae doctrine have long recognized an additional exception to the general no-duty rule, holding that a landowner: could be negligent with regard to wild animals found in artificial structures or places where they are not normally found; that is, stores, hotels, apartment houses, or billboards, if the landowner knows or should know of the unreasonable risk of harm posed by an animal on its premises, and cannot expect patrons to realize the danger or guard against it.

Nami, 498 S.W.3d at 897 (citing various treatises); see also Overstreet v. Gibson Prod. Co., 558 S.W.2d 58, 61 (Tex. App.-San Antonio 1977, writ ref’d n.r.e.) (noting that a landowner owes no duty to exercise reasonable care to protect invitees from the acts of wild animals on the property “until he knows or has reason to know that the dangerous acts by wild animals are occurring or about to occur”). Under that exception, a duty akin to the general duty owed to invitees under Texas law-that is, a duty to warn of or make safe from an unreasonably dangerous condition about which the owner knows or reasonably should know but the invitee does not-arises with respect to “wild animals found in artificial structures or places where they are not normally found.” Nami, 498 S.W.3d at 897.

We generally agree with the policies underlying imposing such a duty on landowners with respect to wild animals that pose an unreasonable risk of harm inside artificial structures like homes, stores, hotels, and offices. While landowners cannot be held to account for every animal that finds its way inside, particularly small animals like insects and spiders that may easily enter and escape detection, we also do not expect invitees as a general matter to exercise any particular vigilance with respect to wild animals when inside.[ 9] Thus, when a wild animal enters such a structure, and the owner knows or has reason to know about the animal’s presence and the unreasonable risk of harm presented thereby but the invitee does not, it is reasonable to expect the owner to take steps to alleviate the danger or at least warn the invitee of it. See Overstreet, 558 S.W.2d at 61, 63 (holding that a grocery store owner was not liable to a patron who was bitten by a rattlesnake inside the store where nothing in the record suggested that the owner “knew, or had reason to know from past experience, that there was a likelihood that snakes presented a danger to patrons”).[ 10]

Hillis argues that this exception amounts to a “new duty” that places an untenable burden on landowners. We disagree. First, it comports with the general premises-liability duty imposed on landowners with respect to invitees as well as the consistently recognized caveat to the ferae naturae doctrine. Nami, 498 S.W.3d at 897; see also Nicholson, 986 S.W.2d at 62; Overstreet, 558 S.W.2d at 61. Second, the fact that the duty hinges on the owner’s knowledge or reason to know of an unreasonable risk of harm is significant. Unfortunately, many insects and spiders are commonly found indoors. The ever-present possibility that an insect or spider bite may occur indoors does not amount to an unreasonable risk of harm imposing a duty on property owners to guard against or warn of this fact of life. To that end, knowledge of the presence of a harmless indigenous insect or spider does not in and of itself amount to a reason to know of the presence of the kinds of insects or spiders that present a danger to invitees. On the other hand, a property owner who knows or should know of an unreasonable risk that dangerous indoor pests will bite invitees in his particular building has a duty to alleviate the danger or warn of it if the invitees neither know nor should know of the heightened risk. This strikes an appropriate balance between protecting invitees and ensuring that the burden placed on landowners is not unduly onerous.

Having outlined the parameters of the pertinent duty, we turn to its application to the facts of this case.

C. Analysis Viewing the evidence in the light most favorable to McCall, the pertinent facts are as follows: • Hillis’s property is in Fredericksburg, in the Texas Hill Country. • Hillis rented a cabin on the property to McCall and used a residence on the property as a B&B, mainly for weekend rentals. • Hillis conducted pest control in the B&B on an as-needed basis by instructing the housekeeper to set off bug bombs if she saw pests while preparing the B&B for guests. • McCall, an invitee, was bitten by a brown recluse spider inside the B&B while checking under the kitchen sink for a leak. • Brown recluse spiders are indigenous to Texas. • Hillis had read about brown recluse spiders on the internet and knew that they were indigenous to Texas and thus that they could be on his property. • McCall did not know brown recluse spiders were indigenous to Texas. • McCall had seen spiders on several occasions in both the cabin and the B&B. When he saw spiders in the B&B, he would notify Hillis, who passed along the information to the housekeeper who prepared the B&B for guests. • Customer reviews of the B&B had never mentioned insects. • Hillis had no actual knowledge of the presence of brown recluse spiders on his property before McCall was bitten. • McCall had no actual knowledge of the presence of brown recluse spiders on Hillis’s property before McCall was bitten.

On these facts, we hold that Hillis owed McCall no duty as a matter of law, notwithstanding the fact that the injury occurred inside the B&B. McCall’s position is essentially that because Hillis knew spiders had been seen in the B&B, and because he knew brown recluses are found in Texas, he knew or should have known that a dangerous brown recluse spider was in the B&B and thus had a duty to warn McCall.[ 11] We disagree.

First, as noted, knowledge of the general intermittent presence of spiders does not necessarily amount to knowledge of an unreasonable risk of harm, and Hillis had no particular reason to know that brown recluses, or other venomous spiders, were inside the B&B. Although Hillis knew that brown recluses are indigenous to Texas, the record does not show that he had identified or should have identified that the spiders McCall previously reported seeing inside the house presented a danger. Indeed, McCall testified in his deposition that the spiders he had seen in the B&B and reported to Hillis before McCall was bitten were the “[s]ame type of spiders” he had seen in his previous home in Fredericksburg, and nothing in the record indicates that he was referring to brown recluses or to any other type of venomous spider. The record thus conclusively negates a determination that Hillis knew or had reason to know of an unreasonable risk of harm presented by brown recluse spiders inside the B&B.

