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

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

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

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

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

Defendant: Martin Alvero (I think)

Plaintiff Claims: Negligent Supervision

Defendant Defenses: No Duty

Holding: For the Defendant

Year: 1999

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

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

The ice ball was allegedly the first snowball thrown.

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

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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

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

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

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

98-06867

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

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

April 26, 1999, Argued

June 14, 1999, Decided

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

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

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

OPINION

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

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

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

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

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

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

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


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

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

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

Date of the Decision: October 9, 2013

Plaintiff: Davide E. Gomes

Defendant: Boy Scouts of America, et al.,

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

Defendant Defenses:

Holding: For the defendant Boy Scouts of America

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

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

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

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

Summary of the case

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So?

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

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

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

So Now What?

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

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

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

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

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

You might even have them sign a release.

Plaintiff: Josephine Moore

 

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

 

Plaintiff Claims: Premises Liability and Negligence

 

Defendant Defenses: not triable issues of fact, no negligence

 

Holding: Trial court dismissal was affirmed

 

 

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

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

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

B170389

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

2004 Cal. App. Unpub. LEXIS 11180

December 10, 2004, Filed

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

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

DISPOSITION: Affirmed.

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

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

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

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

OPINION BY: ALDRICH

OPINION

INTRODUCTION

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

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

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

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

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

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

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

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

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

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

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

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

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

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

2. Procedure.

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

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

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

The Boys Scouts brought a motion for summary judgment.

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

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

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

Judgment was entered against Moore, from which she appealed.

DISCUSSION

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

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

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

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

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

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

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

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

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

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

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

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

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

DISPOSITION

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

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

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

Wednesday January 23 at 10:30 AMBSA-logo

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

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

 

Wednesday January 23, at 1:30

The Outdoor Recreation Retail Store: Liability IssuesBSA On The Go

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

See you there!

What do you think? Leave a comment.

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

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

Decision was a rare case were lawsuit was not brought until after the injured minorHistory of the Boy Scouts of America reached age 18

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

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

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

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

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

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

Summary of the case

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

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

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

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

508:14  Landowner Liability Limited.

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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

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

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

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

What do you think? Leave a comment.

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

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

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

Civil No. 08-cv-45-JL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

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

February 3, 2010, Decided

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

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

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

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

OPINION BY: Joseph N. Laplante

OPINION

[*183] OPINION AND ORDER

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

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

1 Document no. 28.

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

I. Background

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

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

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

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

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

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

II. Analysis

A. Boston Minuteman’s motion for summary judgment

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

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

1. The recreational use statute

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

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

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

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

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

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

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

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

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

2. The open and obvious danger doctrine

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

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

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

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

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

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

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

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

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

B. The BSA’s motions in limine

1. The motions to exclude Reed’s medical bills

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

. . .

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

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

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

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

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

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

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

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

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

III. Conclusion

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

13 Document no. 28.

14 Document nos. 46, 48.

15 Document no. 47.

SO ORDERED.

/s/ Joseph N. Laplante

Joseph N. Laplante

United States District Judge

Dated: February 3, 2010

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Kids get hurt and some kids die

If you want your kids to play sports, enjoy the outdoors, and have fun, you have to accept the fact your kid will suffer an injury and some of those injuries are fatal.

If parents continue to sue volunteers and programs for their kids injuries, there are not going to be programs for kids. The facts of life say that the cost of providing a program for a kid by volunteers is going to reach a maximum, and those programs will end.

Most programs provide insurance for their volunteers. No matter how the coverage is provided, the volunteers own homeowner’s policy is the primary general liability policy. Eventually, when applying for homeowners insurance, there may be a question about volunteer activities. There is already a question about whether or not you have been sued in the past.

What about the time issues for a new volunteer. You want to be an assistant coach for your kids and the neighbor kids. You go to the first meeting and find out you have to take 20 hours of training before you can attend the first practice and several more hours after that. Is it worth the effort?

Think about the effects on our economy. No more free, after school, babysitting. Parents will have to trust their kids at home by themselves rather than sending them off to a volunteer.

Better, programs are going to require parents to be at all activities, including meetings and practices.

