Release for a health club which had a foam pit included language specific to the injury the plaintiff suffered, which the court used to deny the plaintiff’s claim.

Argument made that the word inherent limited the risks the release covered and as such did not cover the injury the plaintiff received.

Macias, v. Naperville Gymnastics Club, 2015 IL App (2d) 140402-U; 2015 Ill. App. Unpub. LEXIS 448

State: Illinois, Appellate Court of Illinois, Second District

Plaintiff: Kamil Macias

Defendant: Naperville Gymnastics Club

Plaintiff Claims: negligent in its failure to properly supervise the open gym, train participants, and warn participants of hazards and dangers accompanied with activities and use of equipment in the open gym

Defendant Defenses: Release

Holding: For the Defendant

Year: 2015

Summary

Plaintiff was injured jumping headfirst into a foam pit at the defendant’s gym. The plaintiff had signed a release relieving the defendant of liability, which was upheld by the trial court and the appellate court.

For the first time, the plaintiff argued the release was limited by the language in the release because it used the term inherent in describing the risks. Inherent limits the risks, to those that are part and parcel of the activity and the injury that befell the plaintiff was a freak accident.

Facts

The plaintiff went to the defendant club during open hours when the public could attend with a friend. He paid an admission fee and signed a release. The club had a foam pit. The plaintiff watched other people jump into the pit then tried it himself. He jumped off the springboard and instead of landing feet first he landed head first in the pit.

The plaintiff broke his neck requiring extensive surgery and rehabilitation.

The defendant club filed a motion to dismiss based upon the release signed by the plaintiff. The trial court denied the motion to dismiss because the release was ambiguous.

During discovery, the plaintiff admitted he did not see the rules of the gym but did understand the risks of landing in the pit head first.

Walk around all pits and trampolines,” and he stated that he understood what this meant. The rules also stated: “Do not play on any equipment without proper supervision,” and “Do not do any gymnastics without proper supervision,” and plaintiff stated that he understood what these meant. Plaintiff also stated that he did not see a sign painted on the wall in the gym titled, “Loose foam pit rules.” That sign stated: “Look before you leap,” “No diving or belly flops,” and “Land on feet, bottom or back only.” Plaintiff acknowledged that he understood what these meant

After discovery, the defendant club filed a motion for summary judgment based on the additional information collected during discovery. The trial court granted that motion, and this appeal was dismissed.

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

The appellate court looked at contract law in Illinois.

The primary objective in construing a contract is to give effect to the parties’ intent, and to discover this intent the various contract provisions must be viewed as a whole. Words derive meaning from their context, and contracts must be viewed as a whole by examining each part in light of the other parts. Id. Contract language must not be rejected as meaningless or surplusage; it is presumed that the terms and provisions of a contract are purposely inserted and that the language was not employed idly.

A release is a contract. For the release to be valid and enforceable, it should:

…contain clear, explicit, and unequivocal language referencing the types of activities, circumstances, or situations that it encompasses and for which the plaintiff agrees to relieve the defendant from a duty of care. In this way, the plaintiff will be put on notice of the range of dangers for which he assumes the risk of injury, enabling him to minimize the risks by exercising a greater degree of caution.

The court found the injury suffered by the plaintiff fell within the scope of the possible injuries of the release and contemplated by the plaintiff upon signing the release.

Two clauses in the release stated the plaintiff was in good physical health and had proper physical condition to participate. The plaintiff argued these clauses made the release ambiguous; however, the appellate court did not find that to be true.

Here is the interesting argument in the case.

I have repeatedly stated that releases that limit releases to the inherent risk are limited in their scope. The plaintiff made that argument here.

Plaintiff argues that the use of “inherent risk” language throughout the release creates an ambiguity as to whether the language covers only dangers inherent in gymnastics and not freak accidents. We also reject this argument. As previously stated, the release specifically lists landing on landing surfaces as an inherent risk. Thus, there is no ambiguity as to whether plaintiff’s injury was covered by the release.

The plaintiff also argued his injury was not foreseeable because:

… (1) he lacked specialized knowledge of gymnastics and, in particular, foam pits, to appreciate the danger and foresee the possibility of injury, and (2) his injury was not the type that would ordinarily accompany jumping into a foam pit.

The argument on whether the injury was foreseeable is not whether the plaintiff knew of the risk but:

The relevant inquiry is not whether [the] plaintiff foresaw [the] defendants’ exact act of negligence,” but “whether [the] plaintiff knew or should have known” the accident “was a risk encompassed by his [or her] release.

The court found the injury the plaintiff received was on that was contemplated by the release.

Thus, the issue here is whether plaintiff knew or should have known that the accident was a risk encompassed by the release which he signed. As previously determined, the language of the release in this case was specific enough to put plaintiff on notice. In discussing inherent risks in the sport of gymnastics and use of the accompanying equipment, the release lists injuries resulting from landing on the landing surfaces, which includes injuries to bones, joints, tendons, or death.

The plaintiff also argued the release violated public policy because the release was presented to “opened its gym to the unskilled and inexperienced public” when it opened its gym to the public.

The court struck down this argument because the freedom to contract was greater than the limitation on damages issues.

The appellate court affirmed the trial court’s granting of the summary judgment for the defendant based on the release.

So Now What?

The inherent risk argument here was made but either not effectively argued by the plaintiff or ignored by the court. However, for the first time, the argument that the word inherent is a limiting word, not a word that expands the release was made in an argument.

What do you think? Leave a comment.

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Macias, v. Naperville Gymnastics Club, 2015 IL App (2d) 140402-U; 2015 Ill. App. Unpub. LEXIS 448

Macias, v. Naperville Gymnastics Club, 2015 IL App (2d) 140402-U; 2015 Ill. App. Unpub. LEXIS 448

Kamil Macias, Plaintiff-Appellant, v. Naperville Gymnastics Club, Defendant-Appellee.

No. 2-14-0402

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

2015 IL App (2d) 140402-U; 2015 Ill. App. Unpub. LEXIS 448

March 10, 2015, Order Filed

NOTICE: THIS ORDER WAS FILED UNDER SUPREME COURT RULE 23 AND MAY NOT BE CITED AS PRECEDENT BY ANY PARTY EXCEPT IN THE LIMITED CIRCUMSTANCES ALLOWED UNDER RULE 23(e)(1).

PRIOR HISTORY: [**1] Appeal from the Circuit Court of Du Page County. No. 11-L-1418. Honorable Judges Hollis L. Webster and John T. Elsner, Judges, Presiding.

DISPOSITION: Affirmed.

CORE TERMS: gym, pit, landing, summary judgment, foam, exculpatory clause, gymnastics, release agreement, surface, inherent risk, jumping, discovery, ambiguity, exculpatory, deposition, injury resulting, public policy, risk of injury, physical condition, releasing, ambiguous, sport, bones, supervision, de novo, springboard, encompassed, notice, undersigned, climbing

JUDGES: JUSTICE BURKE delivered the judgment of the court. Presiding Justice Schostok and Justice Zenoff concurred in the judgment.

OPINION BY: BURKE

OPINION

ORDER


Held: Release agreement for the gym was sufficiently clear, explicit, and unequivocal to show intent to protect facility from liability arising from use of its “foam pit”; it was proper for the gym to raise the issue it had raised in the section 2-619 motion in a summary judgment motion as it alleged new facts which were developed during discovery that affected the validity of the release; affirmed.

[*P2] Plaintiff, Kamil Macias, filed a complaint against defendant, Naperville Gymnastics Club (the Club), for injuries he received after jumping off a springboard and landing head first into a “foam pit.” The trial court denied the Club’s motion to dismiss, pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2010)), but it later granted the Club’s motion for summary judgment based on a liability release agreement signed by plaintiff. Plaintiff raises several issues on appeal concerning the release and the effect of the earlier [**2] section 2-619 motion to dismiss. We affirm.

[*P3] I. BACKGROUND

[*P4] On January 15, 2011, plaintiff came to the Club with his friend. The Club offers “open gym” hours where members of the Club and the general public can attend. Plaintiff, who was not a member of the Club, paid a $10 admission fee and he signed a liability release agreement.

[*P5] A foam pit was located in the gym. After seeing participants jumping into the pit, plaintiff jogged up to a springboard in front of the pit, jumped onto the board and into the pit. While attempting to jump feet first, plaintiff’s body moved in the air, causing him to land head first, striking the bottom of the pit. Plaintiff immediately lost all feeling in his body below the neck. He remained in the pit covered by pieces of foam until he was extracted by the Naperville Fire Department. At the time, plaintiff was 20 years old, about 6 feet tall, and weighed 310 pounds. As a result of the accident, plaintiff suffered a broken neck, requiring extensive surgery and rehabilitation. Plaintiff filed a complaint alleging the Club was negligent in its failure to properly supervise the open gym, train participants, and warn participants of hazards and dangers accompanied with activities [**3] and use of equipment in the open gym.

[*P6] The Club filed a section 2-619(a)(9) motion to dismiss (735 ILCS 5/2-619(a)(9) (West 2010)), alleging that plaintiff signed a two-page liability release agreement that contained an exculpatory clause releasing the Club from liability for any acts of negligence.

[*P7] The trial court found the release ambiguous and denied the section 2-619(a)(9) motion without prejudice. In denying the motion, the judge stated that she felt it was inappropriate to dismiss the suit at that point, that there was case law on both sides of “these exculpatory clauses,” and the judge agreed that it was something that could be developed through discovery. She further stated, “But I think it’s something that is better suited for a summary judgment motion if the facts do bear that out from the defense’s perspective.”

[*P8] During discovery, plaintiff was questioned by defense counsel and testified to the following:

“Q. Okay. That first part of the form it says, ‘To gain admission to the activity areas of [the Club], all parts of this form must be read, understood, and signed.’ Do you see that?

A. Yes.

Q. And did you understand what that means?

A. Yes.

* * *

Q. Did you understand this to be an agreement on January 15th, 2011[,] between you and [the [**4] Club]?

A. Had I read this agreement I would have understood.

* * *

Q. And you understand that [the release] means that when you sign it that you’re agreeing to not bring any lawsuit against [the Club]?