Further, McCall and Hillis had identical actual knowledge of the presence of spiders on the property: both knew that they had been seen in the B&B periodically, and neither knew of the presence of brown recluses or of other types of venomous spiders.[ 12] According to McCall, Hillis should have warned him that the spiders McCall himself had seen could have been venomous. But it is simply common knowledge that some spiders are venomous and others harmless. We will not impose a duty on a landowner to warn an invitee about something he already knows. See Nami, 498 S.W.3d at 897 (recognizing that imposition of a duty with respect to wild animals inside an artificial structure depends in part on a determination that the invitee cannot reasonably be expected “to realize the danger or guard against it”).

As noted, the existence of a duty is a question of law that depends on the underlying facts. Walker, 924 S.W.2d at 377. Even with respect to wild animals found inside, an owner’s duty to invitees does not extend beyond warning about or making safe from unreasonably dangerous conditions about which the owner knows or has reason to know but the invitee does not. On the record before us, we hold that Hillis negated a duty to McCall as a matter of law.

III. Conclusion

The trial court correctly granted summary judgment for Hillis on McCall’s premises-liability claim. Accordingly, we reverse the court of appeals’ judgment and render judgment that McCall take nothing.

———

Notes:

[ 1] Karen Oringderff, McCall’s common-law wife, was also a tenant. She is not a party to this lawsuit.

[ 2] Hillis disputed this characterization, stating that he typically did not affirmatively request McCall’s assistance with respect to preparing the B&B for guests. Rather, Hillis merely accepted McCall’s offer to help, was “happy that he was willing to do it, and . . . appreciated it.” For summary judgment purposes, we will accept McCall’s version of events.

[ 3] McCall was responsible for pest control in the cabin while Hillis remained responsible for pest control in the B&B.

[ 4] According to the court of appeals, “Hillis admitted in his deposition that he knew there was a population of brown recluse spiders on the property.” 562 S.W.2d 98, 106 (Tex. App.-San Antonio 2018). Neither party references deposition testimony to that effect, and our review of the record revealed no such testimony.

[ 5] We balance several factors in determining whether a duty exists, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the landowner’s conduct, the burden of preventing the injury, and the consequences of placing that burden on the landowner. Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).

[ 6] An invitee is “one who enters on another’s land with the owner’s knowledge and for the mutual benefit of both.” Rosas, 518 S.W.2d at 536.

[ 7] McCall alleged in his petition that he qualified as an invitee when he was bitten, and Hillis conceded as much for purposes of his summary judgment motion. We therefore assume without deciding that McCall was an invitee.

[ 8] We recognized in Nami that insects are treated as wild animals. 498 S.W.3d at 896 (citing Restatement (Second) of Torts § 506 cmt. a (Am. Law Inst. 1977)). We see no reason to treat arachnids differently.

[ 9] In light of these considerations, the fact that the injury occurs in or near any type of artificial structure does not necessarily give rise to the exception. For example, in Brantley, the plaintiff was bitten by a spider while “standing on a concrete slab [at a construction site] with a partial structure and no roof.” 2012 WL 5974032, at *3. The court of appeals, noting testimony that “there were spiders everywhere in the field” at the site, held that the spider that bit the plaintiff was in its natural habitat and no duty was owed. Id. While we cannot anticipate how the doctrine would apply with respect to every type of artificial structure imaginable, we can say that we do not view barns and billboards in the same way as structures like houses, hotels, offices, and retail stores in evaluating the duty owed with respect to wild animals.

[ 10] We need not address whether an additional exception exists when a landowner has actual knowledge of an unreasonable risk of harm presented by a wild animal on his property (even while outside) and the patron neither knows nor reasonably should know of the risk.

[ 11] McCall does not contend that Hillis engaged in any affirmative or negligent acts to draw venomous spiders to the property.

[ 12] The court of appeals did not consider the effect of McCall’s awareness of the presence of spiders inside the B&B on whether Hillis owed him a duty, holding that “Hillis did not assert McCall’s knowledge as a basis for summary judgment [and instead] relied exclusively on the doctrine of ferae naturae to negate the element of duty.” 562 S.W.3d at 100 n.1. We disagree with that narrow characterization of Hillis’s summary judgment motion. In challenging the existence of a duty in that motion, Hillis focused principally on the absence of evidence that he had attracted brown recluses to the property; however, he explicitly referenced McCall’s knowledge as supporting a finding that no duty was owed. Hillis then elaborated on the significance of that knowledge in his reply in support of the motion. We will not ignore the relevant evidence of McCall’s knowledge that Hillis expressly brought to the trial court’s attention in his summary judgment motion and reply.

———


Plaintiff loses because experts could not prove his claims against a camp used for a football camp.

ACA trained expert witness was hired by injured plaintiff to prove a claim against a summer camp. Again, camp money is used to train expert who then is used against the camp.

Staten Et. Al. v. The City of New York Et. Al., 2013 N.Y. Misc. LEXIS 4257; 2013 NY Slip Op 32252(U)

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

Plaintiff: Marvin Staten, an Infant Over the Age of 14 years by his Parent and Natural Guardian Cassandra Dozier and Cassandra Dozier, Individually

Defendant: The City of New York, The New York City Department of Education, Camp Chen-A-Wanda, Inc., Louis Cintron, Sr., Louis Cintron, Jr., an infant over the age of 14 years by his Parent and Natural Guardian, Louis Cintron, Sr., Barbara Rose Cintron and Louis Cintron, Jr. an infant over the age of 14 years by his Parent and Natural guardian, Barbara Rose Cintron, Defendants

Plaintiff Claims: Negligent supervision and maintenance of the premises

Defendant Defenses:

Holding: For the defendant Camp

Year: 2013

Summary

American Camp Association (ACA) trained expert witness used ACA material to try and prove the summer camp was liable for the injuries of a camper. The summer camp had passed the duty to control the kids to the school district that had rented the camp and as such was not liable.

To be able to sue for emotional damages under New York law, the parent must have financial damages also. Lacking that, the mother’s claims were dismissed.

Facts

This ruling is the result of several motions filed by different parties and can be confusing.

