Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989)

Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989)

William Todd Childress, By and Through his parents, Ira Childress and Joyce Childress, and Ira Childress and Joyce Childress, individually, Plaintiffs-Appellants, v. Madison County, Tennessee, The Madison County Board of Education, and the Young Men’s Christian Association, Jackson, Tennessee, a/k/a Y.M.C.A., Defendants-Appellees


Court of Appeals of Tennessee, Western Section

777 S.W.2d 1; 1989 Tenn. App. LEXIS 48

January 24, 1989, Filed

SUBSEQUENT HISTORY: Application for Permission to Appeal Denied August 7, 1989.

PRIOR HISTORY:  [**1]  From the Circuit Court of Madison County, Tennessee, MADISON LAW NO. 5, The Honorable Andrew T. Taylor, Judge


COUNSEL: David Hardee, Linda L. Moore, Jackson, Attorneys for Plaintiffs-Appellants.

J. Tim Edwards, Memphis, Glassman, Jeter & Edwards, Attorney for Defendants-Appellees.

JUDGES: Highers, J.  Nearn, Sp. J., concurs.  Tomlin, P.J., W.S., concurs separately.



[*2]  The plaintiffs, Ira Childress and Joyce Childress, brought this action individually and on behalf of their son, William Todd Childress, against Madison County and the Madison County Board of Education, alleging negligence which proximately caused personal injury to their son, a mentally handicapped student in Special Education at South Side High School. After a bench trial, the court found that the evidence did not preponderate in favor of the contentions of the plaintiffs. Plaintiffs are appealing from a judgment for the defendants.

At the time of the accident, William Todd Childress was a twenty-year old, nonverbal, severely retarded student. He traveled regularly with his class to the Y.M.C.A. to use recreational facilities, including a swimming pool. 1  [**2]  The trips were supervised by a teacher and an aide, both employees of Madison County, and while at the pool, by a lifeguard employed by the Y.M.C.A.

1 The Y.M.C.A. was originally a party defendant, but was dismissed before trial and is not involved in this appeal.

Some of the trips were to allow students to train for the Special Olympics. Childress’ event consisted of walking the width of the shallow end of the swimming pool and handing a floating ball to an attendant.

On April 11, 1984, near the end of one of these training excursions to the Y.M.C.A., Childress was found on the floor of the pool at the point where the pool slopes from the shallow to the deep end. He was retrieved by the lifeguard and, after resuscitation began to breathe. He expelled water, vomited, and coughed, but otherwise appeared normal. An ambulance was called and Childress was taken to the hospital and admitted. Childress sustained injuries and incurred medical expenses as a result of this incident.

[*3]  The teacher testified that there were three people who were responsible for observing the class — the teacher, the aide, and the lifeguard. The teacher testified that she was at the shallow end of the [**3]  pool, the aide was on the other side of the pool, and the lifeguard was in and out of the pool at various points while offering instruction to students.

On this occasion the teacher stated that she was working with Childress. She described the events leading to the accident as follows:

Q. And toward the end of that hour what specifically were you doing with the children?

A. Well, the last thing that I did before I got out of the pool was work with Todd going back and forth across the pool.

Q. He would be walking back and forth across the pool?

A. Yes.

Q. And when you ceased that activity, what did you do?

A. I told Todd to get out of the water and told all of the other children to get out of the water.

Q. Did Todd get out of the water?

A. I did not see Todd get out of the water. As the children were exiting the pool another student jumped in at the shallow end, who was a swimmer, to swim a lap and I walked along the edge of the pool as he swam to the deep end.

Q. Did you ever again see Todd after you told him to get out of the pool until he was found underwater?

A. No.

* * * *

Q. Do you know who was watching Todd?

A. No.

Q. Do you know if anybody was watching [**4]  Todd?

A. We all had joint responsibility for watching the students.

Q. Do you know if anyone was watching Todd as he was getting out of the pool?

A. I would have no way of knowing.

In light of the testimony, we are of the opinion that the evidence preponderates against a finding of no negligence.  [HN1] In non-jury matters the findings of fact of the trial court come to this court with a presumption of correctness and are reviewed de novo. Unless the evidence preponderates against the findings, we must affirm. T.R.A.P. 13(d). The trial court’s judgment in this case indicates that he found no negligence on the part of Madison County or the Madison County Board of Education. The proof shows, however, that the teacher and the aide were responsible for watching the students; that the teacher ordered students out of the pool, but did not actually see Childress exit; that she became involved in observing another student, and did not know whether Childress left the pool; and that she did not know whether anyone was watching Childress during the crucial period when he apparently went into water that was over his head, thereby sustaining the injuries and damages which gave rise to the complaint.  [**5]  It further appears that each of the attendants was involved in small group instruction and that no one actually scanned the pool in order to see whether the group as a whole had obeyed the instructions to leave the area. But for the fact that no one watched the pool without the distractions of other instruction, Childress would not have been injured.

Under these circumstances, we cannot say that plaintiffs have failed to make out a case by the greater weight or preponderance of the evidence.

The defendants have raised a further issue in this case, however, that the mother executed a release of all liability of these defendants. It is their contention that even if they were guilty of negligence the action is barred by the release of claims executed by the mother individually and on behalf of her son.

[HN2] It is well settled in this state that parties may contract that one shall not be liable for his negligence to another but that such other shall assume the risk incident to such negligence.  Moss v. Fortune, 207 Tenn. 426, 340 S.W.2d 902 (1960). This  [*4]  rule is subject to exception. A party cannot contract away his liability for willful or gross negligence.  [**6]  Memphis & Charleston Railroad Co. v. Jones, 39 Tenn. (2 Head) 517 (1859). Neither can a party contract away liability if the duty under which he acts is a public one.  Cincinnati, New Orleans & Texas Pacific Railway Co. v. Saulsbury, 115 Tenn. 402, 90 S.W. 624, 626 (1905); Carolina, Clinchfield & Ohio Railway Co. v. Unaka Springs Lumber Co., 130 Tenn. 354, 170 S.W. 591, 594 (1914); Hartford Fire Insurance Co. v. Chicago, Milwaukee & St. Paul Railway Co., 175 U.S. 91, 20 S. Ct. 33, 44 L. Ed. 84 (1899).

[HN3] The existence of a public duty which would disallow giving effect to an exculpatory provision is determined by looking at several factors. If the service provided is the type which may generally be subject to public regulation then the duty probably exists.  Smith v. Southern Bell, 364 S.W.2d at 958. Other factors include the degree to which the service is of practical necessity for some members of the public, whether the service is offered to any member of the public who seeks it or qualifies for it, whether one party has greater bargaining power than [**7]  members of the general public, whether in exercising that bargaining power, the party presents a standardized “adhesion” contract making no provision whereby protection against negligence may be obtained, or whether the person or property of one party is placed under the control of the other.  Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn. 1977) (adopting the rule of Tunkl v. Regents of University of California, 60 Cal.2d 92, 32 Cal. Rptr. 33, 383 P.2d 441 (1963)).  [HN4] Particularly offensive in Tennessee are exculpation contracts executed by persons in professional vocations.  Olson, 558 S.W.2d at 432.

[HN5] Persons and businesses which normally operate under a public duty are not bound by the exception and can execute valid exculpation contracts when the transaction in question is not under that public duty. Thus it has been held that a telephone company can execute such a contract as to its advertising services, Smith v. Southern Bell, 51 Tenn. App. 146, 364 S.W.2d 952, 957-958, citing Mitchell v. Southwestern Bell Telephone Co., 298 S.W.2d 520 (Mo. App. 1957), and a common carrier may contract  [**8]  against liability when executing a lease agreement, Cincinnati, N.O. & T.P.R.Co. v. Saulsbury, 90 S.W. at 626.