A. Correct.

Q. And if you had read it on January 15th of 2011, that’s what you would have understood it to mean?

A. Correct.

* * *

Q. And you agree that the sport of gymnastics is a risky sport?

A. Correct.

Q: And you would have felt the same on January 15th, 2011[,] before your accident?

A. Yes.”

[*P9] At the entrance to the gym was a closed door with a window pane in it. Plaintiff did not recall seeing a sign on the door entitled, “Rules of the Gym.” Plaintiff reviewed the rules at his deposition and admitted that it said to “Walk around all pits and trampolines,” and he stated that he understood what this meant. The rules also stated: “Do not play on any equipment without proper supervision,” and “Do not do any gymnastics without proper supervision,” and plaintiff stated that he understood what these meant. Plaintiff also stated that he did not see a sign painted on the wall in the gym titled, “Loose foam pit rules.” That sign stated: “Look before you leap,” “No diving or belly flops,” and “Land on [**5] feet, bottom or back only.” Plaintiff acknowledged that he understood what these meant.

[*P10] After discovery, the Club filed a motion for summary judgment, arguing that plaintiff’s claim was barred by the exculpatory clause of the release signed by plaintiff. The motion included the deposition testimony and that (1) plaintiff denied being given any verbal instructions and denied seeing the warning signs or rules posted in the gym before he was injured, and (2) plaintiff admitted that he would have understood the terms of the liability release, had he read it. Following argument, the trial court granted the Club’s motion for summary judgment. This timely appeal follows.

[*P11] II. ANALYSIS

[*P12] A. Standard of Review

[*P13] Summary judgment is appropriate “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2010). The motion should be denied if there are disputed facts, but also if reasonable people could draw different inferences from the undisputed facts. Wood v. National Liability & Fire Insurance Co., 324 Ill. App. 3d 583, 585, 755 N.E.2d 1044, 258 Ill. Dec. 225 (2001). We review an order granting summary judgment de novo. Pielet v. Pielet, 2012 IL 112064, ¶ 30, 978 N.E.2d 1000, 365 Ill. Dec. 497.

[*P14] We review the parties’ [**6] liability release agreement in accordance with well-established contract principles. Joyce v. Mastri, 371 Ill. App. 3d 64, 74, 861 N.E.2d 1102, 308 Ill. Dec. 537 (2007). The primary objective in construing a contract is to give effect to the parties’ intent, and to discover this intent the various contract provisions must be viewed as a whole. Kerton v. Lutheran Church Extension Fund, 262 Ill. App. 3d 74, 77, 634 N.E.2d 16, 199 Ill. Dec. 416 (1994). Words derive meaning from their context, and contracts must be viewed as a whole by examining each part in light of the other parts. Id. Contract language must not be rejected as meaningless or surplusage; it is presumed that the terms and provisions of a contract are purposely inserted and that the language was not employed idly. Id.

[*P15] In order for an exculpatory clause to be valid and enforceable, it should contain clear, explicit, and unequivocal language referencing the types of activities, circumstances, or situations that it encompasses and for which the plaintiff agrees to relieve the defendant from a duty of care. Calarco v. YMCA, 149 Ill. App. 3d 1037, 1040, 501 N.E.2d 268, 103 Ill. Dec. 247 (1986). In this way, the plaintiff will be put on notice of the range of dangers for which he assumes the risk of injury, enabling him to minimize the risks by exercising a greater degree of caution. Neumann v. Gloria Marshall Figure Salon, 149 Ill. App. 3d 824, 827, 500 N.E.2d 1011, 102 Ill. Dec. 910 (1986). The precise occurrence which results in injury need not have been contemplated by the parties at the time the contract [**7] was entered into. Schlessman v. Henson, 83 Ill. 2d 82, 86, 413 N.E.2d 1252, 46 Ill. Dec. 139 (1980). It should only appear that the injury falls within the scope of possible dangers ordinarily accompanying the activity and, thus, reasonably contemplated by the plaintiff. Garrison v. Combined Fitness Centre, Ltd., 201 Ill. App. 3d 581, 585, 559 N.E.2d 187, 147 Ill. Dec. 187 (1990). Further, when interpreting a contract containing an exculpatory clause, the court must interpret the scope of the exculpatory provision in the “context of the entire agreement.” Shorr Paper Products, Inc. v. Aurora Elevator, Inc., 198 Ill. App. 3d 9, 13, 555 N.E.2d 735, 144 Ill. Dec. 376 (1990). We review the interpretation of an exculpatory agreement or release of liability authorization de novo. Stratman v. Brent, 291 Ill. App. 3d 123, 137, 683 N.E.2d 951, 225 Ill. Dec. 448 (1997).

[*P16] In Garrison, a member of a health club who was injured when lifting weights on a bench press brought suit against the club and the manufacturer of the press. The trial court entered summary judgment in favor of the club, and the plaintiff appealed. The First District Appellate Court held that the exculpatory clause could not have been more clear or explicit, as it stated that each member bore the “sole risk” of injury that might result from the use of weights, equipment, or other apparatus provided and that the selection of the type of equipment to be used would be the “entire responsibility” of the member. The court found that the injury the plaintiff sustained clearly fell within the scope of possible dangers [**8] ordinarily accompanying the activity of weightlifting. Id. at 585. The court observed that the injury was of a type that would normally be contemplated by the parties at the time the contract was made and, therefore, the court held that it clearly fell within the parameters of the exculpatory clause. Id. See also Hussein v. L.A. Fitness International, LLC, 2013 IL App (1st) 121426, 987 N.E.2d 460, 369 Ill. Dec. 833; Neumann v. Gloria Marshall Figure Salon, 149 Ill. App. 3d 824, 500 N.E.2d 1011, 102 Ill. Dec. 910 (1986).

[*P17] Similar to Garrison and the cases cited above, the release agreement in the present case is clear and specific regarding the risks it covers and the release of the Club’s negligence. It specifically references the inherent risk of injury resulting from landing on landing surfaces, and plaintiff acknowledged in his deposition that this phrase includes the foam pit in which he was injured. The agreement also releases the Club from any and all claims, including those caused by its negligence. Furthermore, plaintiff’s signature certified that he recognized the dangers inherent with climbing and jumping activities and that he voluntarily assumed the risks.

[*P18] Nevertheless, plaintiff raises several arguments regarding the validity of the release and the effect of the earlier section 2-619 motion.

[*P19] B. Ambiguity of the Release

[*P20] 1. First Clause

[*P21] The first clause of the release, which is typed in capital letters, states: [**9]

“BY SIGNING THIS DOCUMENT YOU ACKNOWLEDGE THAT UNSUPERVISED USE OF ANY AREA OF FACILITY IS STRICTLY PROHIBITED AND COMPLETELY AT THE RISK OF THE PARTICIPANT AND THAT THE RULES [OF] EACH AREA BEING UTILIZED ARE UNDERSTOOD PRIOR TO PARTICIPATION!”

Plaintiff asserts that this clause is ambiguous as to whether supervision and a full understanding of the rules of the Club is a condition precedent to releasing defendant from liability. We agree that the first clause, standing alone, might be construed as stating that supervision and a full understanding of the rules of the Club is a condition preceding releasing the Club from liability. However, case law teaches that we must review the language of the release in its entirety in order to interpret the parties’ intent.

[*P22] The release contains a “Covenant Not to Sue for Injury or Damages,” which provides, in relevant part:

“Notice: This is a legally binding agreement. By signing this agreement, you waive your right to bring a court action to recover compensation or to obtain any other remedy for any injury to yourself *** however caused arising out of use of the facilities of [the Club].

I hereby acknowledge and agree that the sport of gymnastics [**10] and the use of the accompanying equipment has INHERENT RISKS. I have full knowledge of the nature and extent of all of the risks inherent in gymnastics and the use of the facilities of the gym, including but not limited to:

***

5. Injuries resulting from landing on the landing surfaces; and

6. Injuries to bones, joints, tendons, or death.

[*P23] The section of the release agreement entitled “Release Indemnification Liquidation Damages and Agreement to Arbitrate” states, in relevant part:

“In consideration of my use of the GYM, I the undersigned user, agree to release on behalf of myself *** [the Club] *** including but not limited to a claim of NEGLIGENCE.”

[*P24] The clause of the release immediately preceding plaintiff’s signature provides that “the undersigned recognize[s] the dangers inherent with climbing and jumping activities,” and the undersigned is “assuming the hazard of this risk upon myself because I wish to participate. I realize that I am subject to injury from this activity and that no form of pre-planning can remove all of the danger to which I am exposing myself.”

[*P25] In reading the release in its entirety, it is clear that the first clause of the release cannot be construed as plaintiff argues. The [**11] release contains no such limitations as it covers a number of activities, including “[i]njuries resulting from landing on the landing surfaces” (i.e. the “foam pit”), releasing the Club from negligence, and “the dangers inherent with climbing and jumping activities.”

[*P26] 2. Physical Condition Clause

[*P27] Two clauses of the release request the participant to agree that he or she is in good physical health and proper physical condition to participate. Plaintiff cites Calarco v. YMCA of Greater Metropolitan Chicago, 149 Ill. App. 3d 1037, 501 N.E.2d 268, 103 Ill. Dec. 247 (1986), and Macek v. Schooner’s Inc., 224 Ill. App. 3d 103, 586 N.E.2d 442, 166 Ill. Dec. 484 (1991), for the proposition that these types of clauses render the release ambiguous, as it is unclear whether the release only applies to injuries resulting from a participant’s physical ailments. In other words, the release does not apply to participants without physical ailments.

[*P28] We fail to follow the logic of plaintiff’s argument. However, the cases relied on by plaintiff are readily distinguishable. In Calarco, the plaintiff had been injured when metal weights from an exercise machine fell on her hand, breaking her bones. The plaintiff had agreed “to hold free from any and all liability the [defendant] *** for damages which [the plaintiff] may have or which may hereafter accrue to [the plaintiff] arising out of or connected with [the plaintiff’s] participation [**12] in any of the activities of the [defendant].” We held that the exculpatory clause in the membership application for the defendant’s facility was insufficient to protect the defendant from liability as a matter of law because the clause did not adequately describe the covered activities to clearly indicate that defendant’s negligence would be covered by the release. Calarco, 149 Ill. App. 3d at 1043-44. We further noted that the statement immediately following the alleged exculpatory language contained a declaration of physical health by the signer, and that the combination of the two provisions further complicated the interpretation of the release. Id.