The minors were at a summer week long football camp. The camp was rented by the defendant New York Department of Education. The camp, Camp Chen-A-Wanda, Inc., was located in Pennsylvania.

The plaintiff was looking through the cabin window where he was bunking to see if anyone was messing with his stuff. The defendant minor punched the plaintiff through the window, injuring the plaintiff with the broken glass from the window. The plaintiff’s expert identified this action as horseplay?

At his deposition, plaintiff testified that shortly after dinner on the date of the accident, he was standing outside his cabin, looking in through a window to “see if anybody was messing around with [his] stuff” when, after a few seconds, defendant Cintron “punched [through] the glass”

The defendant minor had been disciplined before by the school district for fighting.

There was a written agreement between the Defendant Camp and the school district, where the school district agreed to provide one adult (person over age 19) per cabin. In the cabin where the incident took place, the supervisors were two seniors, one of whom was the defendant minor.

The agreement gave control of the people at the camp, including campers to the school district renting the facilities.

This is the decision concerning the various motions.

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

The camp filed a motion for summary judgment arguing:

(1) it owed no duty to supervise plaintiff or to otherwise protect him from horseplay; (2) no facts have been adduced in support of plaintiffs’ claim that the subject window constituted a “defective condition”; and (3) since the proximate cause of the accident was the sudden, unanticipated independent actions of Cintron (i.e., punching the glass), the Camp cannot be found liable for plaintiff’s injury.

The plaintiff argued the camp was negligent and negligent per se. The negligence per se claim was based on a regulation that required safety glass to be used in windows of bunkhouses. The plaintiff also argued the camp was negligent for failing to exercise risk management and supervise the campers.

I’ve never seen a claim that it was negligent to fail to exercise risk management.

The expert hired by the plaintiff had “44 years in the camping industry and a co-author of the American Camp Association’s ‘2006 Camp Accreditation Process Guide’.” However, the court found the testimony of the expert was conclusory and insufficient to raise a question of fact.

…”conclusory testimony” offered by plaintiff’s expert was “insufficient to raise a question of fact as to whether [the Camp] breached its duty to maintain[] [its] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the in-jury, and the burden of avoiding the risk” and, further, that the failure of plaintiff’s expert to quote any “authority, treatise [or] standard” in support thereof rendered his ultimate opinion speculative and/or “unsupported by any evidentiary foundation…[sufficient] to withstand summary judgment.

The basis of the plaintiff’s expert witness testimony was based on the 2006 American Camp Association Accreditation Process Guide. However, he failed to demonstrate how, where or when the guide had “been accepted as an authoritative reference work in any court of law, or its applicability to a camp constructed in the 1940s.”

The court also found the expert witnesses reliance on the building codes was misplaced because the camp had been built thirty years prior to the creation of the building code.

The court then stated, “the Camp’s motion for summary judgment is granted, and the complaint and any cross claims as against this defendant are hereby severed and dismissed.”

The court then looked at the cities (New York’s) motions. The court found the duty to supervise the youth was contractually assumed by the city in its contract with the camp. The school also had knowledge of the propensity of the defendant minor to get in fights.

In this regard, actual or constructive notice to the school of prior similar conduct is generally required, since school personnel cannot be reasonably expected to guard against all of the sudden and spontaneous acts that take place among students on a daily basis

The it was foreseeable the fight could occur.

The plaintiff’s mothers claim against the city were dismissed.

However, it is well settled that a parent cannot recover for the loss of society and companionship of a child who was negligently injured, while a claim for the loss of a child’s services must be capable of monetarization in order to be compensable. Here, plaintiff’s mother has offered no proof of the value of any services rendered to her by her son. As a result, so much of the complaint as seeks an award of damages in her individual capacity for the loss of her son’s services must be severed and dismissed.

The defendant camp was dismissed from the lawsuit. The mother’s claims were dismissed from the lawsuit because she could not prove actual damages, only emotional damages, which are not a cause of action in New York.

So Now What?

Here again an ACA trained expert witness tries to use ACA material to prove a camp is negligent. The expert would have been successful if he had better training as an expert witness and knew had to get his guide into evidence.

There are great organizations doing great things for their membership. ACA is one of those organizations. However, like others, the attempt to help their membership be better is making their lives in court a living hell.

What would you think if the person sitting across from you being deposed or on the witness stand says you are a crummy operation and negligent. And you know that your association money went into training him and creating the documents he is using to prove you were negligent.

The final issue is many states are reducing or eliminating who can sue for emotional damages when they witness or are relatives of the plaintiff. Here New York has said you can’t sue for emotional damages for the injury your child received if you don’t have financial damages in the game also.

What do you think? Leave a comment.

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Staten Et. Al. v. The City of New York Et. Al., 2013 N.Y. Misc. LEXIS 4257; 2013 NY Slip Op 32252(U)

Staten Et. Al. v. The City of New York Et. Al., 2013 N.Y. Misc. LEXIS 4257; 2013 NY Slip Op 32252(U)

[**1] Marvin Staten, an Infant Over the Age of 14 years by his Parent and Natural Guardian Cassandra Dozier and Cassandra Dozier, Individually, Plaintiffs, -against- The City of New York, The New York City Department of Education, Camp Chen-A-Wanda, Inc., Louis Cintron, Sr., Louis Cintron, Jr., an infant over the age of 14 years by his Parent and Natural Guardian, Louis Cintron, Sr., Barbara Rose Cintron and Louis Cintron, Jr. an infant over the age of 14 years by his Parent and Natural guardian, Barbara Rose Cintron, Defendants.

