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.
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
Holding: For the defendant Camp
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.
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.
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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)Posted: April 17, 2018
[**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
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.
Hon. Thomas P. Aliotta
Dated: September 18, 2013
And just because I lawyer writing in a bicycle magazine says it does, does not change the law.
The article Be a Fearless Leader gives the impression that being a group leader in a ride and offering advice or sprinting at the end is enough to create liability for the leader. IT’S NOT!
To be liable, you must be negligent. Negligence has four components. All four components must be proven for someone to be negligent. Those components or steps are:
- Breach of the Duty
- Injury proximately caused by the breach of duty
Step one is the major stumbling block in a situation like this. What duty does a group ride leader owe to anyone else in the group ride? If everyone is riding voluntarily, then there is no duty unless you create a duty.
To create a duty you must create reliance or a need in someone that you then must fulfill or not ignore. By that I mean in a group ride situation you must say to the other riders either something that makes them think that you are responsible for them. You must say that the ride is safe or something that takes away their ability to be responsible for their own safety.
An example of the first situation would be having someone in the group say something like:
I’ve checked this route out, and I know it is absolutely safe. You can rely on me; this is a safe route. You will not get hurt on this ride.
There will be no cars on the course today.
First of all, who would say something that dumb and secondly, who would rely on that statement.
An example of the second situation would be:
You can only ride behind the group, and you must follow the group. You can’t leave until we get to the finish.
Run that red light.
In the first situation, you are saying to the people I am the leader, and you can rely upon me for your safety. In the second scenario, you are just being an idiot or a jerk.
The article goes even further. It mentions control and implies that if you pick the route or offer advice, you are in control. What ride doesn’t involve giving advice? What group of cyclists can get together and not start making comments and giving advice (a really boring group that’s who). For that matter what time would you have to get up to start getting a consensus form a group of cyclist on the route? How would you prepare for a route unless someone picked it in advance?
Why would you go on a group ride if you did not think you could learn something and become a better rider? I would get better if I learned a new route, picked by somebody. If someone does not want to do that route today, say fine, ride whatever you want.
The article suggests to not make the ride competitive and to avoid pushing anyone’s limits. Yeah, I want to go out on a group ride and meander in at the end. The end is where it is at. The sprint. Why join a group ride if the ride is not going to push you? Besides why go if you are not going to push me?
The last statement is the icing on the cake. Have the rider’s sign a release written by an attorney. That’s not a group ride that is a competitive ride, a grand fondo or something that everyone pays to enter where they get a shirt. Not many Saturday morning rides hand out t-shirts at the end. Besides who can afford to hire an attorney to write a release just for a non-competitive get together with no leader?
The author does not follow his own advice see 11 Ways To Get the Most Out of Your Group Ride where he states that putting the hammer down on a group ride is OK. The author writes great articles on how to sue people. That is how he makes a living, by suing people, drivers and bicycle manufactures. If you don’t want to be sued, get advice from someone who works in that area of the law, preventing lawsuits, not starting them.
The problem is the suggestions in the article on how to run a group ride either make it a “no ride” because no one is going to show up or because you did everything (like getting a release) which makes you a leader and POSSIBLY liable.
Lawsuits get started because you are stupid, mean or nasty 99% of the time. Be nice and you won’t have to worry about the lawsuits. For the other 1% of the time make sure your homeowner’s insurance and/or automobile policy will cover these situations.
Let everyone know that a group ride is fun, hard, people will get dropped, and you are on your own. You can ride or not ride and you dare anyone to try to kick your butt at the end.
Races and big rides where you pay money get sued because they make promises which they fail to keep. Don’t make any promises you can’t keep or that you don’t want to have the world know about. Don’t run your group ride like a race or tell everyone how the ride is going to be done to get a jersey at the end and you’ll be OK.
I have a better idea. Have everyone in your group ride read that article. Anyone who says they like it, agree with it or think it’s right, tell them to go ride with the author because they can’t ride with you. Have everyone else read this article and make sure they understand it.
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