[*P29] In Macek, the plaintiff participated in an arm wrestling contest with a machine that broke his arm. The court held that summary judgment was inappropriate because the release did not specify the covered activities but rather merely indicated that damages for “all injuries suffered” are waived. The court found further that the line immediately following the exculpatory language regarding the signer’s physical condition provided additional ambiguity. Id. at 106.

[*P30] In both Calarco and Marek, the releases did not specify the covered activities and did not specifically cover the defendants’ [**13] negligence. Both courts held that the physical condition clause simply added to the ambiguity of the release. However, contrary to Calarco and Marek, the release in this case clearly covers the activities in question and specifically releases defendant from liability for its negligence.

[*P31] 3. Inherent Risk Language

[*P32] Plaintiff argues that the use of “inherent risk” language throughout the release creates an ambiguity as to whether the language covers only dangers inherent in gymnastics and not freak accidents. We also reject this argument. As previously stated, the release specifically lists landing on landing surfaces as an inherent risk. Thus, there is no ambiguity as to whether plaintiff’s injury was covered by the release.

[*P33] C. Forseeability

[*P34] Plaintiff argues that his injury was not foreseeable because (1) he lacked specialized knowledge of gymnastics and, in particular, foam pits, to appreciate the danger and foresee the possibility of injury, and (2) his injury was not the type that would ordinarily accompany jumping into a foam pit.

[*P35] A plaintiff who expressly consents to relieve a defendant of an obligation of conduct toward the plaintiff assumes the risk of injury as a result of the [**14] defendant’s failure to adhere to the obligation. Larsen v. Vic Tanny International, 130 Ill. App. 3d 574, 576, 474 N.E.2d 729, 85 Ill. Dec. 769 (1984). The doctrine of assumption of risk presupposes, however, that the danger which causes the injury is such that it ordinarily accompanies the activities of the plaintiff, and that the plaintiff knows or should know both the danger and the possibility of injury prior to its occurrence. Id. at 576. The standard is a subjective one geared to a particular plaintiff, and the determination ordinarily will be made by a jury. Id. at 576-77.

[*P36] “The foreseeability of a specific danger defines the scope.” Cox v. U.S. Fitness, LLC, 2013 IL App (1st) 122442, ¶ 14, 377 Ill. Dec. 930, 2 N.E.3d 1211. “The relevant inquiry *** is not whether [the] plaintiff foresaw [the] defendants’ exact act of negligence,” but “whether [the] plaintiff knew or should have known” the accident “was a risk encompassed by his [or her] release.” Hellweg v. Special Events Management, 2011 IL App (1st) 103604, ¶ 7, 956 N.E.2d 954, 353 Ill. Dec. 826.

[*P37] Thus, the issue here is whether plaintiff knew or should have known that the accident was a risk encompassed by the release which he signed. As previously determined, the language of the release in this case was specific enough to put plaintiff on notice. In discussing inherent risks in the sport of gymnastics and use of the accompanying equipment, the release lists injuries resulting from landing on the landing surfaces, which includes [**15] injuries to bones, joints, tendons, or death. Plaintiff agreed that the foam pit was a landing surface and that some of the possible injuries that he could sustain at the gym from gymnastics activities included injuries to his bones, and he admitted at deposition that he had not read the release and that, had he read the release, he would have understood it to mean that he could not sue the gym for any injuries he sustained. Based on these facts, plaintiff should have known the risks of injury associated with the activity of jumping into the foam pit. Plaintiff participated in open gym, which reasonably contemplates participating in the use of the accompanying equipment. Plaintiff could have reasonably presumed that, should he jump from a springboard into the foam pit, he might land on his head. It is entirely foreseeable that, if plaintiff accidently fell on his head, he would be hurt by “landing on the landing surfaces,” a risk encompassed by the release agreement. See Oelze v. Score Sports Venture, 401 Ill. App. 3d 110, 121, 927 N.E.2d 137, 339 Ill. Dec. 596 (2010). Although plaintiff suffered a serious injury, we are bound by the release agreement. Accordingly, we find the trial court properly granted summary judgment on the basis that the release barred plaintiff’s negligence [**16] claim.

[*P38] D. Public Policy

[*P39] Plaintiff next argues that it would be against public policy to enforce the release in this case because the Club opened its gym to the unskilled and inexperienced public. Plaintiff does not cite any cases in support of this argument. In fact, the only case he cites, Hamer v. City Segway Tours of Chicago, LLC, 402 Ill. App. 3d 42, 930 N.E.2d 578, 341 Ill. Dec. 368 (2010), is inapposite to his position.

[*P40] Several cases have rejected plaintiff’s argument in the fitness club setting. See, e.g., Kubisen v. Chicago Health Clubs, 69 Ill. App. 3d 463, 388 N.E.2d 44, 26 Ill. Dec. 420 (1979); Owen v. Vic Tanny’s Enterprises, 48 Ill. App. 2d 344, 199 N.E.2d 280 (1964). Had plaintiff, an adult, read the release and disagreed with it, he could have simply refused to participate in open gym. “While exculpatory or limitation of damages clauses are not favored and must be strictly construed against a benefitting party [citation] the basis for their enforcement is the strong public policy favoring freedom of contract.” Rayner Covering Systems, Inc. v. Danvers Farmers Elevator Co., 226 Ill. App. 3d 507, 512, 589 N.E.2d 1034, 168 Ill. Dec. 634 (1992). There does not seem to be any reason in this case to depart from the strong public policy of allowing parties to freely enter into contracts.

[*P41] E. Section 2-619 Motion to Dismiss

[*P42] The Club filed a section 2-619 motion, alleging that plaintiff signed a two-page liability release that contained an exculpatory clause, which released the Club from liability for any acts of negligence. The trial court found the release was ambiguous and denied the motion. However, [**17] the court recognized that disputed facts might affect the validity of the release and indicated that the Club was free to raise the issue again in a summary judgment motion after facts surrounding the execution of the release were developed in discovery.

[*P43] Citing Makowski v. City of Naperville, 249 Ill. App. 3d 110, 117-18, 617 N.E.2d 1251, 187 Ill. Dec. 530 (1993), plaintiff acknowledges that a trial court may allow a party to reassert a defense after previously ruling on the merits only when new evidence is presented. Plaintiff claims that the summary judgment motion did not allege new facts but simply relied on the language of the release as it did in the Club’s section 2-619 motion. We disagree.

[*P44] The Club did allege additional facts in its summary judgment motion that were developed during discovery that affected the validity of the release. Those facts included plaintiff’s acknowledgment that he understood the meaning of the terms of the release, that he understood the inherent risks, and that he understood that the risk of “landing on landing surfaces” would include the foam pit where he was injured. He also testified that had he read the release he would have understood its language to mean that he could not sue the gym for any injuries he sustained. Since we review a summary judgment motion [**18] de novo (Pielet, 2012 IL 112064, ¶ 30), this evidence tends to defeat plaintiff’s ambiguity arguments.

[*P45] III. CONCLUSION

[*P46] For the reasons stated, we affirm the judgment of the Circuit Court of Du Page County granting the Club’s motion for summary judgment.

[*P47] Affirmed.


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

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

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

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

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

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

Plaintiff Claims: Negligent supervision and maintenance of the premises

Defendant Defenses:

Holding: For the defendant Camp

Year: 2013

Summary

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

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

Facts

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

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

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

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

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

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

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

This is the decision concerning the various motions.

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

The camp filed a motion for summary judgment arguing:

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

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

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

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

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

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

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

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

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

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

The it was foreseeable the fight could occur.

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

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

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

So Now What?

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

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

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

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

What do you think? Leave a comment.

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

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

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

Index No. 104585/07

SUPREME COURT OF NEW YORK, RICHMOND COUNTY

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

August 18, 2013, Decided

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

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

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

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

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

OPINION BY: THOMAS P. ALIOTTA

OPINION

DECISION AND ORDER

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Accordingly, it is

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

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

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

ENTER,

/s/

Hon. Thomas P. Aliotta

J.S.C.

Dated: September 18, 2013


When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.

In this case, the national organization was also sued for failing to instruct and enforce the regional organization in the rules, regulations, standards or policies. If you are going to make rules, and you say the rules must be followed you have to make sure you train in the rules and that everyone follows the rules.

If you make a rule you have to enforce it if you are in charge of making rules.
Otherwise, don’t make rules!

T.K., a minor, v. Boys & Girls Clubs of America, et. al. 2017 U.S. Dist. LEXIS 87005 

State: Illinois, United States District Court for the Central District of Illinois, Springfield Division

Plaintiff: T.K., a minor, by and through his natural Father and Next Friend, Timothy Killings, and Timothy Killings, individually

Defendant: Boys & Girls Clubs of America, Boys and Girls Club of Decatur, Inc., and Mary K. Paulin

Plaintiff Claims: negligence and willful and wanton misconduct

Defendant Defenses: Failure to state a claim upon which relief can be granted filed in a Motion to dismiss

Holding: for the plaintiff

Year: 2017

This case is a federal diversity case. That means the plaintiff(s) and the defendant(s) were legally residents of different states, and the amount claimed by the plaintiff was greater than $75,000.00. In this case, the plaintiff was from California, and the Defendant was located in Illinois.

The plaintiff was in Illinois and attending the Decatur Boys & Girls Club, which was part of the America Boys & Girls Club. America Boys & Girls Club was based in Georgia.

America Boys & Girls Club provided policies, procedures, rules, guidelines and instructions to the Decatur Boys & Girls Clubs, and all other Boys & Girls Clubs. The Boys & Girls Clubs are required to follow the operating policies, procedures, rules, guidelines, and instructions.

While attending the club, the plaintiff was taken to a local farm. Neither of the defendants had permission to transport the minor plaintiff to the farm. While there the plaintiff was riding on a trailer (probably a hay ride)that did not have guardrails, seats, seatbelts or other equipment designed from keeping people from falling off. (But then very few hay rides do.) The tractor and trailer were pulled onto a public highway with 15-20 children on it. While on the highway the plaintiff either jumped or fell off or might have been pushed
off sustaining injuries.