Index No. 104585/07

SUPREME COURT OF NEW YORK, RICHMOND COUNTY

2013 N.Y. Misc. LEXIS 4257; 2013 NY Slip Op 32252(U)

August 18, 2013, Decided

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

SUBSEQUENT HISTORY: Affirmed in part and reversed in part by, Summary judgment granted by, Dismissed by, in part Staten v. City of New York, 2015 N.Y. App. Div. LEXIS 3334 (N.Y. App. Div. 2d Dep’t, Apr. 22, 2015)

PRIOR HISTORY: Staten v. City of New York, 90 A.D.3d 893, 935 N.Y.S.2d 80, 2011 N.Y. App. Div. LEXIS 9134 (N.Y. App. Div. 2d Dep’t, 2011)

CORE TERMS: window, glass, summary judgment, inter alia, bunk, high school, supervision, severed, horseplay, cabin, spontaneous, hazardous, engaging, breached, sudden, coach, adult, individual capacity, safety glass, building code, constructive notice, supervising, speculative, fighting, infant, fellow, leader, notice, cross claims, negligent supervision

JUDGES: [*1] Present: HON. THOMAS P. ALIOTTA

OPINION BY: THOMAS P. ALIOTTA

OPINION

DECISION AND ORDER

[**2] Upon the foregoing papers, the motion for summary judgment (No. 1415-005) of defendant Camp Chen-A-Wanda, Inc. (hereinafter the “Camp”) is granted; the cross motion for summary judgment (No. 1471-006) of defendants The City of New York and The New York City Department of Education (hereinafter “City”) is granted to the extent of dismissing the claims of the individual plaintiff, Cassandra Dozier. The balance of the cross motion is denied.

This matter arises out of an incident which occurred on August 25, 2007 at the Camp’s premises in Pennsylvania, where the infant plaintiff, Marvin Staten (hereinafter “plaintiff”) was enrolled in a week-long football camp with the balance of his high school football team. Plaintiff, who was entering his sophomore year at Tottenville High School on Staten Island, claims to have sustained extensive injuries to his left eye when he was struck by glass from a window pane which had allegedly been broken by a punch thrown by defendant and fellow teammate, Louis Cintron, Jr. (hereinafter “Cintron”). It appears undisputed that the window broke while plaintiff and/or Cintron were engaging in [*2] “horseplay.”

At his deposition, plaintiff testified that shortly after dinner on the date of the accident, he was standing outside his cabin, looking in through a window at eye-level to “see if anybody was messing around with [his] stuff” when, after a few seconds, defendant Cintron “punched [through] the glass” (see Plaintiff’s March 27, 2009 EBT, pp 70-71; Camp’s Exhibit F). No criminal charges were filed against plaintiff’s teammate, who was, however, dismissed from the camp, “cut” from his high school team, and suspended from Tottenville High School following the incident.

The claims against the Camp and the City are grounded in allegations of negligent supervision and maintenance of the premises where the incident occurred (see Plaintiffs’ Amended Verified Complaint, Camp’s Exhibit A, para “Thirty-Sixth”).

[**3] It is noted that prior to this incident, i.e., on February 14, 2006, Cintron had been disciplined by Tottenville High School for engaging in disruptive conduct with another student (see City’s Exhibit I; see also Staten v. City of New York, 90 AD3d 893, 935 N.Y.S.2d 80). It is likewise noted that pursuant to a written contract drawn on Camp Chen-A-Wanda letterhead, dated and signed August 20, [*3] 2007, Tottenville High School coach Jim Munson agreed that “each bunk will be supervised by a coach, former player, or other adult who is at least nineteen years of age” (see City’s Exhibit C). To the extent relevant, the bunk “leaders” supervising plaintiff’s bunk were two seniors, one of whom was defendant Cintron.

In moving for summary judgment, Camp argues, inter alia, that: (1) it owed no duty to supervise plaintiff or to otherwise protect him from horseplay; (2) no facts have been adduced in support of plaintiffs’ claim that the subject window constituted a “defective condition”; and (3) since the proximate cause of the accident was the sudden, unanticipated independent actions of Cintron (i.e., punching the glass), the Camp cannot be found liable for plaintiff’s injury.

In opposition to the motion, plaintiff alleges, inter alia, that not only was the Camp negligent in its maintenance of the premises, but that it was negligent: (1) per se in using ordinary or “annealed” glass for the cabin windows rather than safety glass, in violation of Pennsylvania State and International Building Codes (see June 12, 2013 affidavit of Plaintiff’s Expert, Michael J. Peterson, Plaintiff’s Exhibit [*4] H); (2) in failing to properly exercise risk management, and (3) in failing to supervise its post-season campers and protect them against horseplay. Plaintiff further argues that while Cintron’s actions might be considered “intervening,” his conduct was not a superseding cause of the accident. Notably, plaintiff submits the affidavit of Michael J. Peterson (see Plaintiffs’ Exhibit H), an “expert with 44 years in the camping industry and a co-author of the American Camp Association’s ‘2006 Camp Accreditation Process Guide'” (see Plaintiffs’ [**4] Memorandum of Law), who opined, inter alia, “with a reasonable degree of professional certainty of the camping industry…that [the Camp] should have begun and completed replacement of all non-reinforced glass in hazardous or even marginally hazardous locations within [its] camp with safety impact rated glass, plexi glass (plastic),…safety film, or…reinforced…small gauge hardware cloth wire a full two decades before this accident.” The expert further opined that had these steps been taken, the punch “would not [have] shattered safety impact rated glass, plexi-glass, glass covered with safety film or reinforced glass” (id.).

As previously indicated, [*5] the Camp’s motion for summary judgment is granted, and the complaint and any cross claims as against this defendant are hereby severed and dismissed.