Analyzing the facts of this case under the foregoing rules, we find that the Special Olympics generally, and the services provided in this case specifically, are governed by the general rule and do not fall under the exception prohibiting exculpatory clauses. Although there are a number of circumstances which would otherwise bring the Special Olympics under the exceptions related to professional or public services, our analysis of all the cases cited reveals that the rule was intended to operate primarily in the marketplace. The Olson opinion in analyzing the public duty exception refers to “business,” “bargaining strength” in “economic settings,” “purchasers,” and payment of “additional fees to obtain protection against negligence” implying that there were fees in the first place. We are not here saying that the touchstone of the analysis is the existence or absence of business motivations, or pecuniary exchange. But when those considerations which are tied to economic factors are eliminated from the analysis, in this case by the absence [**9]  of any business motivations, the remaining factors are insufficient to bring this case under the exception. Having determined that the  [HN6] exculpatory clauses are generally valid as to the Special Olympics, we look now to the provisions of the clause used in this case.

The exculpatory language in this case is a part of a form document entitled “Tennessee Special Olympics Parental/Medical Release Form.” It is printed on an 8 1/2″ X 11″ sheet divided into three sections, the right half of the page being a medical release to be completed by a physician or registered nurse. The left half of the page is divided into two sections, the top being for completion by parents or teachers requiring statistical date such as age, clothing sizes, and addresses of the participant.  [*5]  The bottom section is entitled “Parent/Guardian Release.” As completed in the case at bar, the release is as follows:

Parent/Guardian Release


I hereby give permission for the entrant named above to participate in the Special Olympics program — a sports-training, recreation, and competitive athletic program for mentally retarded children and adults.


I represent and warrant to you that  [**10]  the entrant is physically and mentally able to participate in Special Olympics, and I submit herewith a subscribed medical certificate.

Consent to Treatment:

You are authorized on my behalf and at my account to take such measures and arrange for such medical and hospital treatment as you may deem advisable for the health and well-being of the entrant without the need for further consent or permission.

Release of Claim:

I, the undersigned, individually and on behalf of the above-named entrant, acknowledge that the entrant will be using facilities at his/her own risk. I, on my own behalf, hereby release, discharge and indemnify Special Olympics, its directors, officers, employees, physicians, agents, and all volunteer personnel from all liabilities for damage, injury or illness to the entrant or his/her property during his/her participation in or travel to or from any Special Olympics event. (Emphasis Supplied)

Permission to Publish:

Permission is hereby granted to use the name, likeness, voice and words of the entrant in television, radio, films, newspapers, magazines and other media, and in any form not heretofore described for the purposes and activities of Special Olympics [**11]  and in appealing for funds to support such activities.

Parent/Guardian/Adult Entrant

Mrs. Ira Childress (subscribed)


Mother (Handwritten)

Relationship to Entrant

12-18-86 (Handwritten)


The emphasized language is at issue. The trial judge was of the opinion that Mrs. Childress “had executed a document releasing these defendants from liabilities as a result of any injuries that might occur in connection with the Special Olympics program.” This conclusion is in part correct.

[HN7] Exculpatory clauses purporting to contract against liability for intentional conduct, recklessness or gross negligence are unenforceable. See Adams v. Roark, 686 S.W.2d 73 (Tenn. 1985) Memphis & Charleston Railroad Co., supra. We find that the defendants in this case have not exceeded the bounds of simple negligence, even in light of the higher standard of care under which they operate due to the students’ mental disability. See 65A C.J.S. Negligence § 141 (1966).

The parties in this case are the plaintiffs, Todd Childress, by his parents, and his mother, Joyce Childress, and his father, Ira Childress, individually; and the defendants, Madison [**12]  County, and the Madison County Board of Education. The defendants were at the time of the incident in question acting through the teacher and her aide as agents or volunteers of the Special Olympics. The incident occurred during a Special Olympics training session, which the evidence shows was a “Special Olympics event” within the meaning of that phrase as used in the release form. While the evidence did show that there had been trips to the Y.M.C.A. pool which were independent of Special Olympics training, it is clear that the objective of this particular trip was to train for the Special Olympics and during this trip the teachers acted within the purview of duties they assumed as agents and/or volunteers of Special Olympics. Therefore, any liability for any actions taken must be analyzed as the actions of agents or volunteers of the Special Olympics as governed by the release form.

[*6]  The plaintiffs assert on appeal that the evidence established that Mrs. Childress had signed a number of “permission slips” and that in executing the release form, Mrs. Childress thought that she was merely signing another permission slip. We find this assertion unsupportable by the evidence.  [**13]  The evidence shows that the permission slips which Mrs. Childress signed were mimeographed copies of a handwritten form. The release form was not mimeographed and was copied from a printed document not handwritten, not even typed. Besides the difference facially, the content of the release is very different from the content of the permission slips. Mrs. Childress signed the document, and cannot, under these circumstances assert she thought she was signing a permission slip and not a release. Even if that were a valid assertion, it would make no difference in the outcome of the case.  [HN8] Although notice of an exculpatory clause is a prerequisite to its validity, Dodge v. Nashville Chattanooga & St. Louis Railway Co., 142 Tenn. 20, 215 S.W. 274 (1919), a party’s failure to read does not constitute a lack of notice to that party, Dixon v. Manier, 545 S.W.2d 948, 949 (Tenn. App. 1976).

Of the plaintiffs, only Mrs. Childress, Todd’s mother signed the release form. The language, quoted above, is clear and unambiguous. Mrs. Childress acknowledged that Todd would be participating at his own risk. She further agreed to “release, discharge and  [**14]  indemnify Special Olympics, its . . . agents, and all volunteer personnel.” Therefore, the trial judge was correct in dismissing this case as to Mrs. Childress individually.

Mr. Childress did not himself sign the release form and there is no indication in the language of the form or in the manner in which Mrs. Childress signed that she did in fact, or was even authorized to, release or discharge the Special Olympics on Mr. Childress’ behalf. However, Mrs. Childress did clearly agree to indemnify the Special Olympics “from all liabilities for damage, injury or illness to the entrant or his/her property during his/her participation in or travel to or from any Special Olympics event.” Therefore, to the extent the defendants are liable to Mr. Childress, Mrs. Childress, as indemnitor, must compensate him.

Neither did the remaining plaintiff, Todd Childress, sign the release form himself. Had he done so, being an incompetent, incapable of understanding the nature of his action, the execution could not be given effect. See 44 C.J.S. Insane Persons § 49 (1945). But, according to the language of the release, Mrs. Childress, as his mother and natural parent, acknowledged on Todd’s behalf [**15]  that he would be participating at his own risk.

[HN9] The status of guardians of incompetent persons is similar to that of guardians of infants, especially in view of courts of equity. Id. The general rule is that a guardian may not waive the rights of an infant or an incompetent. 39 Am. Jur.2d, Guardian & Ward § 102 (1968); 42 Am. Jur.2d, Infants § 152 (1969). Specifically,  [HN10] the Supreme Court of Tennessee long ago stated that a guardian cannot settle an existing claim apart from court approval or statutory authority.  Miles v. Kaigler, 18 Tenn. (10 Yerg.) 10 (1836). Spitzer v. Knoxville Iron, Co., 133 Tenn. 217, 180 S.W. 163 (1915). Tune v. Louisville & Nashville Railroad Co., 223 F. Supp. 928 (MD Tenn. 1963). It has also been held that  [HN11] a guardian may not waive the statutory requirements for service of process on an infant or incompetent by accepting service of process on himself alone.  Winchester v. Winchester, 38 Tenn. (1 Head) 460 (1858).