The farm trailer was not designed or intended to transport people, and the trailer lacked guardrails, seats, seatbelts, and other equipment that might prevent people from falling off it. Defendant Paulin pulled the trailer, with T.K. and 15 to 20 additional children riding on it, onto a public highway with a tractor defendant.

The issue that the trailer was not designed to be on a highway and did not have seats, seatbelts or other equipment to keep people from falling off was repeatedly brought up by the court.

The defendants filed a motion to dismiss, and this opinion is court’s response to that motion.

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

A motion to dismiss is a preliminary motion filed when the allegations in the complaint do not meet the minimum requirements to make a legally recognizable claim.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Plausibility means alleging factual content that allows a court to reasonably infer that the defendant is liable for the alleged misconduct. A plaintiff’s complaint must suggest a right to relief, “raising that possibility above a speculative level.” “The required level of factual specificity rises with the complexity of the claim.”

When reviewing a motion to dismiss the court must look at the plaintiff’s pleadings as true and any inference that must be drawn from the pleadings is done so in favor of the plaintiff.

To plead negligence under Illinois’s law the plaintiff must prove “…that the defendant owed plaintiff a duty, it breached that duty, and the breach proximately caused plaintiff’s injury.” In Illinois, every person owes all other persons “a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act.”

Whether this duty arises in a particular context depends on “the reasonable foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on defendants.” Id. A child’s caretaker has a duty to protect the child from harm.

It is a legal question to be decided by the court if a legal duty exists.

…the relationship between him and America Boys & Girls Club and Decatur Boys & Girls Club imposed on the two  organizations a duty of care to adequately supervise him and protect him from harm, any unreasonable risk of harm, dangerous instrumentalities, and dangerous conditions.

The plaintiffs argued the duty of care of the two organizations was breached by:

(1) negligently supervising him, (2) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him, (3) failing to warn or failing to adequately warn him of the potential for injury before putting him on the trailer, (4) failing to properly supervise the minors they placed on the trailer, and (5) failing to provide enough staff members to monitor the children they placed on the trailer.

The plaintiff’s also argued there was a greater responsibility and as such duty on the part of the America Boys & Girls Club to train the Decatur club on its rules, regulations and policies and failing to train on them was  also negligent.

T.K. further alleges that it failed to properly train Decatur Boys & Girls Club on the operating policies, procedures, rules, guidelines, and instructions of America Boys & Girls Club, and that it failed to supervise Decatur Boys & Girls Club to ensure that the operating policies, procedures, rules, guidelines, and instructions were followed.

In this case, the duty of care was created by the rules, regulations, policies and procedures created by the America Boys & Girls Clubs upon the Decatur Boys & Girls Club.

The plaintiff went on to argue, and since it was quoted by the court, accepted by the court that:

Defendant Paulin put him on the farm trailer even though Defendant Paulin did not have the requisite permission to  give him a ride on the trailer. Defendant Paulin towed the trailer, while T.K. and 15 to 20 additional children were on board, with a tractor onto a public highway. According to T.K., Defendant Paulin owed him a duty of care to protect him from any unreasonable risk of harm and breached that duty by (1) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him; (2)
failing to warn him of the potential for injury before putting him on the trailer and pulling the trailer onto a public highway; (3) failing to warn him that the trailer was dangerous and not reasonably safe given that the trailer had no railings, barriers, walls, or seats; and (4) creating a dangerous condition by placing him on the trailer and pulling it onto a public highway.

The court held this was enough to create a duty of care and proved a possible negligence claim.

Furthermore, of note was a statement that a statutory violation of a statute in Illinois does not create a negligence per se claim.

A violation of a statute or ordinance designed to protect human life or property is prima facie evidence of negligence. . . . The violation does not constitute negligence per se, however, and therefore the defendant may prevail by showing that he acted reasonably under the circumstances.”

The court then looked at the minor plaintiff’s father claims to see if those met the requirements to prove negligence in Illinois.

To state a negligence cause of action, Mr. Killings must plead enough facts to make it plausible that he was harmed as a proximate result of Defendants’ breach of a duty they owed to him.

However, the father was not able to prove his claim because it is separate and distinct from the minor’s claim. “The fact that Defendants were responsible for T.K.’s well-being on July 17, 2015, does not mean that Defendants had any duty to Mr. Killings.”

It was T.K., not Mr. Killings, who was placed on an unsafe farm trailer and pulled onto a public road. Defendants, therefore, had a duty to exercise ordinary care to prevent injury to T.K., not Mr. Killings. Further, Mr. Killings does not claim that he was physically injured as a result of Defendants’ negligence; his only claimed injury is the money he has spent and the money he will spend in the future for T.K.’s past and future medical treatment. In short, Mr. Killings has not met the pleading requirements for a negligence claim against any Defendant.

The father also pleaded a claim for loss of aid, comfort, society and companionship of his child. However, Illinois’s law does not allow for recovery of those emotional damages unless the child’s injury is a fatality.

The claim is not one for damages stemming from the child’s physical injury, but one founded on the parents’ liability for the minor’s medical expenses under the Illinois Family Expense Act.

However, the father did have a claim for the medical expenses the father paid on behalf of his minor son for the injuries he incurred.

The plaintiff also pleaded res ipsa loquitur.

Res ipsa loquitur allows “proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant.” The doctrine “is meant to bridge an evidentiary gap when an injury could not have happened but for the defendant’s negligence.” Accordingly, res ipsa lo-quitur applies only when the facts “admit of the single inference that the accident would not have happened unless the defendant had been negligent.”

Res ipsa loquitur is a claim that when an incident has occurred, the control of the instrumentality was solely within the control of the defendant.

Under Illinois law, a plaintiff bringing a negligence claim based on the doctrine of res ipsa loquitur must plead that he was injured “in an occurrence that ordinarily does not happen in the absence of negligence” and that it was caused “by an agency or instrumentality within the defendant’s exclusive control.

An example of res ipsa loquitur is a passenger in an airplane that crashes. The pilot is the defendant, and the
control of the airplane is solely with the pilot.

Indeed, the doctrine of res ipsa loquitur can be appropriate if the instrument that caused the injury was in the defendant’s exclusive control “at a time prior to the injury and there is no change in conditions or intervening act that could reasonably have caused the event resulting in the injury.

However, the allegations of the plaintiff did not meet the requirements of res ipsa loquitur in Illinois.

Plaintiff’s final allegation discussed in the opinion was one for willful and wanton misconduct on the part of the defendants. Under Illinois’s law to establish a claim for willful and wanton conduct, the plaintiff must.

…plead facts establishing the elements of a negligence claim–duty, breach, proximate causation, and harm–and “either a deliberate intention to harm or an utter indifference to or conscious disregard for the welfare of the plaintiff.

Generally, this is the same standard to prove willful and wanton conduct in most states. Once the negligence claim is proved, then the allegations only need to support the additional acts as willful and wanton.

Therefore, to state claims for willful and wanton misconduct against Defendants, T.K. need only additionally allege either intentional or reckless willful and wanton misconduct committed by Defendants.

The court defined willful and wanton conduct.

Reckless willful and wanton misconduct is conduct committed with an utter indifference of or a conscious disregard for the safety of others. To meet this standard, the defendant “must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury.

With the allegations plead, the court found sufficient information to confirm the plaintiff going forward with willful and wanton claims. Those allegations include:

Decatur Boys & Girls Club and America Boys & Girls Club placed him and 15 to 20 other minors on an unsafe farm trailer with no guardrails, sidewalls, barriers, or seats while providing inadequate supervision. T.K. further alleges that the trailer was not designed to transport people.

Putting kids on a trailer was a major issue for the court. Kids on a highway on a vehicle not created to transport people were enough to create willful and wanton conduct.

The defendant argued that the allegations that created the negligence claim were also allowed to be the same facts. No new allegations needed to be plead to support the claims for willful and wanton conduct.

Under Illinois’s law, “[t]he same acts by a defendant, if sufficiently egregious, can constitute both negligence and willful and wanton conduct.” Therefore, “one can plead the same facts in two counts, one characterizing them as negligence and the other as willful and wanton conduct, if the same facts could support both theories.

The plaintiff had pled enough facts that the court found relevant and substantial to continue with the negligence and willful and wanton claim.

So Now What?

The actual rules, regulations, procedures were not identified by the court in making its decision. However, the continuous restatement of the plaintiff’s allegations in the same order and words. However, the court specifically stated the defendants failed to follow their own rules.

If you have rules, regulations, policies, procedures, or you must abide by such you MUST follow them. There are no loop holes, exceptions or “just this one time” when dealing with rules, policies and procedures that affect safety or affect minors. If you make them, you must follow them.

If you make them, you must make sure everyone is trained on them. One of the big issues the plaintiff pleads and the court accepted was the rules made by the parent organization were not known or followed by the subsidiary organization. The parent organization when making rules is under a requirement to make sure
the rules are understood and followed according to this decision in Tennessee.

The other major issue was transporting the plaintiff away from the location where the parents thought the plaintiff would be without their permission and then transporting the plaintiff on a road without meeting the requirements of state law, seats, seat belts, etc.

When you have minors, especially minors under the age of ten, you are only acting within the realm and space permitted by the parents. The line that makes me cringe every time I hear it on the news is “If I would have known they were going to do ______________, I never would have let me kid go.” Listen and you
will realize you will hear it a lot when a minor is injured.

You need to prepare your program and your parents so that line is never spoken about you.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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T.K., a minor, v. Boys & Girls Clubs of America, et. al. 2017 U.S. Dist. LEXIS 87005

T.K., a minor, v. Boys & Girls Clubs of America, et. al. 2017 U.S. Dist. LEXIS 87005

T.K., a minor, by and through his natural Father and Next Friend, Timothy Killings, and Timothy Killings, individually, Plaintiffs, v. Boys & Girls Clubs of America, Boys and Girls Club of Decatur, Inc., and Mary K. Paulin, Defendants.