Seriously, would you take a kid backpacking knowing you be sued when you get home because he or she tripped over a stove and spilt hot pasta water on their foot. (Been there, took them to the hospital.)

So?

1.   Programs are going to have to step up to the bar and require parents to sign releases and/or acknowledgment of risk forms, which state:

a.   The parent is aware and understands all the risks of the sport or activity.

b.   The parent has watched all the required videos online.

c.   The parents agree to arbitration or mediation for all disputes and where applicable a limitation of damages.

2.   Volunteers are going to have to make the programs have an attorney prepare a release.

3.   Volunteers need to make sure they buy the maximum amount of liability coverage for their homeowner’s policy they can.

a.   You may consider an umbrella insurance policy to provide more coverage.

4.   You need to meet with parents and create minimums. If not enough parents are available for practices or games, the kids are sent home. If you say I need 10 parents to go with the 20 kids on this weekend camping trip and nine show up, you and the nine parents get a free weekend after you take all 10 kids home.

5.   If you are a volunteer or a parent, consider having all parents and volunteers take the Boy Scouts of America (BSA) Guide to Safe Scouting (GSS) program. More information on the BSA GSS can be found here.

a.   The BSA GSS safeguards kids but it will also protect you.

Don’t stick your neck out for the kids when their parents may chop them off.

What do you think? Leave a comment.

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

Denver Cycling Wear Manufacturer Primal Wear is sponsoring a BSA Cycling Merit Badge Clinic

Cycling apparel maker teams up with Boy Scouts for Merit Badge and Jersey

Primal Wear has teamed up with the Boy Scouts of America, Denver Area Council for a merit badge clinic. The clinic will take place over 16 weeks and has been limited to 20 scouts. Courses and rides will be bi-weekly and will complete individual requirements of the merit badge per session. “It’s great being able to provide a cycling program for the Scouts with Primal, one of the recognized leaders in the cycling community.” Said Dave Whitner, Denver Area Council Program Director.

In addition to the cycling merit badge program, Primal has produced a cycling jersey that is available for purchase online at http://rec-law.us/M5JzaI. The jersey is a sport cut raglan design featuring the BSA logo. The proceeds from the purchase of the jersey go to benefit the Denver Area Council.

For Information on the 16 Week Program go HERE.

Merit badge (Boy Scouts of America)

Merit badge (Boy Scouts of America) (Photo credit: Wikipedia)

If you want to purchase the Denver Area Council Cycling Jersey with 15% of the proceeds go HERE.  It is a beautiful Jersey! Order a Jersey, look good when you ride and support Primal Wear and the Denver Area Council of the Boy Scouts of America.

What do you think? Leave a comment.

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Youth and Adult Molesters

Parks and Rec Business Magazine has a great article on background checks for adult volunteers of youth sports. It is a well written and well researched article that talks about an issue that is a common theme in many of my articles. The actions that people are taking only lull them into believing they are doing the right thing. In reality they are wasting time and money. The article Background Checks: Do they really get the job done? points out that most background checks are not going to find molesters.

What the article points out is no matter what an organization does, bad people are going to get through. In order to prevent this from happening, Parents must be involved in the process and keep their eye on the program and their children. Parents must make sure their child is never in a position where they can become a target. For an excellent discussion about this and a program to train kids see the Boy Scout of America program Guide to Safe Scouting. Several other sports organizations have developed similar programs.

From the Parent’s perspective you just can’t expect someone else to babysit your kids. No program whether sports oriented or program oriented is designed to work without the involvement of parents. The Boy Scouts of America requires the parent to agree to become involved when they sign their child up to be a scout. Dropping you children off and picking them up several hours later is a recipe for disaster both for you and your child.

For adult volunteers, be very wary of any parent who simply drops their kids off at your program. If you don’t know the parent, you will if something goes wrong and you won’t want too. The parents who sue are the ones who have no involvement in the program.

While investigating Boy Scout lawsuits I discovered one recurring theme. I boiled that analysis down to one simple question to determine whether or not a parent would sue for an injury to their child. The question? What is the name of the adult leader? If the parent answered Mr. Jones or Mr. Smith there was going to be a lawsuit. If the parents answered Bob or Jim then there was probably not going to be a lawsuit.