The courts of other states have recognized this general rule in a number of circumstances including those cited above. See e.g.  Gibson v. Anderson, 265 Ala. 553, 92 So.2d 692, 695 (1956) [**16]  (legal guardian’s acts do not estop ward from asserting rights in property); Ortman v. Kane, 389 Ill. 613, 60 N.E.2d 93, 98 (1945) (guardian cannot waive tender requirements of land sale contract entered into by ward prior to incompetency); Stockman v. City of South Portland, 147 Me 376, 87 A.2d 679 (1952) (guardian cannot waive ward’s property tax exemption); Sharp v. State, 240 Miss. 629, 127 So.2d 865, 90 A.L.R.2d 284 (1961)  [*7]  (guardian cannot waive statutory requirements for service of process on ward); Jones v. Dressel, 623 P.2d 370 (Colo. 1981) (ratification by parent of contract executed by child does not bind child); Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982) (guardian cannot settle personal injury claim for ward without court approval); Natural Father v. United Methodist Children’s Home, 418 So.2d 807 (Miss. 1982) (infant not bound by evidentiary admissions of parent); Colfer v. Royal Globe Ins. Co., 214 N.J. Super. 374, 519 A.2d 893 (1986) (guardian [**17]  cannot settle personal injury claim for ward without court approval).

In Mississippi, the rule was expressed in broad terms by the Supreme Court in Khoury v. Saik, 203 Miss. 155, 33 So.2d 616, 618 (1948): “Minors can waive nothing. In the law they are helpless, so much so that their representatives can waive nothing for them.” See also Parker v. Smith, 150 Miss. 849, 117 So. 249, 250 (1928).

The Supreme Court of Connecticut has specifically held that  [HN12] an agreement, signed by one of the parents of a minor as a condition to his being allowed to attend a camp, waiving the minor’s claims against a camp for damages in the event of an injury was ineffective to waive the rights of the minor against the defendant camp. Fedor v. Mauwehu Council, Boy Scouts of America, Inc., 21 Conn. Sup. 38, 143 A.2d 466, 468 (1958). The Supreme Court of Maine reached the same conclusion in Doyle v. Bowdoin College, 403 A.2d 1206, 1208 n.3 (Me. 1979). In Doyle, the court held that if the agreement in question were a release, it would be ineffective because a parent cannot release the child’s [**18]  action.

We believe the rule stated above is in keeping with the protection which Tennessee has afforded to the rights of infants and minors in other situations. We, therefore, hold that Mrs. Childress could not execute a valid release or exculpatory clause as to the rights of her son against the Special Olympics or anyone else, and to the extent the parties to the release attempted and intended to do so, the release is void.

The indemnity provisions of the release are on a similar footing.  [HN13] Indemnification agreements executed by a parent or guardian in favor of tort feasors, actual or potential, committing torts against an infant or incompetent, are invalid as they place the interests of the child or incompetent against those of the parent or guardian. See Valdimer v. Mt. Vernon Hebrew Camps, Inc., 9 N.Y.2d 21, 210 N.Y.S.2d 520, 172 N.E.2d 283, 285 (1961). “Clearly, a parent who has placed himself in the position of indemnitor will be a dubious champion of his infant child’s rights.” Id. See also Ohio Casualty Insurance Co. v. Mallison, 223 Or 406, 354 P.2d 800, 802-803 (1960). We are aware that the indemnity [**19]  agreements in the two cases just cited were executed after the cause of action had arisen. This fact does not change the rule, and  [HN14] indemnity provisions executed by the parent prior to a cause of action in favor of a child cannot be given effect. Were the rule otherwise, it would circumvent the rule regarding exculpatory clauses and the policy of affording protection in the law to the rights of those who are unable effectively to protect those rights themselves.

We do not deny that there are good and logical reasons for giving effect to exculpatory and indemnification clauses executed by parents and guardians on behalf of infants and incompetents. Risk is inherent in many activities that make the lives of children richer. A world without risk would be an impoverished world indeed. As Helen Keller well said, “Security is mostly a superstition. It does not exist in nature, nor do the children of men as a whole experience it. Avoiding danger is no safer in the long run than outright exposure. Life is either a daring adventure or nothing.” Partnow, Quotable Woman, 173 (1977). Ultimately, this case is a determination of who must bear the burden of the risk of injury to infants and minors.

[**20]  It is not our intention, nor do we feel the result of this case will be, to put a chill on activities such as the Special Olympics.  [HN15] The law is clear that a guardian cannot on behalf of an infant or incompetent, exculpate or indemnify against liability those  [*8]  organizations which sponsor activities for children and the mentally disabled. If this rule of law is other than as it should be, we feel the remedy is with the Supreme Court or the legislature.

The judgment of the trial court is affirmed as to Joyce Childress individually, and her case is dismissed. As to Ira Childress individually, and William Todd, by and through his parents, Ira Childress and Joyce Childress, this case is reversed and remanded for such further proceedings as may be required. Costs on appeal are assessed against appellees.





I readily concur in the excellent opinion written by my colleague. In addition, I would hold that even if the law in this state was to the effect that Mrs.  [**21]  Childress could execute a valid release as to the rights of her son, the release, as executed, as I interpret it, attempts to release only the mother’s rights and not those of her son. For instance, the first sentence, acknowledging that young Childress was using the facilities at his own risk, begins with the language: “I, the undersigned, individually and on behalf of the above-named entrant . . . .” [emphasis added] However, the language purporting to release the Special Olympics and others reads as follows: “I, on my own behalf, hereby release, discharge and indemnify . . . .” [emphasis added] It is obvious that the language last used purports only to release the rights of the “undersigned,” i.e., Mrs. Childress, and not those of her handicapped son.


Oregon Supreme Court decision says protection afforded by the OR Recreational Use Statute only applies to landowner, not volunteers or others on the land.

Oregon just passed a new law to hopefully supersede the ruling in this decision. Only time will tell.

How this will affect Federal Lands I don’t know. Federal volunteer statutes and state volunteer statutes may provide some protection.

However, you are now liable for volunteer work you might have done in the past building trails or putting in bolts or other volunteer work to make recreation in the State of Oregon better.

Johnson v. Gibson, 358 Ore. 624; 369 P.3d 1151; 2016 Ore. LEXIS 129

State: Oregon, Supreme Court of Oregon

Plaintiff: Emily Johnson

Defendant: Scott Gibson and Robert Stillson

Plaintiff Claims: negligence and violation of the American with Disabilities Act

Defendant Defenses: Oregon Recreational Use Statute

Holding: for the Plaintiff

Year: 2015

This is a weird case with a scary outcome. The plaintiff was a blind jogger who stepped into a hole in a Portland public park. The defendants, Gibson and Stillson were employees of the city and had created the hole to fix a sprinkler head.

The plaintiff filed her complaint in Federal District court arguing a Federal claim, creating federal jurisdiction. The City of Portland, the employer of the two defendants filed a motion for substitution and a motion for summary judgment. The motion for substitution says as the employer, the city is the real defendant because the city is liable for the acts of its employees.

The federal court denied to substitute the city for the two defendants stating the city would not be liable based on the Oregon Constitution, and that would leave the plaintiff without a claim. The court did grant part of the cities’ motion for summary judgment saying the Americans with Disabilities Act claim was thrown out but not the negligence claim.

The plaintiff then filed a new complaint in federal court invoking diversity jurisdiction. Diversity jurisdiction says that the parties are from different states; therefore Federal Court is the proper court. The second complaint alleged the two defendants were negligent. The city filed another motion for substitution, which was denied.