Case No. 16-cv-03056

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION

2017 U.S. Dist. LEXIS 87005

June 6, 2017, Decided

June 7, 2017, E-Filed

CORE TERMS: trailer, willful, farm, wanton misconduct, res ipsa loquitur, negligence claims, pleaded, cognizable, exclusive control, wanton, medical expenses, supervision, pulled, negligence per se, public road, legal conclusions, pulling, seat, factual allegations, right to relief, conscious disregard, indifference, speculative, supervise, reckless, notice, owed, public highway, guidelines, transport

COUNSEL: [*1] For T.K., a Minor, By And Through His Natural Father and Next Friend, Timothy Killings, Timothy Killings, Plaintiffs: Christopher Ryan Dixon, THE DIXON INJURY FIRM, St Louis, MO.

For Boys & Girls Club of America, Boys and Girls Club of Decatur, Inc., Defendants: Randall A Mead, LEAD ATTORNEY, DRAKE NARUP & MEAD PC, Springfield, IL.

For Mary K Paulin, Defendant: Daniel R Price, LEAD ATTORNEY, WHAM & WHAM, Centralia, IL.

JUDGES: SUE E. MYERSCOUGH, UNITED STATES DISTRICT JUDGE.

OPINION BY: SUE E. MYERSCOUGH

OPINION

SUE E. MYERSCOUGH, U.S. District Judge:

Before the Court are Defendants Boys & Girls Clubs of America and Boys & Girls Club of Decatur, Inc.’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count I of the Second Amended Complaint (d/e 32) and Defendant Mary K. Paulin’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count IV of the Second Amended Complaint (d/e 33). The motion filed by Defendants Boys and Girls Club of Decatur, Inc. (Decatur Boys & Girls Club) and Boys & Girls Clubs of America (America Boys & Girls Club) is GRANTED IN PART and DENIED IN PART. Defendant Paulin’s motion is DENIED. In the Second Amended Complaint, T.K., a [*2] minor, through his father, Timothy Killings, sufficiently pleads negligence and willful and wanton misconduct causes of action against all Defendants. In addition, Mr. Killings pleads cognizable claims for T.K.’s past and future medical expenses against all Defendants. However, the allegations of the Second Amended Complaint are not sufficient to render the doctrine of res ipsa loquitur applicable against Decatur Boys & Girls Club or America Boys & Girls Club.

I. BACKGROUND

The following facts come from Plaintiffs’ Second Amended Complaint. The Court accepts them as true at the motion to dismiss stage. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

On July 17, 2015, T.K., a then-eight-year-old resident of California, was a member of Decatur Boys & Girls Club, a corporate citizen of Illinois and a licensed child-care facility. On that same date, Decatur Boys & Girls Club was operating a summer camp through its agents and employees, and T.K. was under the paid care and supervision of Decatur Boys & Girls Club and America Boys & Girls Club. America Boys & Girls Club, a corporate citizen of Georgia, provides operating policies, procedures, rules, guidelines, and instructions regarding how Decatur Boys & Girls Club is to operate. Decatur [*3] Boys & Girls Club is required to follow these operating policies, procedures, rules, guidelines, and instructions.

On July 17, 2015, T.K. was taken from the premises of Decatur Boys & Girls Club in Decatur, Illinois, to property in Clinton, Illinois, owned by Defendant Paulin, an Illinois citizen. Neither Decatur Boys & Girls Club nor America Boys & Girls Club had permission to transport T.K. from Decatur to Defendant Paulin’s property in Clinton. Defendants,1 again without permission, put T.K. on a farm trailer owned by Defendant Paulin and located on Defendant Paulin’s property. The farm trailer was not designed or intended to transport people, and the trailer lacked guardrails, seats, seatbelts, and other equipment that might prevent people from falling off it. Defendant Paulin pulled the trailer, with T.K. and 15 to 20 additional children riding on it, onto a public highway with a tractor Defendant Paulin owned. The trailer was not being used in connection with a parade or a farm-related activity.

1 The use of “Defendants” in this Opinion will refer collectively to Decatur Boys & Girls Club, America Boys & Girls Club, and Mary K. Paulin.

While riding on the trailer, T.K. fell or jumped off the trailer or was pushed off. As a result, T.K. sustained injuries to his head, face, eyes, chest, neck, back, arms, lungs, hands, legs, [*4] and feet. T.K. underwent medical treatment for his injuries and will have to undergo additional treatment in the future. T.K’s father, Timothy Killings, a citizen of California, has incurred expenses related to his son’s medical care and will incur additional expenses in the future for his son’s future medical care.

On March 3, 2016, Plaintiffs filed their Complaint (d/e 1) against Defendants. Plaintiffs subsequently filed their First Amended Complaint (d/e 26) on May 23, 2016, and their Second Amended Complaint (d/e 31) on June 17, 2016. The Second Amended Complaint contains five counts. Counts 1 through 3 allege claims against Decatur Boys & Girls Club and America Boys & Girls Club for, respectively, negligence, negligence based on the doctrine of res ipsa loquitur, and willful and wanton misconduct. Counts 4 and 5 allege negligence and willful and wanton misconduct claims, respectively, against Defendant Paulin.

On June 27, 2016, Decatur Boys & Girls Club and America Boys & Girls Club filed their Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count I of the Second Amended Complaint, asking the Court to dismiss Counts 1 through 3 for failing to [*5] state cognizable claims or, in the alternative, to strike certain paragraphs of the Second Amended Complaint. On June 30, 2017, Defendant Paulin filed her Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count IV of the Second Amended Complaint, asking the Court to dismiss Counts 4 and 5 for failing to state cognizable claims or, in the alternative, to strike certain paragraphs of the Second Amended Complaint.

II. JURISDICTION

This Court has original jurisdiction over Plaintiffs’ claims because no Plaintiff is a citizen of the same state as any Defendant and Plaintiffs are seeking damages in excess of $75,000. See 28 U.S.C. § 1332(a)(1); McMillian v. Sheraton Chi. Hotel & Towers, 567 F.3d 839, 844 (7th Cir. 2009) (“When the jurisdictional threshold is uncontested, we generally will accept the plaintiff’s good faith allegation of the amount in controversy unless it appear[s] to a legal certainty that the claim is really for less than the jurisdictional amount.”) (internal quotation marks omitted).

III. LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). Plausibility means alleging factual content that allows a court to reasonably infer [*6] that the defendant is liable for the alleged misconduct. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A plaintiff’s complaint must suggest a right to relief, “raising that possibility above a speculative level.” Kubiak v. City of Chicago, 810 F.3d 476, 480 (7th Cir. 2016). “The required level of factual specificity rises with the complexity of the claim.” McCauley v. City of Chicago, 671 F.3d 611, 616-17 (7th Cir. 2011).

When faced with a Rule 12(b)(6) motion to dismiss, the Court “accept[s] as true all of the well-pleaded facts in the complaint and draw[s] all reasonable inferences in favor of the plaintiff.” Roberts v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 2016). “[L]egal conclusions and conclusory allegations merely reciting the elements of the claim are not entitled to this presumption of truth.” McCauley, 671 F.3d at 616. Further, the Court is “not obliged to ignore any facts set forth in the complaint that undermine the plaintiff’s claim.” R.J.R. Servs., Inc. v. Aetna Cas. & Sur. Co., 895 F.2d 279, 281 (7th Cir. 1989). The Court may “strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. Pro. 12(f).

IV. ANALYSIS

A. Count I and Count IV Sufficiently Plead Negligence and Medical Expense Claims Against All Defendants.

1. T.K. has pleaded cognizable negligence claims against all Defendants.

In a case where federal jurisdiction is based on diversity of citizenship under 28 U.S.C. § 1332, “[s]tate substantive law applies, but federal procedural rules govern.” Doermer v. Callen, 847 F.3d 522, 529 (7th Cir. 2017). “To state a claim for negligence under Illinois law, a plaintiff must plead [*7] that the defendant owed plaintiff a duty, it breached that duty, and the breach proximately caused plaintiff’s injury.” Allstate Indem. Co. v. ADT LLC, 110 F. Supp. 3d 856, 862-63 (N.D. Ill. 2015) (citing Simpkins v. CSX Transp., Inc., 2012 IL 110662, 965 N.E.2d 1092, 1097, 358 Ill. Dec. 613 (Ill. 2012). In Illinois, “every person owes to all other persons a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act.” Jane Doe-3 v. McLean Cnty. Unit Dist. No. 5 Bd. of Dirs., 2012 IL 112479, 973 N.E.2d 880, 890, 362 Ill. Dec. 484 (Ill. 2012). Whether this duty arises in a particular context depends on “the reasonable foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on defendants.” Id. A child’s caretaker has a duty to protect the child from harm. Ryan v. Yarbrough, 355 Ill. App. 3d 342, 823 N.E.2d 259, 262, 291 Ill. Dec. 249 (Ill. App. Ct. 2005). Whether a duty exists is a question of law to be decided by the Court. Simpkins, 965 N.E.2d at 1096.

In support of his negligence claims against America Boys & Girls Club and Decatur Boys & Girls Club, T.K.2 alleges that he was a member of Decatur Boys & Girls Club and was entrusted to the care of both organizations on July 17, 2015. Sec. Am. Complaint, ¶¶ 15-16. America Boys & Girls Club and Decatur Boys & Girls Club agreed to accept the “care, custody, and control” of T.K. for the purpose of providing child care. Id. ¶ 16. T.K. also alleges [*8] that on July 17, 2015, the relationship between him and America Boys & Girls Club and Decatur Boys & Girls Club imposed on the two organizations a duty of care to adequately supervise him and protect him from harm, any unreasonable risk of harm, dangerous instrumentalities, and dangerous conditions. Id. ¶¶ 42-43.

2 Plaintiffs do not separate T.K’s claims from Mr. Killings’ claims in the Second Amended Complaint. To avoid confusion, the Court will address the allegations of the Second Amended Complaint as those of T.K. when analyzing T.K’s claims and as those of Mr. Killings when analyzing Mr. Killings’ claims.