In the opinion of this Court, it is constrained by the 2005 decision of the Court of Appeals in Buchholz v. Trump 767 Fifth Avenue, (5 NY3d 1, 831 N.E.2d 960, 798 N.Y.S.2d 715) to hold that the “conclusory testimony” offered by plaintiff’s expert was “insufficient to raise a question of fact as to whether [the Camp] breached its duty to maintain[] [its] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” and, further, that the failure of plaintiff’s expert to quote any “authority, treatise [or] standard” in support thereof rendered his ultimate opinion speculative and/or “unsupported by any evidentiary foundation…[sufficient] to withstand summary judgment (id. at 9 [internal quotation marks omitted]; see Diaz v. New York Downtown Hosp., 99 NY2d 542, 544, 784 N.E.2d 68, 754 N.Y.S.2d 195).1

1 The decedent in Buchholz was pushed and fell through an office window after engaging in “play fighting” with three co-workers following their attendance at a St. Patrick’s Day Parade [*6] in 1999 (id. at 4). Plaintiff alleged that the premises’ owner was negligent, inter alia, in failing to furnish shatterproof glass windows and a safety rail across the window’s face in contravention of certain sections of the New York City Administrative Code, particularly §27-651 (“Panels subject to human impact loads”). Plaintiff’s expert, a registered architect and licensed engineer, submitted an affidavit opining that the window’s very low sill was problematic, and further, that “good and accepted engineering and building safety practices dictated that a protective barrier bar be installed” (id. at 6). Nevertheless, the trial court’s denial of the owner’s summary judgment motion was reversed on appeal (see Buchholz v. Trump 767 Fifth Ave., LLC, 4 AD3d 178, 772 N.Y.S.2d 257) and affirmed by the Court of Appeals based, inter alia, on the speculative nature of the opinion of plaintiff’s expert.

[**5] Here, plaintiff’s expert placed substantial reliance on the language of the 2006 American Camp Association Accreditation Process Guide in formulating his opinion. However, although alleged to have been tested “numerous times in litigation”, Mr. Peterson failed to demonstrate, e.g., where or when this guide has [*7] been accepted as an authoritative reference work in any court of law, or its applicability to a camp constructed in the 1940s. Moreover, his opinion that the failure to replace unannealed windows violated certain Pennsylvania codes or statutes is not compelling or binding upon this Court. To the contrary, Peterson’s reliance on 34 Pa. Admin. Code §47.398, to require the use of “safety glass” in bunk windows represents a misreading of the statute, as the provision in question was not adopted until 1972 (some thirty years after the Camp began its operations), and neither it nor any other Pennsylvania building code or regulation has been cited requiring that bunk windows be retrofitted to conform to the 1972 requirements (cf. Buchholz v. Trump 767 Fifth Avenue, 5 NY3d at 9). Moreover, he failed to show that the window in question was actually in a “hazardous” location for purposes of the cited codes, i.e., within 24 inches of the bunkhouse door. In fact, no measurement was provided. “Although noncompliance with…a customary practice or industry standard may be evidence of negligence, the failure to abide by guidelines or recommendations that are not generally-accepted standards in an [*8] industry will not suffice to raise an issue of fact as to a defendant’s negligence” (Diaz v. New York Downtown Hosp., 287 AD2d 357, 358, 731 N.Y.S.2d 694, affd 99 NY2d 542, 784 N.E.2d 68, 754 N.Y.S.2d 195 [citations omitted]; see also Ambrosio v. South Huntington Union Free School Dist., 249 AD2d 346, 671 N.Y.S.2d 110). This, similarly to Buchholz, is just such a case2.

2 Also worthy of note is the Camp’s uncontroverted representation that no similar incidents (other than, e.g., windows broken by vandalism) occurred during its sixty-year history (see February 3, 2010 EBT of Craig Neier, Camp’s Exhibit C).

The City’s cross motion for summary judgment is granted in part, and denied, in part, as hereinafter provided.

[**6] In arguing for dismissal of the negligent supervision claim, the City argues that (1) it provided more than enough chaperones at the training camp, (2) issued oral and written instructions against the type of conduct which caused plaintiff’s injury; (3) the sudden, spontaneous and unforeseeable nature of defendant Cintron’s actions were such that no reasonable amount of supervision could have prevented the injury, and (4) it had no prior notice of the latter’s propensity to engage in the type of conduct that caused plaintiff’s injury. Moreover, [*9] the City maintains that it did not legally own, occupy, or control the Camp; that Cintron’s independent and spontaneous actions breached any chain of causation connected to the condition or maintenance of the camp and/or its cabin windows; and that it possessed no actual or constructive notice of any dangerous condition regarding the composition of the window itself.

In opposition, plaintiffs argue, inter alia, that the lack of supervision which encouraged the horseplay causing the injury is evident by the City’s failure to (1) place an adult in each cabin, as required under plaintiff’s interpretation of the terms of its contract with the Camp (see City’s Exhibit C); (2) adhere to the Regulations of the Chancellor governing adult supervision on school trips (see City’s Exhibit D), and (3) comply with American Camp Association standard HR-10A and 10B regarding the supervision of campers (see June 12, 2013 affidavit of plaintiffs’ expert, Michael J. Peterson, “Opinions 1”).

Here, the duty of supervising the student/athletes was contractually assumed by the City. In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts [*10] of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury. Put simply, the third-party acts must reasonably have been anticipated (see Brandy B. v. Eden Cent. School Dist., 15 NY3d 297, 302, 934 N.E.2d 304, 907 N.Y.S.2d 735; Mirand v. City of New York, 84 NY2d 44, 49, 637 N.E.2d 263, 614 N.Y.S.2d 372; [**7] Shannea M. v. City of New York, 66 AD3d 667, 886 N.Y.S.2d 483; Doe v. Department of Educ. of City of NY, 54 AD3d 352, 862 N.Y.S.2d 598). In this regard, actual or constructive notice to the school of prior similar conduct is generally required, since school personnel cannot be reasonably expected to guard against all of the sudden and spontaneous acts that take place among students on a daily basis.

Here, the proof of Cintron’s 2006 suspension for fighting at school serves to preclude the City from demonstrating prima facie that his designation as bunk “leader” was reasonable as a matter of law (see Staten v. City of New York and Camp Chen-A-Wanda, Inc., 90 AD3d 893, 935 N.Y.S.2d 80; see also September 16, 2009 EBT of James Munson, pp 16, 33, 39-42; the Camp’s Exhibit E). Neither is Coach Munson’s investigation purportedly uncovering a conflicting version of the events in which the breaking of the glass [*11] is attributed to plaintiff “put[ting] his face” against it (see EBT of James Munson, p 54) sufficient to warrant dismissal of the cause of action pleaded on behalf of the infant plaintiff.