The difference was not the answer but how well the parents knew the person who was taking care of their kid and more importantly how well the parents were involved in the program. A parent who was involved in the program did not sue. Those parents knew how the program worked, invested their time in the program and were involved. Those parents knew the adult volunteer as a friend, as someone who invested their time and as such knew them by their first name.

Parents who were not involved did not understand the program, the work, the commitment the time it took adult volunteers to keep their child active and involved. Those parents were recognized more by their cars taillights because the only thing they saw was the parent driving away after dropping off the child.

Parents who are not involved or who do not understand the program are also the ones who will sue. They have no understanding of what the program is trying to accomplish or their understanding is superficial. They see a sports program as purely their child playing ball. They see the BSA or GSA as purely their child going camping. They have no concept of the time the volunteer invests. They do not understand the goals of the program and how those goals are achieved by the activity and not vice versa.

These parent’s kids are also the most likely to be molested because their parents are not around. A molester is looking for the kid that they can find alone. They stand out because they are out standing waiting to be picked up rather than being walked to their car by their parents.

Those programs can also be spotted by parents. Just as the victims are identified as being the ones left alone by parents, the problem adult volunteers are also alone. They seem to be the total and complete volunteer. They drive away or discourage help from other volunteers. They do not want help because it interferes with their ultimate goals.

Both types of people, children with no parental involvement and adults with no other parental involvement are possible problems.

 

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BSA develops successful defense strategy: Train your attorneys

The Boy Scouts of Americawent from a poor win record to almost a perfect record by organizing and training their attorneys. Business Insurance

History of the Boy Scouts of America

Image via Wikipedia

reported in an article Risk Manager of the Year, published April 24, 2006 that the BSA’s risk manager had organized their defense counsel to make these dramatic changes. In doing so the Risk Manager, Debra Griffith, became the Manager of the Year for her success.

The first approach was to create a unified defense strategy. One law firm was hired to coordinate all lawsuits. This took the claims out of the hand of the insurance company who hired good counsel but never provided additional support for the defense attorneys. Information and successfully strategies where then routed to all attorneys handling cases providing solid ideas and information.

A second approach was to make sure all interrogatories where reviewed by the BSA defense team. This made sure that all interrogatories were answered correctly and the same way.

If you did not know, the plaintiff’s bar has been filing documents for years so answers to interrogatories form another case can be searched to find inconsistencies.

The third idea, and to a large extent the most controversial was a unified training program of all defense counsel…..at a Boy Scout Camp. This allows the defense counsel to get a real feel for the BSA and how the program works. These training programs encourage information and idea sharing both at the conference and when the attorneys go back to home.

It is this last idea that I find so exciting and valuable. From studying motions and briefs and talking to other attorneys in cases the only difference between winning and losing is not the facts of the case but how well the attorneys representing the defendant understand what the defendant was trying to accomplish and how. It is one thing to understand the problems when someone is injured on a ropes course. It is another when the defense team understands the physics of the activity as well as the goals of the participants in the activity.

Another way of looking at this is horseback or equine suits. Falling off a horse produces the same type of defenses: release, equine law and assumption of the risk. However the risks can be explained in a much better way when the plaintiff was part of a weeklong camp program versus someone who rented a horse for a day. The education and care that a camp provides is much different and creates a very different atmosphere from a trail ride offered out the back door of a conference center. Knowing why people are riding the horse can be important in defending a case as knowing the legal issues.

Reading between the lines is to not leave this solely to your insurance company. They will not hire the best law firm, they will not assist in training or getting the firm up to speed, they rarely understand your program and they won’t support you if the dollars look better to sette.

My own experience supports this idea. In the outdoor recreation industry we win cases when the defense firm understands what they are defending rather than throwing the case in their pot and following the same old strategy. Outdoor recreation is different from an auto accident, a fuel spill and a breach of contract. The participants and the outfitters/facilitators/guides are working together to accomplish goals. These facts combined with an attorney who understands the goals of the program, the program and the defenses create a win.

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