Further, according to T.K., America Boys & Girls Club and Decatur Boys & Girls Club breached the duty of care they owed him in several ways, including by (1) negligently supervising him, (2) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him, (3) failing to warn or failing to adequately warn him of the potential for injury before putting him on the trailer, (4) failing to properly supervise the minors they placed on the trailer, and (5) failing to provide enough staff members to monitor the children they placed on the trailer. Id. ¶ 45. With respect to America Boys & Girls Club, T.K. further alleges that it failed to properly train Decatur Boys & Girls Club on the operating policies, procedures, rules, guidelines, and instructions of America Boys & Girls Club and [*9] that it failed to supervise Decatur Boys & Girls Club to ensure that the operating policies, procedures, rules, guidelines, and instructions were followed. Id. ¶¶ 46-47. In addition, T.K. claims that the actions of America Boys & Girls Club and Decatur Boys & Girls Club proximately caused his injuries. Id. ¶¶ 33-39, 49.

In support of his negligence claim against Defendant Paulin, T.K. alleges that on July 17, 2015, Defendant Paulin put him on the farm trailer even though Defendant Paulin did not have the requisite permission to give him a ride on the trailer. Sec. Am. Complaint, ¶¶ 21, 23. Defendant Paulin towed the trailer, while T.K. and 15 to 20 additional children were on board, with a tractor onto a public highway. Id. ¶¶ 28-29. According to T.K., Defendant Paulin owed him a duty of care to protect him from any unreasonable risk of harm and breached that duty by (1) allowing and causing him to be placed on a farm trailer that was not designed for transporting children and was therefore dangerous and not reasonably safe for him; (2) failing to warn him of the potential for injury before putting him on the trailer and pulling the trailer onto a public highway; (3) failing to warn [*10] him that the trailer was dangerous and not reasonably safe given that the trailer had no railings, barriers, walls, or seats; and (4) creating a dangerous condition by placing him on the trailer and pulling it onto a public highway. Id. ¶¶ 72-73. In addition, T.K. alleges that the actions of Defendant Paulin proximately caused his injuries. Id. ¶¶ 33-39, 75.

Based on these allegations, T.K. has sufficiently pleaded negligence claims against Decatur Boys & Girls Club, America Boys & Girls Club, and Defendant Paulin. The allegations in Count I and Count IV of the Second Amended Complaint give Defendants notice of the basis for T.K.’s negligence claims against them and are sufficient to establish that T.K. has a plausible, as opposed to speculative, right to relief against Defendants. This is all that is required of a plaintiff under the federal notice pleading regime. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 547.

Defendants do not seem to dispute such a finding. Indeed, their arguments for the dismissal of Count I and Count IV focus on the allegations in the Second Amended Complaint relating to an alleged violation of 625 Ill. Comp. Stat. 5/11-1408, a provision of the Illinois Vehicle Code, and claims that their alleged statutory violations constitute [*11] negligence per se. See Mot. to Dismiss (d/e 32), at 1-2; Memorandum of Law (d/e 21), at 4-6; Mot. to Dismiss (d/e 33), at 1-2; Memorandum of Law (d/e 34), at 1-2. Defendants are correct that Illinois does not recognize statutory violations as negligence per se. See Kalata v. Anheuser-Busch Companies, Inc., 144 Ill. 2d 425, 581 N.E.2d 656, 661, 163 Ill. Dec. 502 (Ill. 1991) (“A violation of a statute or ordinance designed to protect human life or property is prima facie evidence of negligence. . . . The violation does not constitute negligence per se, however, and therefore the defendant may prevail by showing that he acted reasonably under the circumstances.”). But the inclusion of allegations regarding violations of 625 Ill. Comp. Stat. 5/11-1408 and negligence per se do not require the dismissal of Count I or Count IV. As the Court has explained above, T.K. has sufficiently pleaded negligence claims against Defendants without the allegations relating to statutory violations. Cf. Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992) (“[T]he complaint need not identify a legal theory, and specifying an incorrect theory is not fatal.”).

2. Timothy Killings has pleaded cognizable medical expense claims against all Defendants.

Just because T.K. has cognizable negligence claims against Defendants does not mean that Timothy Killings, T.K.’s father, also has such claims. To state a [*12] negligence cause of action, Mr. Killings must plead enough facts to make it plausible that he was harmed as a proximate result of Defendants’ breach of a duty they owed to him. Allstate, 110 F. Supp. 3d at 862-63. Mr. Killings has failed to meet his burden. The fact that Defendants were responsible for T.K.’s well-being on July 17, 2015, does not mean that Defendants had any duty to Mr. Killings. See Bruntjen v. Bethalto Pizza, LLC, 2014 IL App (5th) 120245, 385 Ill. Dec. 215, 18 N.E.3d 215, 231 (Ill. App. Ct. 2014) (“The criterion in a duty analysis is whether a plaintiff and a defendant stood in such a relationship to each other that the law imposed an obligation upon the defendant to act for the protection of the plaintiff.”). It was T.K., not Mr. Killings, who was placed on an unsafe farm trailer and pulled onto a public road. Defendants therefore had a duty to exercise ordinary care to prevent injury to T.K., not Mr. Killings. Further, Mr. Killings does not claim that he was physically injured as a result of Defendants’ negligence; his only claimed injury is the money he has spent and the money he will spend in the future for T.K.’s past and future medical treatment. See Sec. Am. Complaint, ¶¶ 38-39. In short, Mr. Killings has not met the pleading requirements for a negligence claim against any Defendant.

But just because Mr. [*13] Killings has not pleaded cognizable negligence claims against Defendants does not mean that he has pleaded no cognizable claims against them. In Illinois, parents have a cause of action against a tortfeasor who injures their child and causes them to incur medical expenses. Pirrello v. Maryville Acad., Inc., 2014 IL App (1st) 133964, 386 Ill. Dec. 108, 19 N.E.3d 1261, 1264 (Ill. App. Ct. 2014). The claim is not one for damages stemming from the child’s physical injury, but one founded on the parents’ liability for the minor’s medical expenses under the Illinois Family Expense Act. Id.; see also 750 Ill. Comp. Stat. 65/15(a)(1) (obligating parents to pay for the “expenses of the family”). T.K. has pleaded cognizable negligence claims against Defendants. Mr. Killings alleges that he has been saddled with bills stemming from T.K.’s medical care, some of which he has paid, and that he will incur additional medical bills in the future as a result of the injuries T.K. suffered on account of Defendants’ negligence. Sec. Am. Complaint, ¶¶ 38-39. Mr. Killings is the father of T.K., a minor, and is required by law to pay for T.K.’s medical expenses, Mr. Killings has adequately pleaded claims against Defendants for the recovery of the amounts paid or to be paid for T.K.’s past and future medical expenses stemming from Defendants’ negligence.

One [*14] final point merits a brief discussion. In the Second Amended Complaint, Mr. Killings alleges that he has suffered, as a result of T.K.’s injuries, “loss of aid, comfort, society, companionship, pleasure, and the family relationship.” Sec. Am. Complaint, ¶ 40. However, in Illinois, a parent may not “recover for loss of the society and companionship of a child who is nonfatally injured.” Vitro v. Mihelcic, 209 Ill. 2d 76, 806 N.E.2d 632, 633, 282 Ill. Dec. 335 (Ill. 2004). Therefore, Mr. Killings has no valid claim for loss of society and companionship in this case.

3. The Court strikes paragraph 27 from Plaintiffs’ Second Amended Complaint.

As an alternative to the dismissal of Count I of the Second Amended Complaint, Defendants Decatur Boys & Girls Club and America Boys & Girls Club ask the Court to strike paragraphs 50 through 55 of the Complaint. Mot. to Dismiss (d/e 32), at 2. Similarly, Defendant Paulin asks the Court, as an alternative to the dismissal of Count IV, to strike paragraphs 76 through 81 of the Second Amended Complaint. Mot. to Dismiss (d/e 33), at 1-2. According to Defendants, the Court should strike these paragraphs because they are ultimately used to claim that Defendants’ alleged statutory violations constitute negligence per se.

Additionally, Defendants [*15] Decatur Boys & Girls Club and America Boys & Girls Club request that the Court strike paragraph 27 from the Second Amended Complaint for being duplicative of paragraph 25 and strike paragraphs 42, 43, 44, 48, 68, 69, and 70 because those paragraphs are legal conclusions. Mot. to Dismiss (d/e 32), at 4. But even assuming that the aforementioned paragraphs are legal conclusions, as opposed to factual allegations, that is no reason to strike them from the Second Amended Complaint. Although Plaintiffs are required to plead facts that indicate they have a plausible, as opposed to a speculative, right to relief, see Iqbal, 556 U.S. at 678, they are not prohibited from also pleading legal conclusions that might help to provide Defendants with notice of the claims brought against them or provide context for the factual allegations. See State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001) (citing Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989)) (noting that “legal conclusions are an integral part of the federal notice pleading regime” and that Rule 8(b) of the Federal Rules of Civil Procedure requires parties to respond to all allegations contained within a pleading, including legal conclusions). Therefore, the Court strikes only paragraph 27 of the Second Amended Complaint, as it is duplicative of paragraph 25.

B. The Allegations of Plaintiffs’ Second Amended [*16] Complaint Are Insufficient to Render the Doctrine of Res Ipsa Loquitur Applicable Against Decatur Boys & Girls Club and America Boys & Girls Club.

Res ipsa loquitur is a rule of evidence applicable to a negligence claim, not a distinct theory of recovery. Rice v. Burnley, 230 Ill. App. 3d 987, 596 N.E.2d 105, 108, 172 Ill. Dec. 826 (Ill. App. Ct. 1992). Res ipsa loquitur allows “proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant.” Metz v. Cent. Ill. Elec. & Gas Co., 32 Ill. 2d 446, 207 N.E.2d 305, 307 (Ill. 1965). The doctrine “is meant to bridge an evidentiary gap when an injury could not have happened but for the defendant’s negligence.” Buechel v. United States, 746 F.3d 753, 765 (7th Cir. 2014). Accordingly, res ipsa loquitur applies only when the facts “admit of the single inference that the accident would not have happened unless the defendant had been negligent.” Britton v. Univ. of Chi. Hosps., 382 Ill. App. 3d 1009, 889 N.E.2d 706, 709, 321 Ill. Dec. 441 (Ill. App. Ct. 2008). Whether the doctrine of res ipsa loquitur applies is a question of law to be determined by the Court. Imig v. Beck, 115 Ill. 2d 18, 503 N.E.2d 324, 329, 104 Ill. Dec. 767 (Ill. 1986).