However, it is well settled that a parent cannot recover for the loss of society and companionship of a child who was negligently injured (see White v. City of New York, 37 AD2d 603, 322 N.Y.S.2d 920), while a claim for the loss of a child’s services must be capable of monetarization in order to be compensable (see DeVito v. Opatich, 215 AD2d 714, 627 N.Y.S.2d 441). Here, plaintiff’s mother has offered no proof of the value of any services rendered to her by her son. As a result, so much of the complaint as seeks an award of damages in her individual capacity for the loss of her son’s services must be severed and dismissed.

Accordingly, it is

ORDERED, that the motion for summary judgment of defendant Camp Chen-A-Wanda Inc. is granted, and the complaint and any cross claims as against this defendant are hereby severed and dismissed; and it is further

[**8] ORDERED, that the cross motion for summary judgment of defendants The City of New York and The New York City Department of Education is granted to the extent that the cause(s) of action asserted [*12] by plaintiff Cassandra Dozier in her individual capacity are hereby severed and dismissed, and it is further

ORDERED that the remainder of the cross motion for summary judgment is denied.

ENTER,

/s/

Hon. Thomas P. Aliotta

J.S.C.

Dated: September 18, 2013


Information, Education and knowledge prevent a mother from suing a camp and the Girl Scouts

Buck, v. Camp Wilkes, Inc. 906 So. 2d 778; 2004 Miss. App. LEXIS 1141

Besides top bunk of a bunk bed is just not a dangerous instrumentality.

The mother of a thirteen-year old girl sued the Girl Scouts of Gulf Pine Council, Inc., the troop leader of her daughter’s unit and the camp when the girl fell off the top bunk of a bunk bed injuring her. The basis of the suit was the defendant’s actions caused or contributed to the thirteen-year  olds fall. After the defendants were dismissed on summary judgment by the trial court the mother appealed claiming the lower court failed to determine the following:

(1) in failing to follow existing standards in granting the defendants’ motions for summary judgment, (2) in finding no merit to Buck’s argument that a causal relationship existed between Boozer’s temporary absence at the time of the accident and Jamie’s falling from the bed, and in applying the wrong standard when considering Boozer and the Girl Scouts’s lack of supervision, and (3) in ruling as a matter of law that a bunk bed is not a dangerous instrumentality and that Appellees‘ use of bunk beds did not amount to a failure on their part to use reasonable care in providing Jamie a reasonably safe place to sleep.

The entire case revolved around what did the injured girl’s mother know?

The mother took her daughter to camp and helped set up her bed the first night. The second night the group moved to another cabin because the first cabin did not have a working refrigerator. The mother was not there for the move or the remaining nights. The girls decided to sleep on the top bunks, even though lower bunks were available.

The second night after the move the third night in total, the thirteen-year old rolled off the bunk and fell suffering injuries.

So?

The first argument was dismissed because there was no legal (causal) relationship between the defendant leader leaving for an errand and the girl falling out of the bunk. No supervision when the girl fell would have prevented her from falling.

The plaintiff then argued, as part of the first appeal argument that the girls should not have been allowed to sleep on the top bunk. However, the court found the plaintiff presented no evidence that bunk beds or sleeping on the top bunk by thirteen-year old girls were dangerous.

The court then looked at whether bunk beds were a dangerous instrumentality. This means that in and of themselves, bunk beds are dangerous. Guns are probably the best example of a dangerous instrumentality. However, the court found that there was no evidence the beds where dangerous on their face. The mother during her deposition testified that she knew her daughter might be sleeping on a bunk bed, expressed no concerns about that fact and did not inform anyone that she did not want her daughter sleeping on the bed.

The court referred to a New York decision that held that an innkeeper is not responsible for the beds, when the parent is the one who chooses whether or not their child can sleep in it.

Finally, the court looked at the failure to warn issue. A land owner owes a duty of care to someone on the land based on the relationship between the land owner and the person. Here, the thirteen-year old was an invitee. A landowner’s duty to an invitee is “exercising reasonable care to keep its premise’s safe, or to warn Jamie [the injured girl] of any hidden or concealed perils of which it knew, or should have known, in the exercise of reasonable care.”

Here again the court had no evidence in front of it showing that bunk beds were dangerous so that the landowner, the camp, needed to inform the mother of the dangers.

So Now What?

What stands out in this case is the fact the mother, and probably the daughter, knew what the daughter was going to do and did not stop those acts. If a parent and a child know and understand what the risk of the activity is, then it is difficult for them to prove that the risks were dangerous. If the risks were dangerous, then why didn’t the mother inform the daughter or the troop leader that she did not want her daughter participating in the particular risks?

Here, the proof came out in a deposition. However, I believe that is relying on luck to hope that discovery will save your case. Better to point out all the risks of the activity to the parents and children and be able to prove that you did point them out.

There are two ways of doing that. The first is to put the risks in a release and have the parents sign the release. This works for single day activities were the risks can be easily identified…..to some extent.

Better to put everything you can on your website. A movie of the cabins showing bunk beds would have also proven the points to the parents and the court. If each cabin is different have the parents look at the cabins that their child is staying in. Always point out that cabins are different and some have other features and numerate the risks.

Do the same with the dining hall, health club, paths and all buildings and activity areas. Give the parents every opportunity to experience the camp without leaving their computer. No matter what you show it will help sell the camp and keep parents informed of the risks.

Proving the parent watched the videos is easy. On all of your literature tell the parents to go to the website and look around. On the release, have the parents agree that they did go to the website and look around.

If you think, the videos are difficult to do, then don’t. Turn it into a project and have the kids make them!

What do you think? Leave a comment.