The two defendants then filed a motion for summary judgment arguing they were immune from liability under the Oregon Public Use of Lands Act (commonly called a Recreational Use Statute.) The federal district court agreed with this defense and dismissed the claim.

The plaintiff appealed to the Ninth Circuit Court of Appeals. Because this was a state law question which no Oregon court had decided, the Ninth Circuit Court of Appeals then asked the Oregon Supreme Court for clarification.

This decision is the Oregon Supreme Court answer to the question presented by the Ninth Circuit court of Appeals. The questions answered by the Oregon Supreme Court with this decision were:

(1) whether individual employees responsible for repairing, maintaining, and operating improvements on City-owned recreational land made available to the public for recreational purposes are “owner[s]” of the land, as that term is defined in the Oregon Public Use of Lands Act, ORS 105.672 to 105.700,1 and therefore immune from liability for their negligence; and (2) if such employees are “owner[s]” under the Act, whether the Act, as applied to them, violates the remedy clause of Article I, section 10, of the Oregon Constitution.

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

The court first looked at the language of the Oregon Public Use of Lands Act and dissected the language to determine if employees of the land owner were protected under the act. The first word reviewed in the act was “Owner.” Owner is defined by the statute so possessor was then reviewed in relation to the land.

A possessor may or may not own the land, but may control the land.

A “possessor” is “one that possesses: one that occupies, holds, owns, or controls.” Webster’s Third New Int’l Dictionary 1770 (unabridged ed 2002). A “possessor” is also “one that holds property without title–called also naked possessor; contrasted with owner.” Id. (emphasis in original). “Possession” means “the act or condition of having in or taking into one’s control or holding at one’s disposal”; “actual physical control or occupancy of property by one who holds for himself and not as a servant of another without regard to his ownership and who has legal rights to assert interests in the property”; “something owned, occupied, or controlled.” “Occupy” means “to hold possession of”; “to reside in as an owner or tenant.” An “occupant” is “one who takes the first possession of something that has no owner”; “one who occupies a particular place or premises”; and “one who has the actual use or possession of something.”

In the same paragraph, the court tackled the definition of what it means to occupy the land. After reviewing the definitions, the court determined that an occupant or a possessor must have some control over the land.

Under those definitions, an “occupant,” or a “person in possession of the land” must have some control over the space, and, given the context in which those terms are used, it is likely that the control that the legislature intended is the ability to decide who may use the space or what use may be made of it.

This then evolved into a determination that occupier and possessors of land were similar to lessees and tenants. Control over the land meant more than able to do stuff to the land, but to open the land, close the land and/or prevent others from using the land. The court then referred back to the Oregon Public Use of Lands Act where the term’s occupier and possessor were used to determine that the act did not cover the individual defendants who were employees of the owner, occupier or possessor of the land.

Meaning since the employees/defendants could not open or close the land to others, were just working on the land, the protection of the Oregon Public Use of Lands Act was not available to them.

Using those definitions and that reasoning, the court then carved out an exception to the law, which was not specifically identified, so that the employees of the defendant would not be covered by the Oregon Public Use of Lands Act.

Immunities provided to a principal may, but do not always, extend to the principal’s agents. That is clear not only from the comment to the Restatement quoted above, but also from a line of Oregon cases to which plaintiff calls our attention. In those cases, this court considered whether the sovereign immunity of governmental landowners precluding their liability for defective conditions on their streets extends to agents responsible for the repair of those streets.

So the immunity provided immunity to the land owner, in this case the city of Portland, does not extend to agents or employees of the land owner. The court found the legislature did not extend the immunity provided the Oregon Public Use of Lands Act to agents or employees of the land owner.

Consequently, we conclude that when the Legislative Assembly enacted the Public Use of Lands Act, legislators would not necessarily have assumed that granting immunity to landowners would also grant immunity to their employees and agents.

The court then narrowed the effect of the statute even further limiting its protection to those who hold legal title to the land and those who stand instead of the landowners such as tenants. The court specifically identified employees and non-employee agents as NOT being protected by the statute.

In this case, in deciding whether to imply an extension of the immunity granted to “owner[s]” of land to their employees and agents, we first consider the statute’s text. Significantly, that text indicates that the legislature intended to extend the immunity of those who hold legal title to land to some others who stand in their stead–the owners of other lesser interests in land, including tenants and lessees, and those who qualify as “occupant[s]” or “person[s] in possession” of the land. The text does not, however, disclose a legislative intent to extend the immunity of owners to additional persons who stand in their stead, such as employees and non-employee agents.

The court further reinforced its finding that the immunity provided by the Oregon Public Use of Lands Act only applied to the landowner. The court held that those who do not have the ability to make decisions about the land or to relieve others from liability for the land are not protected by the act.

Thus, it appears that the legislature’s original intent was to relieve those who control the use of their land from responsibility to take affirmative steps to make their property safe for use by others; the legislature did not express an intent to benefit those who do not have the ability to make decisions about the use of land, or to relieve non-owners who commit negligent acts from responsibility for injuries caused by such acts.

As with other decisions similar to this, the Oregon Supreme Court when out of its way to legally deny the defendant any chance of relief in this case and all future cases similar to this. (See Oregon Supreme Court finds release signed at ski area is void as a violation of public policy to see the same court use the same technique to eliminate releases as a defense in the state of Oregon.)

The Oregon Public Use of Lands Act was amended in 1995 to include in the definition of landowner public landowners such as cities, counties, municipalities.  However, the court found that language did not change the intent of the legislature to limit the protection to landowners and those who stand in the place of the landowner.

The legislature amended the Act in 1995 to make it expressly applicable to public land-owners. Or Laws 1995, ch 456, § 1. However, neither that change nor other changes in the wording of the statute disclose an intent to change the purpose of the statute or to benefit additional classes of persons.

The court held the employees of the city were not protected by the Oregon Recreational Use Statute known as the Oregon Public Use of Lands Act prior to or after it was amended.

Individual employees responsible for repairing, maintaining, and operating improvements on City owned recreational land made available to the public for recreational purposes are not “owner[s]” of the land, as that term is defined in the Oregon Public Use of Lands Act. They are therefore not immune from liability for their negligence. We do not reach the second certified question concerning Article I, section 10, of the Oregon Constitution.

So Now What?

This is a long decision with a short ending. If you are not the landowner or the tenant, you will not be protected from lawsuits by the Oregon Public Use of Lands Act.

A short list of those types of people who are not protected would be all volunteers, commercial guides and outfitters, or contractors hired to work on the land. You are volunteering to guide a group of people down a river trip as a fund raiser and someone is hurt, the Oregon Public Use of Lands Act would not provide any protection for you.

There may be other statutes that protect certain types of people on the land such as the Federal Volunteer Protection Act and any Federal laws for federal land and the Oregon Volunteer Protection Act. However, the strongest law protecting those opening their land for recreation now only protects the landowner. Landowners have nothing to fear; their protection did not change. No protection is afforded the statute now other than the landowner.

Landowners are still going to open their land; they are protected, but no work will be done to make the land better for recreation.

The Worst Part: Stopping now won’t matter. What volunteer work you might have done in the past building trails, putting in bolts or other work on lands as a volunteer can create liability for you now.

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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Author: Outdoor Recreation Insurance, Risk Management and Law

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By Recreation Law      James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom,, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Volunteer, Recreational Use, Recreational Use Statute, Landowner Liability, Landowner Immunity.


Oregon Volunteer Immunity Act or Limitation on Liability of Volunteers; conditions.

