Connecticut has been moving towards the defendant is liable no matter what attitude.
Plaintiff: John F. Wynne, Jr., Administrator of the Estate of Hunter E. Brothers
Defendant: Summerland, Inc. dba Camp Kenwood, David B. Miskit and Sharon B. Miskit, Camp Directors
Plaintiff Claims: negligence
Defendant Defenses: individuals not personally liable and dangers were open and obvious to the plaintiff.
Holding: For the plaintiff, Connecticut statute creates personal liability for the camp directors and the open and obvious argument is a genuine issue of material fact to be determined by the jury.
Another case with good information, however, the case is probably not decided yet and the basis for the decision could be different than first reported.
The facts are spotty in this decision. The deceased was a thirteen-year-old girl attending the defendant Camp Kenwood. As part of the camp, the plaintiff was mountain biking on Bald Hill Road. The road gets steeper as it descends.
The camper was biking on the road and seems to have run off the road which caused her fatality. The administrator of her estate sued the camp and the camp directors individually.
Summary of the case
This appeal was of a denial of a motion for summary judgment. The motion looked at two issues. The first was the individual camp directors should not be personally liable for the plaintiff’s claims. The second was the case should be dismissed because the risks of the riding a bike on that road is open and obvious.
The individual liability issue was the first examined by the court. Connecticut has several statutes regulating summer camps for minors. One of those statutes C.G.S. §19a-422(c) states:
[T]here shall be adequate and competent staff, which includes the camp director or assistant director, one of whom shall be on site at all times the camp is in operation, activities specialists, counselors and maintenance personnel, of good character and reputation.
Another statute C.G.S. §19a-428(a) states:
“The Commissioner of Public Health shall adopt regulations, in accordance with the provisions of chapter 54, relating to the safe operation of youth camps, including, but not limited to, personnel qualifications for director and staff….
The regulations adopted by the Commissioner of Public Health, included Regs., Connecticut State Agencies §19-13-B27a which states:
(1) No person shall establish, conduct or maintain a youth camp without adequate and competent staff. (2) The camp director shall be over the age of twenty-one and of good character, shall not have been convicted of any offense involving moral turpitude, shall be certified as mentally competent by a physician, shall not use improperly any narcotic or controlled drug, and shall uphold and maintain the standards required under the Youth Camping Act. Except for those persons who have already served at least one summer as a camp director, a camp director shall have at least sixteen weeks administrative or supervisory experience, in an organized camp or in lieu thereof equivalent training or experience in camping satisfactory to the commissioner.
Responsibility of management. The camp director shall be responsible at all times for the health, comfort and safety of campers and staff and shall have responsibility for maintaining in good repair all sanitary appliances on the camp ground. He shall promptly prosecute or cause to be ejected from such ground any person who willfully or maliciously damages such appliances.
The plaintiffs argued that because the statutes and regulations created a duty on the part of the directors to care for the “health, comfort and safety of camps” any injury to a camper created personal liability on the part of the camp director.
The defendant argued that liability for actions of a corporation, which owned the camp, could not be imputed to an individual, which is the law in most jurisdictions. That is the argument normally made in this situation where the employee is only acting on behalf of the employer or corporation and as such the corporation has the liability. However, the statutory scheme of Connecticut eliminated that defense.
Consequently, the court easily found that the statutory and regulatory framework in Connecticut created personal liability on the camp director.
The Open and Obvious argument was easier for the court to decide. Even though two camp counselors had warned the deceased of the risks of the road, and the road’s risks were discernible to any rider, the court found that whether or not a thirteen-year-old camper recognized and understood the risks was a decision for a jury.
So Now What?
Part of any plan to develop a business must look at any statutes that apply to the business. At the same time, when the legislature is making laws that may apply to your business you need to become involved and make sure the laws will not make your business life miserable or create liability.
If the statutes or regulations create liability either for the organization, business or program which you do not want to deal with or personal liability, make sure you want to deal with that state. In the alternative make sure can afford the insurance you will need.
Here what could probably appear to be a harmless statute created personal liability for the camp director. Normally, this is a “play” made by the plaintiff to try to increase the value of the case.
However, one issue that should be explored by any camp or outfitter is if the insurance coverage of the corporation provides a defense to individuals for actions of the individual who create statutory liability.
Absent that protection, the individual defendants could be personally liable for any damages. Their homeowner’s insurance would not provide coverage for the liability that occurs because of work. Whether or not their corporate documents, articles and bylaws, provide for indemnification of employees or the board of directors is willing to pay for the damages, the employees could be stuck with the bill personally. Dependent upon how the damages are paid; this could also create a tax liability for the individuals. The final issue is whether the insurance policy provides coverage for employees liable individually.
Whenever you are dealing with kids 12-14 years of age and younger, it is fairly impossible to prove assumption of the risk or the sub-set defense of open and obvious. Unless you have a record of prior experience, a video proving the training, you are going to have a difficult time with this defense.
What do you think? Leave a comment.
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