Under Illinois law, a plaintiff bringing a negligence claim based on the doctrine of res ipsa loquitur must plead that he was injured “in an occurrence that ordinarily does not happen in the absence of negligence” and that it was caused “by an agency or instrumentality within the defendant’s exclusive control.” Avalos-Landeros v. United States, 50 F. Supp. 3d 921, 927 (N.D. Ill. 2014) (citing Heastie v. Roberts, 226 Ill. 2d 515, 877 N.E.2d 1064, 1076, 315 Ill. Dec. 735 (Ill. 2007)). Although, in the past, [*17] a plaintiff had to allege that the “the injury occurred under circumstances indicating that it was not due to any voluntary act or neglect on the part of the plaintiff,” this requirement was removed due to the adoption of comparative fault principles in Illinois. Heastie, 877 N.E.2d at 1076. With respect to the requirement of “exclusive control,” a defendant’s control over the instrumentality “at the time of the alleged negligence is not defeated by lack of control at the time of the injury.” Darrough v. Glendale Heights Cmty. Hosp., 234 Ill. App. 3d 1055, 600 N.E.2d 1248, 1252-53, 175 Ill. Dec. 790 (Ill. App. Ct. 1992). Indeed, the doctrine of res ipsa loquitur can be appropriate if the instrument that caused the injury was in the defendant’s exclusive control “at a time prior to the injury and there is no change in conditions or intervening act that could reasonably have caused the event resulting in the injury.” Id. at 1253.

T.K. alleges that “a minor child under the care and supervision of a registered, licensed professional child care facility does not ordinarily sustain serious injuries when properly supervised in the absence of negligence.” Sec. Am. Complaint, ¶ 60. Further, T.K. claims that at the time he sustained his injuries, the farm trailer that injured him was under the exclusive control of Decatur Boys & Girls Club and America Boys [*18] & Girls Club. Id. ¶ 61. These allegations are not sufficient to render the doctrine of res ipsa loquitur applicable here. See Twombly, 550 U.S. at 545 (noting that “a formulaic recitation of a cause of action’s elements” will not withstand a Rule 12(b)(6) motion to dismiss). And although the Second Amended Complaint contains numerous factual allegations regarding the incident in which T.K. was injured, those allegations do not indicate a plausible right to relief for T.K. under the doctrine of res ipsa loquitur.

Because the facts pleaded in Plaintiffs’ Second Amended Complaint provide no support for the second prong in the res ipsa loquitur analysis–whether an injury was caused by an object within the defendant’s exclusive control–the Court’s res ipsa loquitur analysis will begin and end with that prong. Even assuming that the incident in which T.K. was injured was one that does not ordinarily occur in the absence of negligence, T.K.’s account of the circumstances surrounding the accident indicate that it was Defendant Paulin, not Decatur Boys & Girls Club or America Boys & Girls Club, who had exclusive control of the farm trailer. According to the Second Amended Complaint, the farm trailer that injured T.K. was owned [*19] by Defendant Paulin and located on Defendant Paulin’s property. Defendant Paulin was the one who pulled the trailer onto a public road with T.K. and several other minor children on board. Defendant Paulin owned the tractor with which the trailer was pulled. Although T.K. claims that Decatur Boys & Girls Club and America Boys & Girls Club were responsible for placing him on the farm trailer, he makes the same allegation with respect to Defendant Paulin. See Sec. Am. Complaint, ¶¶ 22-23. In short, there is nothing in the Second Amended Complaint to support T.K.’s allegation that Decatur Boys & Girls Club and America Boys & Girls Club were in exclusive control of the farm trailer at any time.

Based on this analysis, the Court has determined that the factual allegations of the Second Amended Complaint are not sufficient to render the doctrine of res ipsa loquitur applicable. In doing so, the Court again notes that res ipsa loquitur is an evidentiary rule, not a distinct theory of recovery. If facts uncovered through the discovery process sufficiently support the application of res ipsa loquitur against any Defendant, the Court will allow T.K. to rely on the doctrine at the summary judgment [*20] stage and will allow the trier of fact to consider and apply the doctrine as to that Defendant.

C. Count III and Count V Sufficiently Plead Willful and Wanton Misconduct Claims Against the Defendants.

To state a claim under Illinois law for willful and wanton misconduct, a plaintiff must plead facts establishing the elements of a negligence claim–duty, breach, proximate causation, and harm–and “either a deliberate intention to harm or an utter indifference to or conscious disregard for the welfare of the plaintiff.” Kirwan v. Lincolnshire-Riverwoods Fire Protections Dist., 349 Ill. App. 3d 150, 811 N.E.2d 1259, 1263, 285 Ill. Dec. 380 (Ill. App. Ct. 2004) (quoting Adkins v. Sarah Bush Lincoln Health Ctr., 129 Ill. 2d 497, 544 N.E.2d 733, 743, 136 Ill. Dec. 47 (Ill. 1989)). As noted above, T.K. has sufficiently pleaded negligence causes of action against all Defendants. T.K. has incorporated the allegations comprising his negligence claims into his willful and wanton misconduct claims against Defendants. Therefore, to state claims for willful and wanton misconduct against Defendants, T.K. need only additionally allege either intentional or reckless willful and wanton misconduct committed by Defendants. Reckless willful and wanton misconduct is conduct committed with an utter indifference of or a conscious disregard for the safety of others. Kirwan, 811 N.E.2d at 1263. To meet this standard, the defendant “must be conscious of his conduct, [*21] and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury.” Id.

In the Second Amended Complaint, T.K. alleges that on July 17, 2015, Decatur Boys & Girls Club and America Boys & Girls Club placed him and 15 to 20 other minors on an unsafe farm trailer with no guardrails, sidewalls, barriers, or seats while providing inadequate supervision. Sec. Am. Complaint, ¶¶ 22, 65. T.K. further alleges that the trailer was not designed to transport people. Id. ¶ 24. T.K claims that Decatur Boys & Girls Club and America Boys & Girls Club failed to take necessary safety precautions and operated their summer camp recklessly or with gross negligence. Id. ¶¶ 64, 68. According to T.K., the actions and inaction of Decatur Boys & Girls Club and America Boys & Girls Club were “willful, wanton, grossly negligent, careless, [and] reckless” and “showed an utter indifference to or conscious disregard for the safety of [T.K.].” Id. ¶ 70.

T.K. also includes several allegations in Count III about what Decatur Boys & Girls Club and America Boys & Girls Club “knew or should have [*22] known.” Specifically, according to T.K., Decatur Boys & Girls Club and America Boys & Girls Club knew or should have known that the farm trailer was unreasonably dangerous, that additional supervision was required for the 15 to 20 children riding on the farm trailer, and that there was no way for the children to be properly seated on the farm trailer. Id. ¶¶ 66-68. Decatur Boys & Girls Club and America Boys & Girls Club also knew or should have known that placing children on the farm trailer and pulling it with a tractor without proper supervision posed a high probability of serious physical harm to T.K. Id. ¶ 69.

With respect to Defendant Paulin, T.K. alleges that Defendant Paulin placed T.K. on a farm trailer that was not designed or intended to transport people and had no guardrails, seats, or seat belts to prevent people from falling off it. Id. ¶¶ 23, 25-26. Further, T.K. claims that Defendant Paulin had no intention of making sure that T.K. was safe when she placed him on the farm trailer and pulled it onto a public road. Id. ¶ 83. T.K. also claims that Defendant Paulin failed to take necessary safety precautions. Id. ¶ 85. Defendant Paulin’s conduct, according to T.K., was “willful, [*23] wanton, grossly negligent, careless, [and] reckless” and showed a “conscious disregard for the safety of [T.K.].” Id. ¶ 87.

As with Decatur Boys & Girls Club and America Boys & Girls Club, T.K. includes allegations in the Second Amended Complaint regarding what Defendant Paulin “knew or should have known.” Specifically, T.K. alleges that Defendant Paulin knew or should have known that the farm trailer was unreasonably dangerous, that pulling children onto a public road while on the trailer was unreasonably dangerous, and that placing children on the farm trailer and pulling the trailer onto a public roadway without proper supervision posed a high probability of serious physical harm or death. Id. ¶¶ 83-84, 86.

T.K.’s allegations are sufficient to plead willful and wanton misconduct claims against Defendants. The Federal Rules of Civil Procedure require that a pleading include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Pro. 8(a)(2). A plaintiff need not plead enough facts to show that he is likely to prevail on his claim; rather, he is required only to include enough facts to raise his claim from speculative to plausible. See Iqbal, 556 U.S. at 678. The allegations set forth [*24] above are sufficient to make it plausible that Defendants committed willful and wanton misconduct when they put T.K. on an unsafe farm trailer not designed for transporting people, failed to take necessary safety precautions, and either failed to properly supervise T.K. or pulled the trailer, with T.K. on it, onto a public road. See Worthem v. Gillette Co., 774 F. Supp. 514, 517 (N.D. Ill. 1991) (holding that the plaintiff had sufficiently pleaded willful and wanton misconduct claims where she alleged that “willful and wanton acts or omissions [were] committed or omitted with conscious indifference to existing circumstances and conditions” and went on to “enumerate specific instances of willful and wanton conduct”).

Although T.K.’s “knew or should have known” allegations against Defendants may have been insufficient to meet his pleading burden with respect to willful and wanton misconduct claims, see id. (admitting that the court “might agree” with the defendant’s arguments that “knew or should have known” allegations are mere negligence allegations insufficient to merit punitive damages), T.K. does not rely solely on these allegations in his willful and wanton misconduct claims against Defendants. Indeed, as the Court has noted above, Count III [*25] and Count V of the Second Amended Complaint, which incorporate the allegations from the counts preceding them, contain specific factual allegations regarding the actions Defendants took. Further, the Court does not view T.K.’s “knew or should have known” allegations as completely irrelevant to a willful and wanton misconduct claim under Illinois law, which holds that willful and wanton misconduct can be found where there is a failure to discover a danger through carelessness when it could have been discovered through the exercise of ordinary care. Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 641 N.E.2d 402, 406, 204 Ill. Dec. 178 (Ill. 1994).