Title 3  Remedies and Special Actions and Proceedings  
Chapter 30-  Actions and Suits in Particular Cases  
Volunteers Transporting Older Persons and Persons with Disabilities
ORS § 30.480  (2016)
30.480  Limitation on liability of volunteers; conditions.

(1) When a provider of volunteer transportation services who is qualified under subsection (3) of this section provides the services under the conditions described in subsection (4) of this section to a person with a disability or a person who is 55 years of age or older, the liability of the provider to the person for injury, death or loss arising out of the volunteer transportation services shall be limited as provided in this section. When volunteer transportation services are provided to five or fewer persons at one time, the liability of the provider of the volunteer transportation services shall not exceed the greater of the amount of coverage under the terms of the provider’s motor vehicle liability insurance policy, as described in ORS 806.080, or the amounts specified in ORS 806.070 for future responsibility payments for:

     (a) Bodily injury to or death of any one person to whom the transportation services are provided, in any one accident.

     (b) Bodily injury to or death of two or more persons to whom the transportation services are provided, in any one accident.

     (c) Injury to or destruction of the property of one or more persons to whom the transportation services are provided, in any one accident.

(2) Notwithstanding the amount specified in subsection (1)(b) of this section by reference to ORS 806.070, if a qualified provider of transportation services provides the services to more than five persons, but not more than 16, at one time who have disabilities or who are 55 years of age or older, under the conditions described in subsection (4) of this section, the liability under subsection (1)(b) of this section shall not exceed the greater of the amount of coverage under the terms of the provider’s motor vehicle liability insurance policy or $ 300,000. The limitations on liability provided by ORS 30.475, 30.480 and 30.485 do not apply when volunteer transportation services are provided to 17 or more persons at one time who have disabilities or who are 55 years of age or older.

(3) The following persons qualify for the limitation on liability under subsections (1) and (2) of this section:

     (a) The person who provides or sponsors transportation services.

     (b) The owner of the vehicle in which transportation services are provided.

     (c) The person who operates the vehicle in which transportation services are provided.

(4) The limitation on liability under subsections (1) and (2) of this section applies to a person qualified under subsection (3) of this section only under the following conditions:

     (a) If the person is an individual, the individual must hold a valid Oregon driver’s license.

     (b) The person must provide the transportation services on a nonprofit and voluntary basis. However, this paragraph does not prohibit a sponsor of transportation services from reimbursing an operator of a private motor vehicle providing the services for actual expenses incurred by the operator. If an operator is paid, that operator is qualified only if operating as an emergency operator.

     (c) The person providing the transportation services must not receive from the persons using the services any substantial benefit in a material or business sense that is a substantial motivating factor for the transportation. A contribution or donation to the provider of the transportation services other than the operator of the motor vehicle or any mere gratuity or social amenity shall not be a substantial benefit under this paragraph.

     (d) Except as provided in paragraph (c) of this subsection, the transportation services must be provided without charge to the person using the services.

(5) The amounts received by a person with a disability or a person 55 years of age or older under the personal injury protection provisions of the insurance coverage of a person who qualifies for the limitation on liability under this section shall not reduce the amount that the person may recover under subsection (1) or (2) of this section.

(6) The liability of two or more persons whose liability is limited under this section, on claims arising out of a single accident, shall not exceed in the aggregate the amounts limited by subsection (1) or (2) of this section.

(7) This section does not apply in the case of an accident or injury if the accident or injury was intentional on the part of any person who provided the transportation services or if the accident or injury was caused by the person’s gross negligence or intoxication. For purposes of this subsection, gross negligence is negligence which is materially greater than the mere absence of reasonable care under the circumstances, and which is characterized by conscious indifference to or reckless disregard of the rights of others.

(8) For purposes of this section, a person has a disability if the person has a physical or mental disability that for the person constitutes or results in a functional limitation to one or more of the following activities: Self-care, ambulation, communication, transportation, education, socialization or employment.


10th annual Colorado Environmental Film Festival: Attend, Volunteer, Spread the Word!


Please join me!!!! You can buy tickets in advance at certain Whole Foods stores. Visit for locations and details.

Or volunteer:

We’re using VolunteerSpot (the leading online Sign-up and reminder tool) to organize our upcoming Sign-ups for the 10th Annual Colorado Environmental Film Festival February 18-20, 2016.

Here’s how it works in 3 easy steps:

1) Click this link to see our Sign-up on VolunteerSpot:

2) Review the options listed and choose the spot(s) you like.

3) Sign up! It’s Easy – you will NOT need to register an account or keep a password on VolunteerSpot.

Note: VolunteerSpot does not share your email address with anyone. If you prefer not to use your email address, please contact ceffchair and we can sign you up manually.


Mooring v. Virginia Wesleyan College, et al. 257 Va. 509; 514 S.E.2d 619; 1999 Va. LEXIS 69

Mooring v. Virginia Wesleyan College, et al. 257 Va. 509; 514 S.E.2d 619; 1999 Va. LEXIS 69

Antonio Mooring, a Minor Who Sues by His Mother and Next Friend, Patricia Mooring, et al. v. Virginia Wesleyan College, et al.

Record No. 981270


257 Va. 509; 514 S.E.2d 619; 1999 Va. LEXIS 69

April 16, 1999, Decided


COUNSEL: Philip J. Geib for appellants.

Allan S. Reynolds, Sr. (Reynolds, Smith & Winters, on brief), for appellees.





Antonio Mooring, a minor, suffered a traumatic amputation of his right thumb when John Braley closed a door while Mooring had his hand on the portal of the doorway. The incident occurred at the Boys and Girls Club of Hampton Roads (the Club). Mooring, through his next friend, sued Braley and his employer, Virginia Wesleyan College. The trial court dismissed Mooring’s motion for judgment finding that Braley was a volunteer at the Club and entitled to charitable immunity as a result of the Club’s status as a charity. Because we find that Braley was not engaged in the charity’s work at the time of the alleged negligence, we conclude that the trial court erred in dismissing Mooring’s motion for judgment.

[*511] Braley is a professor at Virginia Wesleyan College, teaching in a recreation and leisure studies program. The Club contacted Braley seeking volunteers to work in its programs. In response, Braley established a program with the Club in which [***2] students in Braley’s recreation programming class were required to spend six hours observing the children and volunteering at the Club. The students were required to return to the classroom, design recreation programs for the children they observed, and then implement those programs at the Club. Braley would go to the Club to observe the students conducting the programs and would “help the students out” when they needed it. The students were not graded directly on the basis of their work at the Club, but on the basis of a report they submitted to Braley describing their learning experience.

On the day Mooring was injured, one of Braley’s students was conducting a wellness and body-conditioning program for thirteen to eighteen-year-olds in the Club’s weight room. The student was giving a talk to the participants and Braley was observing her. At the student’s request, Braley went to the door to keep younger children not involved in the student’s program out of the room. While Braley was tending the door, Mooring was injured.

The trial court held an evidentiary hearing on the defendants’ joint motion to dismiss. The parties stipulated that the Club was a charity entitled to [***3] charitable immunity and that Mooring was a beneficiary of the charity. The trial court held that because Braley received no extra compensation from the Club or Virginia Wesleyan College for the services he rendered, and because Braley’s role at the Club was both supervising his students and “helping the Club perform its good work,” he was “a volunteer at the Club” and thus entitled to charitable immunity under Moore v. Warren, 250 Va. 421, 463 S.E.2d 459 (1995). 1

1 In dismissing the motion for judgment against both defendants, the trial court did not specifically address whether Virginia Wesleyan College was entitled to charitable immunity, and this issue is not before us on appeal.