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Buck, v. Camp Wilkes, Inc. 906 So. 2d 778; 2004 Miss. App. LEXIS 1141

Buck, v. Camp Wilkes, Inc. 906 So. 2d 778; 2004 Miss. App. LEXIS 1141

Debbie Buck, as mother and natural guardian of Jamie Buck, Appellant, v. Camp Wilkes, Inc.; Girl Scouts of Gulf Pines Council, Inc.; and Deborah Boozer, Appellees.

NO. 2003-CA-01065-COA

COURT OF APPEALS OF MISSISSIPPI

906 So. 2d 778; 2004 Miss. App. LEXIS 1141

December 14, 2004, Decided

PRIOR HISTORY: [**1] COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. DATE OF TRIAL COURT JUDGMENT: 4/17/2003. TRIAL JUDGE: HON. JERRY O. TERRY, SR. TRIAL COURT DISPOSITION: TRIAL JUDGE GRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS DEBORAH BOOZER AND GIRL SCOUTS OF GULF PINES COUNCIL, INC. AND DISMISSED APPELLANTS’ CLAIM WITH PREJUDICE.

DISPOSITION: AFFIRMED.

COUNSEL: ATTORNEYS FOR APPELLANT: JAMES CLAYTON GARDNER, DAVID C. FRAZIER, and WILLIAM L. DENTON.

ATTORNEYS FOR APPELLEES: DORRANCE DEE AULTMAN, ROGER T. CLARK, PATRICK R. BUCHANAN, KIMBERLY DAWN SAUCIER ROSETTI, and SAMUEL TRENT FAVRE.

JUDGES: BEFORE KING, C.J., LEE, P.J., AND IRVING, J. KING, C.J., BRIDGES AND LEE, P.JJ., CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. MYERS, J., NOT PARTICIPATING.

OPINION BY: IRVING

OPINION

[*779] NATURE OF THE CASE: CIVIL – PERSONAL INJURY

IRVING, J., FOR THE COURT:

P1. Debbie Buck filed a personal injury action on behalf of her minor daughter, Jamie, against Camp Wilkes, Girl Scouts of Gulf Pine Council, Inc., and troop leader Deborah Boozer, for injuries sustained when the child fell out of a bunk bed at camp. In her complaint, Buck alleged that the defendants’ negligent conduct caused Jamie to sustain multiple damages. [**2] In response, Boozer filed a motion for summary judgment, and Girl Scouts filed a joinder, adopting Boozer’s motion. On April 17, 2003, after a hearing on the matter, the trial judge granted Boozer and Girl Scouts’s motion and found that Buck failed to show that the defendants’ actions caused or contributed to Jamie’s fall. On May 14, Buck filed a notice of appeal of the judge’s grant of Boozer and Girl Scouts’s motion.

P2. On May 28, Camp Wilkes filed a motion for summary judgment. The trial court entered a final judgment of dismissal, granting Camp Wilkes’s motion, and Buck again filed a notice of appeal. Buck’s first and second appeal were consolidated.

P3. In this appeal, Buck seeks review of whether the trial court committed reversible error (1) in failing to follow existing standards in granting the defendants’ motions for summary judgment, (2) in finding no merit to Buck’s argument that a causal relationship existed between Boozer’s temporary absence at the time of the accident and Jamie’s falling from the bed, and in applying the wrong standard when considering Boozer and the Girl Scouts’s lack of supervision, and (3) in ruling as a matter of law that a bunk bed is [**3] not a dangerous instrumentality and that Appellees’ use of bunk beds did not amount to a failure on their part to use reasonable care in providing Jamie a reasonably safe place to sleep.

[*780] P4. We find no reversible error; therefore, we affirm the trial court’s grant of summary judgment in favor of the Appellees.

FACTS

P5. In June 2000, thirteen-year-old Jamie Buck attended a Girl Scouts camping trip with her troop at Camp Wilkes. The chaperones for the trip were troop leader, Deborah Boozer, and assistant leader, Jenny White. Upon arriving at the camp, Jamie’s mother helped Jamie set up Jamie’s bed. 1 The next day, however, the troop moved to another cabin because their refrigerator was not working. 2 That night, all of the girls decided to sleep on the top bunks, and everyone, except Jamie, pulled their beds together to make a single bed. The following night, Jamie was asleep on the top bunk when she rolled out of her bed and sustained injuries to her face. Boozer was not present at the time of the accident because she had gone to retrieve supplies but had left the troop’s assistant leader with the girls while she was gone. Additional facts will be related during our discussion [**4] of the issues.

1 The camp furnished bunk beds for the girls to sleep on. The beds did not have any guard rails.

2 The second cabin had a similar layout as the first cabin and also had bunk beds for the girls to sleep on.

DISCUSSION AND ANALYSIS OF THE ISSUES

(1)Standard of Review

P6. Buck first contends that by granting the defendants’ summary judgment motions, the trial judge failed to view the facts and issues in the light most favorable to her.

P7. The law is well established with respect to the grant or denial of summary judgments. [HN1] A summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “All that is required of an opposing party to survive a motion for summary judgment is to establish a genuine issue of material fact by the means available under [**5] the rule.” Lowery v. Guaranty Bank and Trust Co., 592 So. 2d 79, 81 (Miss. 1991) (citing Galloway v. Travelers Ins. Co., 515 So. 2d 678, 682 (Miss. 1987)). [HN2] “In determining whether the entry of summary judgment [is] appropriate, [the appellate court] reviews the judgment de novo, making its own determination on the motion, separate and apart from that of the trial court.” Lowery, 592 So. 2d at 81. “The evidentiary matters are viewed in the light most favorable to the nonmoving party.” Id. “If after this examination, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, then summary judgment is affirmed, but if after examining the evidentiary matters there is a genuine issue of material fact, the grant of summary judgment is reversed.” Lowery, 592 So. 2d at 81 (citing Newell v. Hinton, 556 So. 2d 1037, 1041 (Miss. 1990)).