The fact that T.K. bases his willful and wanton claims on the same facts as his negligence claims is of no concern. Under Illinois law, “[t]he same acts by a defendant, if sufficiently egregious, can constitute both negligence and willful and wanton conduct.” Bastian v. TPI Corp., 663 F. Supp. 474, 476 (N.D. Ill. 1987) (citing Smith v. Seiber, 127 Ill. App. 3d 950, 469 N.E.2d 231, 235, 82 Ill. Dec. 697 (Ill. App. Ct. 1984). Therefore, “one can plead the same facts in two counts, one characterizing them as negligence and the other as willful and wanton conduct, if the same facts could support both theories.” Bastian, 663 F. Supp. at 476 (citing O’Brien v. Twp. High Sch. Dist. 214, 83 Ill. 2d 462, 415 N.E.2d 1015, 1018, 47 Ill. Dec. 702 (Ill. 1980).

V. CONCLUSION

For the foregoing reasons, Defendants Boys & Girls Club of America and Boys & Girls Club of Decatur, Inc.’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion [*26] to Strike Portions of Count I of the Second Amended Complaint (d/e 32) is GRANTED IN PART and DENIED IN PART. Count II of Plaintiffs’ Second Amended Complaint is DISMISSED WITHOUT PREJUDICE. Further, the Court STRIKES paragraph 27 of Plaintiffs’ Second Amended Complaint as duplicative. Defendant Mary K. Paulin’s Combined Rule 12(b)(6) Motion to Dismiss Complaint and Alternative Rule 12(f) Motion to Strike Portions of Count IV of the Second Amended Complaint (d/e 33) is DENIED. Pursuant to Rule 12(a)(4)(A) of the Federal Rules of Civil Procedure, Defendants have 14 days from the date they receive a copy of this Order to file an answer to Plaintiffs’ Second Amended Complaint.

ENTER: June 6, 2017.

/s/ Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE


State AED laws may create liability; make sure you understand what your state laws say. Florida, an AED law affecting high schools created liability for the HS.

A Florida statute requiring schools to acquire and train all employees on the use of AED’s, created liability when the AED was not used.

Limones, Sr., et al., v. School District of Lee County et al., 161 So. 3d 384; 2015 Fla. LEXIS 625; 40 Fla. L. Weekly S 182

State: Florida, Supreme Court of Florida

Plaintiff: Abel Limones, Sr., et al

Defendant: School District of Lee County et al.

Plaintiff Claims: Common Law negligence and breach of a duty required by statute, Florida Statute 1006.165

Defendant Defenses: No duty and Immune under 1006.165 and 768.1325

Holding: for the Plaintiff

Year: 2015

The deceased was a 15-year-old boy who played on a high school soccer team. While playing a high school soccer game he collapsed. His coach ran onto the field and started CPR and was assisted by two nurses who were sitting in the stands.

Allegedly, the coach asked several times for an AED (Automatic External Defibrillator). An AED was located in a storage are at the end of the field. However, no one ever retrieved the AED.

Ten minutes later, the fire department arrived and attempted to revive the student with their AED. That did not work. Twenty-six minutes later, an ambulance arrived and with the application of the ambulance AED and the application of drugs, EMS was able to restore the student’s heart rate.

The plaintiff’s expert witness testified that the 26 minutes without the use of the AED, not having a heartbeat, deprived the student of oxygen, which caused brain damage. The student was left in a persistent vegetative state.

The trial court granted the defendants motion for summary judgment. The plaintiff appealed and the Florida Appellate Court upheld the dismal by the trial court. The Florida Supreme Court then heard the appeal and issued this decision.

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

The Supreme Court of Florida first looked at basic negligence claims pursuant to Florida’s law. Florida’s law applies the same four steps to prove negligence as most other states.

We have long held that to succeed on a claim of negligence, a plaintiff must establish the four elements of duty, breach, proximate causation, and damages. Of these elements, only the existence of a duty is a legal question because duty is the standard to which the jury compares the conduct of the defendant.

A legal question is one that must be answered by the courts. So whether or not a duty existed, in proving negligence, is first reviewed by the trial judge. Factual questions are reviewed by the finder of fact, most commonly called the jury. Looking at the issue of duty, the court found under Florida Law, there were four sources of duty.

Florida law recognizes the following four sources of duty: (1) statutes or regulations; (2) common law interpretations of those statutes or regulations; (3) other sources in the common law; and (4) the general facts of the case.

Rarely do courts define how duties are created. Consequently, reviewing how a duty is created is interesting. The last way, general facts of the case, are how most duties are determined. The plaintiff argues there is a duty because of how others act or fail to act or based on the testimony from expert witnesses. Alternatively, an organization or trade association has published a list of the standards of care, which are then used to prove the duty failed.

The court then must examine if the minimum requirements for a duty have been met.

As in this case, when the source of the duty falls within the first three sources, the factual inquiry necessary to establish a duty is limited. The court must simply determine whether a statute, regulation, or the common law imposes a duty of care upon the defendant. The judicial determination of the existence of a duty is a minimal threshold that merely opens the courthouse doors.

In this case, the parties were relying on a statute; the Florida Statute that put AED’s in schools and required all school employees to be trained on their use, 768.1325. Once the court determines that a duty existed, then the jury must decide all other issues of the case.

Once a court has concluded that a duty exists, Florida law neither requires nor allows the court to further expand its consideration into how a reasonably prudent person would or should act under the circumstances as a matter of law. We have clearly stated that the remaining elements of negligence–breach, proximate causation, and damages–are to be resolved by the fact-finder.

The court then looked into the duty of schools with regard to students. A special relationship exists between a student (and their parents) and schools. A special relationship then takes the duty out from limited if any duty at all to a specific duty of care. Here that relationship creates a duty upon the school to act as a reasonable man would.

As a general principle, a party does not have a duty to take affirmative action to protect or aid another unless a special relationship exists which creates such a duty. When such a relationship exists, the law requires the party to act with reasonable care toward the person in need of protection or aid. As the Second District acknowledged below, Florida courts have recognized a special relationship between schools and their students based upon the fact that a school functions at least partially in the place of parents during the school day and school-sponsored activities.

The duty thus created or established requires a school to reasonably supervise students.

This special relationship requires a school to reasonably supervise its students during all activities that are subject to the control of the school, even if the activities occur beyond the boundaries of the school or involve adult students.

It should be noted, however, when referring to “school” in this manner; the courts are talking about public schools and students under the age of 18. Colleges have very different duties, especially outside of the classroom or off campus.

That supervision duty schools have, has five sub-elements or additional duties when dealing with student athletes.

Lower courts in Florida have recognized that the duty of supervision creates the following specific duties owed to student athletes: (1) schools must adequately instruct student athletes; (2) schools must provide proper equipment; (3) schools must reasonably match participants; (4) schools must adequately supervise athletic events; and (5) schools must take appropriate measures after a student is injured to prevent aggravation of the injury.

Here, several of the specific duties obviously could be applied to the case. Consequently, the court found the school owed a duty to the deceased.

Having determined the duty owed by the school to the deceased the court held that the school had a duty to the deceased that was breached. The use of an AED, required at the school by statute, was a reasonable duty owed to the deceased.

Therefore, we conclude that Respondent owed Abel a duty of supervision and to act with reasonable care under the circumstances; specifically, Respondent owed Abel a duty to take appropriate post-injury efforts to avoid or mitigate further aggravation of his injury. “Reasonable care under the circumstances” is a standard that may fluctuate with time, the student’s age and activity, the extent of the injury, the available responder(s), and other facts. Advancements with technology and equipment available today, such as a portable AED, to treat an injury were most probably unavailable twenty years ago, and may be obsolete twenty years from now.

The plaintiffs also argued there were additional duties owed based on the Florida School AED statute. However, the court declined to review this issue. Meaning, it is undecided and could go either way in the future.

The defendant then argued they were immune from suit based on the Florida AED Good Samaritan Act. The court then looked at the immunity statute set forth in the Florida School AED Statute. The Statute required schools to have AED’s and have to train all employees in the use of the AED. The court found that employees and volunteers could be covered under the Florida AED Good Samaritan Act. If they used the AED’s they would be immune from suit.

The court in reading the Florida AED Good Samaritan Act found two different groups of people were created by the act. However, only one was protected by the act and immune from suit. Those who use or attempt to use an AED are immune. Those that only acquire the AED, are not immune because they did not attempt to use the AED.

Users are clearly “immune from civil liability for any harm resulting from the use or attempted use” of an AED. § 768.1325(3), Fla. Stat. Additionally, acquirers are immune from “such liability,” meaning the “liability for any harm resulting from the use or attempted use” referenced in the prior sentence. Thus, acquirers are not immune due to the mere fact that they have purchased and made available an AED which has not been used; rather, they are entitled to immunity from the harm that may result only when an AED is actually used or attempted to be used.

That immunity only applied to the use of the AED. Here there was no use of the AED, so the statute did not provide any immunity.

It is undisputed that no actual or attempted use of an AED occurred in this case until emergency responders arrived. Therefore, we hold that Respondent is not entitled to immunity under section 768.1325 and such section has absolutely no application here.

The court summarized its analysis.

We hold that Respondent owed a common law duty to supervise Abel, and that once injured, Respondent owed a duty to take reasonable measures and come to his aid to prevent aggravation of his injury. It is a matter for the jury to determine under the evidence whether Respondent’s actions breached that duty and resulted in the damage that Abel suffered. We further hold Respondent is not entitled to immunity from suit under section 768.1325, Florida Statutes.

So Now What?

So in Florida, a statute that requires someone, such as a school to have AED’s then requires the school to use the AED’s and if they do not, they breach the common law duty of care to their students.

AED laws are going to become a carnival ride in attempting to understand and use them without creating liability or remaining immune from suit. You probably not only want to be on top of the law that is being passed in your state; you should probably go down and testify so the legislature in an attempt to save a life does not sink your business.

It is sad when a young man dies, especially, if he could have been saved. That issue is probably going to trial.

What do you think? Leave a comment.

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