[**621] In Moore, an American Red Cross volunteer was sued for negligence allegedly committed while transporting the injured party to a routine medical visit in a car owned by the Red Cross. Providing transportation for such medical visits was a service of the Red Cross. The driver contended that he was “‘cloaked with the immunity [***4] of the charity'” and that charitable immunity was not limited to the charity itself. Id. at 422, 463 S.E.2d at 459. In resolving this issue of first impression, we stated:

[*512] Like any organization, a charity performs its work only through the actions of its servants and agents. Without a charity’s agents and servants, such as the volunteer here, no service could be provided to beneficiaries. Denying these servants and agents the charity’s immunity for their acts effectively would deny the charity immunity for its acts.

Id. at 423, 463 S.E.2d at 460. Based on this rationale, we included the driver in the immunity of the charity and held that he was immune from liability to the charity’s beneficiaries for negligence while he was “engaged in the charity’s work.” Id. at 425, 463 S.E.2d at 461. Thus, Moore requires [HN1] an individual seeking the cloak of a charity’s immunity to establish that he was an agent or servant of the charity at the time of the alleged negligence and that the alleged negligence for which he seeks immunity occurred while he was actually doing the charity’s work.

Assuming, without deciding, that the “role” Braley had at the Club identified by [***5] the trial court satisfied the requirement that Braley be an agent or servant of the Club, Braley qualifies for protection under the Club’s charitable immunity only if the alleged negligence occurred while he was doing the charity’s work. Mooring contends that at the time of the injury Braley’s “presence did not directly benefit the Club,” and that Braley presented no evidence that “he was doing anything in particular for the Club at the time of the incident.” We agree.

While Braley testified that he “helped out” at the Club whenever he could, the record shows that at the time of his alleged negligence, Braley was at the Club to observe the activities of his student. He was not there to directly perform any of the Club’s work; rather he was carrying out his duties as a professor at Virginia Wesleyan College. He was observing his student and acting as “doorkeeper” at the student’s request to allow his student to properly conduct the wellness class. Under these facts, we conclude that Braley was not entitled to charitable immunity because he was not engaged in the work of the charity at the time of his alleged negligence.

Accordingly, we will reverse the judgment of the trial [***6] court and remand the case for further proceedings.

Reversed and remanded.

Byrne, JR., v. Fords-Clara Barton Boys Baseball League, Inc., 236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357

Byrne, JR., v. Fords-Clara Barton Boys Baseball League, Inc., 236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357

George C. Byrne, JR., A Minor by his Guardian Ad Litem, Francine Byrne, and Francine Byrne, Individually, Plaintiffs-Appellants, v. Fords-Clara Barton Boys Baseball League, Inc., Defendant, and Dennis Bonk, Defendant-Respondent

No. A-4172-88T2

Superior Court of New Jersey, Appellate Division

236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357

September 19, 1989, Argued

October 4, 1989, Decided

COUNSEL: James J. Dunn argued the cause for appellants (Levinson, Axelrod, Wheaton & Grayzel, attorneys; Richard J. Levinson, of counsel; Richard J. Levinson and James J. Dunn, on the brief).

Salvatore P. DiFazio argued the cause for respondent (Golden, Rothschild, Spagnola & DiFazio, attorneys).

JUDGES: Pressler, Long and Landau. The opinion of the court was delivered by Pressler, P.J.A.D.



[*186] [**1223] In evident response to the increasing cost of liability insurance and, in some instances the unavailability of liability insurance, for volunteer athletic coaches, managers and officials of nonprofit sports teams, 1 the Legislature, by L. 1986, c. 13, adopted N.J.S.A. 2A:62A-6, amended by L. 1988, c. 87, which affords those volunteers immunity from tort liability subject to the conditions and exceptions specified therein. This appeal from a summary judgment requires us to construe paragraph (c) of the Act, which conditions the availability of the immunity, to some degree at least, upon the volunteer’s participation in a safety and training program.

1 See, e.g., Legislative Summaries: Sports Law, 10 Seton Hall Legis. J. 332 (1987).

[***2] The facts relevant to the issue before us are not in dispute. In the spring of 1986, plaintiff George C. Byrne, Jr., then 11 years old, was enrolled in the Fords-Clara Barton Baseball League, Inc. The League, while not affiliated with Little League Baseball, Inc., is nevertheless similarly organized, structured and conducted, offering inter-team competitions for similarly aged youngsters. Defendant Dennis Bonk was the coach of the team to which the infant plaintiff was assigned. On May 13, 1986, the day after the effective date of N.J.S.A. 2A:62A-6, Bonk instructed plaintiff to “warm-up” the pitcher. [*187] Although plaintiff was wearing most of the catcher’s special protective gear, he was not, in violation of the League’s rules, wearing a catcher’s mask. During the warm-up, he was struck in the eye by a pitched ball, sustaining the injury which is the gravamen of this complaint. The complaint charged Bonk both with ordinary negligence and with “willful, wanton, reckless and gross” negligence.

Bonk’s motion for summary judgment dismissing the complaint as to him relied on N.J.S.A. 2A:53A-7 (charitable immunity) as well as on N.J.S.A. 2A:62A-6. The trial judge [***3] ruled that N.J.S.A. 2A:53A-7 was inapplicable to the claim against Bonk, as opposed to the League, because of its express exception of “agents or servants” from the immunity it affords. Bonk does not challenge that ruling on this appeal.

With respect to the applicability of N.J.S.A. 2A:62A-6, both plaintiff and this defendant relied on paragraph (c), which prior to its 1988 amendment provided in full as follows:

[HN1] Nothing in this section shall be deemed to grant immunity to any person causing damage by his willful, wanton, or grossly negligent act of commission or omission, nor to any coach, manager, or official who has not participated in a safety orientation and training program established by the league or team with which he is affiliated.

At least for purposes of the summary judgment motion, Bonk conceded that he had never participated in a safety orientation or training program, and the reason he had not was the League’s failure to have established one.

The issue then is whether paragraph (c), as originally adopted, required participation as a condition of immunity only if the league or team had established a safety and training program or if, to the contrary, the [***4] legislative intention was to mandate the establishment of a program as a quid pro quo, as it were, for the immunity, thus granting it only to those volunteers who had actually participated in such a program. [**1224] The trial court judge declined to read the statute as requiring the establishment of a safety and training program for volunteers, concluding therefore that a volunteer who had had no [*188] training in safety because there was no program for him to attend was fully entitled to the statutory immunity. Accordingly, it entered partial summary judgment dismissing the ordinary negligence claims against Bonk. 2 We granted plaintiff’s motion for leave to appeal and now reverse.

2 The trial judge did not rule on the wanton and gross negligence claims, concluding that questions of fact were involved, and defendant did not seek leave to cross-appeal from that determination. It is therefore not before us. See R. 2:5-6(b).

The direct legislative history is both sparse and inconclusive. The bill, A-2398, [***5] which was finally adopted as L. 1986, c. 13, had been first introduced and passed in the Assembly, whose version of paragraph (c) excepted only willful, wanton, or grossly negligent acts. The provision respecting safety and training programs was added by the Senate in its version of the bill, S-1678, which also added paragraphs (d), (e) and (f), all of which further limit and condition the immunity afforded by the Assembly bill. 3 The Statement accompanying the Senate version is not particularly helpful in construing its intention since, in explaining the addition to paragraph (c), it uses exactly the same verbiage as the statutory text.