P8. A thorough examination of the record reveals that Buck failed to meet her burden of producing significant evidence to rebut the defendants’ showing that no genuine issue of material fact existed. Buck also produced [**6] no evidence to show that the defendants’ breached the established standard of care and that such breach was the cause of Jamie’s injuries. As a result, the trial judge appropriately granted the defendants’ summary judgment motions.

[*781] (2) Breach of Duty

P9. Buck argues that the trial court erred in finding that there was no causal relationship between Boozer’s temporary absence at the time of the accident and Jamie’s falling from the bed. Buck also argues that Boozer and Girl Scouts failed to properly supervise Jamie and the other minor children by not requiring the children to sleep on the bottom bunks, or at least, on bunk beds with side rail protectors. 3

3 Buck argues that the beds were donated by the U.S. Navy, and therefore the beds were designed for adults, not minors.

P10. [HN3] “In this negligence action, [Buck] bears the burden of producing evidence sufficient to establish the existence of [a] duty, breach, proximate causation, and damages.” Simpson v. Boyd, 880 So. 2d 1047, 1050 [**7] (P 12) (Miss. 2004) (citing Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So. 2d 790, 794 (Miss. 1995)).

P11. At the conclusion of the motion hearing, the trial judge found that Buck did not produce any evidence to indicate negligence by Boozer or Girl Scouts. We agree with the trial judge’s findings. However, assuming arguendo that Boozer was negligent in leaving the troop with the assistant troop leader, Buck has failed to demonstrate how Boozer’s absence contributed to Jamie’s injuries.

P12. Similarly, Buck has presented no authority that would substantiate her claim that the troop should not have been allowed to sleep on the beds without guard rails, or at least should have been made to sleep on the bottom bunks. Therefore, this argument is without merit.

(3) Dangerous Instrumentality

P13. Buck’s next allegation of error concerns the trial judge’s failure to find that a bunk bed constituted a dangerous instrumentality. The trial judge, relying on the New York case of Rueben v. Olympic Resort, Inc., 24 Misc. 2d 131, 198 N.Y.S. 2d 408 (N.Y. 1960), coupled with Buck’s lack of proof, found no merit in Buck’s contention [**8] that a bunk bed is a dangerous instrumentality. In Reuben, a six-year-old child was vacationing with her family at a hotel when she fell out of the top bunk and was injured. Id. at 409. The bunk bed had no guard rails. Id. Although the court denied the child’s parents recovery on other grounds, it commented that:

This Court is not prepared to state that a bunk bed without a guard rail is a dangerous instrumentality in and of itself. Such a bed, even with a guard rail, might be very dangerous to a child six months of age. Without a guard rail such a bed may be entirely safe for a child of fourteen years. It is for the parents of the child to determine what equipment is necessary or suitable for their own children. The hotel keeper cannot be presumed to know.

Id. at 409-10.

P14. We, like the trial judge and the Reuben court, [HN4] are not prepared to say that a bunk bed being used by a thirteen-year old without guard rails is a dangerous instrumentality. As noted by Camp Wilkes, Buck has failed to show any defect in the design of the bed or offered any evidence that the bed failed to comply with applicable standards, regulations, or guidelines. [**9] Buck even testified in a deposition that she knew what type bed her daughter was sleeping on and that she had no concerns about her daughter sleeping on the top bunk. Buck further stated that she did not inform anyone that she did not want her daughter sleeping on the top [*782] bunk. For the forgoing reasons, we find this issue to be without merit.

P15. Buck also argues that Camp Wilkes, by its use of bunk beds, failed to use reasonable care in providing a safe place for Jamie to sleep and also failed to adequately maintain and inspect its premises in a reasonably prudent manner. Buck further contends that Camp Wilkes failed to warn Jamie of a dangerous condition which the camp knew, or should have known, existed on their premises.

P16. [HN5] Camp Wilkes properly advances that it owed Jamie, as an invitee, the duty of exercising reasonable care to keep its premises safe, or to warn Jamie of any hidden or concealed perils of which it knew, or should have known, in the exercise of reasonable care. Lucas v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So. 2d 646, 648 (Miss. 1988) (citing Downs v. Corder, 377 So. 2d 603, 605 (Miss. 1979)). However, Camp [**10] Wilkes argues that a bunk bed is an item normally encountered on the business premises of camps like Camp Wilkes and that a bunk bed is not a hidden or concealed peril.

P17. We have already found that a bunk bed is not an inherently dangerous instrumentality. We now find that Buck has failed to demonstrate or show that the bunk bed in question was in any way defective. Therefore, we find no merit in Buck’s argument that Camp Wilkes, by its use of bunk beds, failed to use reasonable care in providing a safe place for Jamie to sleep.

P18. Finally, Buck asserts that the Appellees’ actions constituted negligence per se because Jamie was less than fourteen years old at the time of the accident. The record reveals that Buck failed to cite any case law in support of this proposition. [HN6] “Issues cannot be decided based on assertions from the briefs alone.” Pulphus v. State, 782 So. 2d 1220, 1224 (Miss. 2001) (P 15) (citing Robinson v. State, 662 So. 2d 1100, 1104 (Miss. 1995)). Similarly, a failure to cite legal authority in support of a proposition precludes this Court from considering the issue on appeal. Grey v. Grey, 638 So. 2d 488, 491 (Miss. 1994) [**11] (citing Matter of Estate of Mason v. Fort, 616 So. 2d 322, 327 (Miss. 1993)).

P19. However, notwithstanding Buck’s failure to supply any authority in support of her proposition that allowing a thirteen-year old to sleep in a bunk bed not equipped with guard rails constitutes negligence per se, we refuse to embrace such a proposition. Therefore, we affirm the decision of the trial court granting summary judgment to the Appellees.

P20. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES AND LEE, P.JJ., CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. MYERS, J., NOT PARTICIPATING.