3 Paragraph (d) makes the immunity inapplicable “to any person causing damage as the result of his negligent operation of a motor vehicle.” Paragraph (e) withholds the immunity from a person “permitting a sport competition or practice to be conducted without supervision.” Paragraph (f) makes clear the Act’s inapplicability to school coaches, managers, and officials.

[***6] We recognize that there is an ambiguity in the manner in which the operative clause of paragraph (c) was drawn. Normally that ambiguity would have required us to determine, without benefit of express legislative explication, whether the general legislative purpose to accord the immunity was meant to prevail over the safety concerns expressed by that paragraph or not. We need not, however, engage in that debate since the Legislature, by its 1988 amendment of paragraph (c), left no doubt that its original intent had been to condition the immunity [*189] upon the volunteer’s actual participation in an appropriate program. 4

4 The trial court apparently did not consider the effect of the 1988 amendment and its legislative history on this interpretation problem of the 1986 Act. Nor did either counsel bring the amendment to the attention of the trial court or this court.

By L. 1988, c. 87, the originally adopted single-section paragraph (c) was replaced by this two-section paragraph (c):

[HN2] (1) Nothing [***7] in this section shall be deemed to grant immunity to any person causing damage by his willful, wanton, or grossly negligent act of commission or omission, nor to any coach, manager, or official who has not participated in a safety orientation and training skills program which program shall include but not be limited to injury prevention and first aid procedures and general coaching concepts.

(2) A coach, manager, or official shall be deemed to have satisfied the requirements of this subsection if the safety orientation and skills training program attended by the person has met the minimum standards established by the Governor’s Council on Physical Fitness and Sports in consultation with the Bureau of Recreation within the Department of Community Affairs, in accordance with rules and regulations adopted pursuant to the “Administrative Procedure Act,” P.L.1968, c. 410 (C. 52:14B-1 et seq.).

The 1988 version does more than define, qualify, and standardize the prescribed safety program. In our view, the text of paragraph (c)(2), in its reference to a volunteer being “deemed to have satisfied the requirements of this subsection” (emphasis added), makes plain that actual program [***8] attendance is the unequivocal prerequisite for entitlement to the immunity. We are further persuaded that this was the legislative intention from the outset.

We base this conclusion first on public policy considerations. We do not believe that in initially prescribing participation in [**1225] a safety program, the Legislature meant to provide a disincentive to the establishment of such programs by charitably organized leagues and teams — and surely a disincentive is implicit in a scheme in which a coach or manager can obtain immunity against ordinary negligence by the simple expedient of the league’s failure to instruct him on matters of safety. Rather, we are convinced that the Legislature, responding to a perceived [*190] insurance crisis, concluded that all of the competing interests involved in the management of and participation in nonprofit athletic organizations could be most reasonably accommodated by encouraging the safety training of volunteer coaches and managers — not discouraging such training — and then protecting trained volunteers from ordinary negligence claims. Thus, the prior training was at the heart of the immunity concept. That being so, we are convinced [***9] that the Legislature never intended that the immunity would attach to an untrained volunteer simply because his league or team chose not to offer appropriate training.

Beyond that, we are also convinced that that construction of the original version of the statute has been expressly confirmed by the Senate Statement accompanying the 1988 amendment. That Statement starts with the observation that the amendment is intended to clarify the manner in which the volunteer coach, manager, or official can satisfy “the training program requirement of the ‘little league liability law,’ P.L.1986, c. 13. . . .” 5 Thus, the Legislature itself thereby described the program referred to in the original Act as mandated rather than optional. The conclusion is, therefore, ineluctable that [HN3] a volunteer coach who has not participated in a prescribed safety program, for whatever reason, is barred from reliance on the statutory immunity.

5 Although the Act by its terms is not limited to the Little League or even to youngsters participating in nonprofit athletic organizations, the Act has been referred to by the Little League nomenclature because it was that context in which it was initially adopted.

[***10] The partial summary judgment dismissing the ordinary negligence counts of the complaint against Dennis Bonk is reversed, and the matter is remanded to the trial court for further proceedings

Smith v. Kroesen, 9 F. Supp. 3d 439; 2014 U.S. Dist. LEXIS 39729

Smith v. Kroesen, 9 F. Supp. 3d 439; 2014 U.S. Dist. LEXIS 39729

Paul M., Plaintiff, v. John A. and Mark Cooley, et al., Defendants.

Civ. A. No. 10-5723 (NLH)(AMD)


9 F. Supp. 3d 439; 2014 U.S. Dist. LEXIS 39729

March 25, 2014, Decided

March 25, 2014, Filed

PRIOR HISTORY: Smith v. Kroesen, 2013 U.S. Dist. LEXIS 167619 (D.N.J., Nov. 26, 2013)


CLARK B. LEUTZE, MARGOLIS EDELSTEIN, MOUNT LAUREL, NJ, On behalf of defendant Mark Cooley.

JUDGES: Noel L. Hillman, U.S.D.J.

OPINION BY: Noel L. Hillman


[*440] HILLMAN, District Judge

Presently before the Court is the motion of defendant, Mark Cooley, for summary judgment in his favor on the claims of plaintiff, Paul Smith, that defendant is liable for injuries plaintiff sustained while playing in a rugby match. For the reasons expressed below, defendant’s motion will be granted.


On April 10, 2010, plaintiff Paul Smith, a member of the Jersey Shore Sharks rugby team, was playing in a rugby match against Old Gaelic Rugby Football Club, which was coached by defendant Mark Cooley. A rugby match is comprised of two, 40-minute halves, and it is typical to have 70 pile-ups of players and over 100 collisions with other players. During the first half of the match that day, plaintiff and a player from Old Gaelic got into a “ruck,” which is described to the Court as an on-the-field argument.1 The two players rolled on the ground, and plaintiff gave the Old Gaelic player a short jab to the ribs. Although the play had moved [**2] to the other end of the field, another Old Gaelic player, defendant John Kroesen, saw the ruck and, according to plaintiff, came from behind and intentionally kicked him in the face. Plaintiff sustained a left orbital fracture and a nasal fracture, for which plaintiff underwent surgery.

1 In rugby, a “ruck” also refers to efforts by opposing teams huddled over a dropped ball to kick it to a teammate to gain possession.

Plaintiff filed suit against Kroesen claiming that Kroesen’s conduct was intentional assault and battery, or at a minimum, grossly negligent. Plaintiff then filed an amended complaint,2 adding Cooley as a defendant, claiming that Cooley was grossly negligent in his coaching of the Old Gaelic team, and is responsible for plaintiff’s injuries caused by Kroesen.3 Kroesen did not answer plaintiff’s complaint, and the clerk has entered default against him. Plaintiff and Cooley went to arbitration to resolve plaintiff’s claims against Cooley, but following the arbitrator’s decision, plaintiff sought a trial de novo. Cooley has now filed for summary judgment on plaintiff’s claims against him. Plaintiff has opposed Cooley’s motion.

2 The Court granted plaintiff’s unopposed motion [**3] to file an amended complaint. (See Docket No. 8, Nov. 11, 2011.)

3 Plaintiff also added as defendants the Old Gaelic Rugby Football Club, the Eastern Pennsylvania Rugby Union (“EPRU”), and the Mid-Atlantic Rugby Football Union (“MARFU”), which oversees EPRU. On October 31, 2012, plaintiff dismissed by consent his claims against MARFU. Old Gaelic and EPRU were never served with the amended complaint, and plaintiff has abandoned his claims against them. (Pl. Attorney Cert. ¶ 9, Docket No. 38-1.)


A. Subject Matter Jurisdiction

This Court may exercise subject matter jurisdiction over the action pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000.4 The citizenship of the [*441] parties is as follows: plaintiff is a citizen of New Jersey; defendant Kroesen is a citizen of Pennsylvania; defendant Mark Cooley is a citizen of Pennsylvania; defendant Old Gaelic Rugby Football Club, Inc. is a corporation incorporated in the Commonwealth of Pennsylvania with its principal place of business at 712 Bower Road, Shermans Dale, Pennsylvania; defendant Eastern Pennsylvania Rugby Union, Inc. (“EPRU”) is a corporation [**4] incorporated in the Commonwealth of Pennsylvania with its principal place of business at 2107 Fidelity Building, Philadelphia, Pennsylvania 19103; and Mid-Atlantic Rugby Football Union, Inc. is a Delaware corporation with its principal place of business at 800 King Street, Wilmington, Delaware.

4 On November 26, 2013, the Court issued an Order to Show Cause directing plaintiff to provide a certification properly stating the citizenship of the parties before the case could proceed, as the citizenship of the parties was not properly pleaded in the original or amended complaints. (See Docket No. 36.) Plaintiff complied with the Court’s Order, and the citizenship of the parties has now been properly averred. (See Pl. Attorney Cert., Docket No. 38-1.)

B. Standard for Summary Judgment

Summary judgment is appropriate where the Court is satisfied that the materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, or interrogatory answers, demonstrate 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. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); [**5] Fed. R. Civ. P. 56(a).

An issue is “genuine” if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A fact is “material” if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party’s evidence “is to be believed and all justifiable inferences are to be drawn in his favor.” Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that [**6] contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232, 43 V.I. 361 (3d Cir. 2001).

C. Analysis

Cooley has moved for summary judgment in his favor on several bases. One basis is that he is immune from liability for plaintiff’s injuries under N.J.S.A. 2A:62A-6 and 42 U.S.C. § 14501 et seq., both of which afford immunity to volunteer athletic coaches for damages incurred by a player during an organized sports competition. Cooley also argues that plaintiff’s claims against him are barred by plaintiff’s assumption of the risk of injury in the very physical game of rugby, as well as by the annual rugby participation agreement, which includes a provision that by agreeing to play in the league, plaintiff releases all other members and coaches from liability for any damages suffered by plaintiff [*442] through his participation in the league. In addition to these outright bars to plaintiff’s claims against Cooley, Cooley also argues that no facts demonstrate that Cooley was negligent in his coaching duties rendering him liable for [**7] plaintiff’s injuries.

Plaintiff has opposed Cooley’s motion as to the application of N.J.S.A. 2A:62A-6 and 42 U.S.C. § 14501 et seq., his assumption of risk, and the release from liability in the participation agreement. With regard to the volunteer immunity statutes, plaintiff argues that N.J.S.A. 2A:62A-6 does not apply to Cooley because he never completed a safety orientation and training skills program as required by N.J.S.A. 2A:62A-6(c)(2),5 and because Cooley was “grossly negligent,” which conduct is excluded from immunity by N.J.S.A. 2A:62A-6(c)(1). Plaintiff also argues that Cooley cannot avail himself of 42 U.S.C. § 14501 at this point because he failed to plead it as an affirmative defense in his answer to plaintiff’s complaint, and because plaintiff was grossly negligent, which is also exempted from immunity under the federal volunteer immunity act.

5 Cooley represents that in order to serve as a coach for Old Gaelic he completed nationwide USA Rugby training, which included “injury prevention and first aid procedures and general coaching concepts,” as required by N.J.S.A. 2A:62A-6(c)(2). Plaintiff contends, however, that in order to satisfy N.J.S.A. 2A:62A-6(c)(2), plaintiff [**8] was required to take a safety orientation program specifically provided in New Jersey. As set forth below, we need not resolve this issue.

Plaintiff further rejects Cooley’s arguments that because he assumed the risk of being injured by knowingly playing in a contact sport, and because he signed a release from liability for damages resulting from participating in the contact sport, Cooley cannot be held liable for plaintiff’s damages. Plaintiff contends that because Cooley was grossly negligent in his coaching of Old Gaelic, plaintiff did not assume the risk of injury that was beyond the bounds of typical rugby play–namely, Kroesen’s kick to plaintiff’s face that resulted from Cooley’s poor coaching of Kroesen. Plaintiff also contends that the participation agreement releases do not apply to Cooley’s gross negligence.

Even accepting all of plaintiff’s arguments – that the volunteer immunity statutes do not apply, that he did not assume the risk of the injuries he suffered, and that the participation agreements do not bar his claims – plaintiff has failed to establish sufficient facts from which a jury could conclude that Cooley was grossly negligent in his coaching duties.

Under New Jersey [**9] law, in order to prove that a person acted negligently, the plaintiff must establish: (1) a duty of care owed to the plaintiff by the defendant; (2) that defendant breached that duty of care; and (3) that plaintiff’s injury was proximately caused by defendant’s breach. Boos v. Nichtberger, 2013 N.J. Super. Unpub. LEXIS 2455, 2013 WL 5566694, *4 (N.J. Super. App. Div. Oct. 10, 2013) (citing Endre v. Arnold, 300 N.J. Super. 136, 142, 692 A.2d 97 (App. Div. 1997)). The burden of proving a negligence claim rests with the plaintiff, and as part of that burden, it is vital that plaintiff establish that his injury was proximately caused by the unreasonable acts or omissions of the defendant. Id. (citing Camp v. Jiffy Lube No. 114, 309 N.J. Super. 305, 309-11, 706 A.2d 1193 (App. Div.), cert. denied, 156 N.J. 386, 718 A.2d 1215 (1998)) (other citation omitted).

With regard to a claim of gross negligence, “the difference between ‘gross’ and ‘ordinary’ negligence is one of degree rather than of quality.” Fernicola v. Pheasant Run at Barnegat, 2010 N.J. Super. Unpub. LEXIS 1614, 2010 WL 2794074, *2 (N.J. Super. Ct. App. Div. 2010) (quoting Oliver v. Kantor, 122 N.J.L. 528, 532, [*443] 6 A.2d 205 (Sup. Ct. 1939), aff’d o.b., 124 N.J.L. 131, 10 A.2d 732 (E. & A. 1940)). “Gross negligence refers to behavior which constitutes indifference to [**10] consequences.” Griffin v. Bayshore Medical Center, 2011 N.J. Super. Unpub. LEXIS 1165, 2011 WL 2349423, *5 (N.J. Super. Ct. App. Div. 2011) (citing Banks v. Korman Assocs., 218 N.J. Super. 370, 373, 527 A.2d 933 (App. Div. 1987)).

Cooley argues that plaintiff cannot provide any facts to establish that he caused Kroesen to kick plaintiff in the face during a rugby match. Cooley argues that there is no evidence to support that Cooley knew that Kroesen was prone to violence beyond what is typical during a rugby match, which is supported by the fact that Kroesen had never previously received a yellow card (for a small infraction resulting in a period of time out from a game) or a red card (for a serious infraction resulting in discharge from the game).6 Moreover, Cooley argues that plaintiff has not provided any evidence to suggest that Cooley failed in his duty as a coach by affirmatively encouraging Kroesen or any of his players to act violently during a rugby match, or by failing to appreciate a player’s violent tendencies.7

6 Plaintiff does not dispute that he had received three yellow cards in the past.

7 Cooley also counters plaintiff’s allegations that Kroesen intentionally kicked plaintiff in the face, because it is not clear whether [**11] Kroesen, who, according to Cooley and other players, was attempting to save his teammate from being punched by plaintiff, slipped while entering the fray. The dispute over the nature of Kroesen’s and plaintiff’s actions during the altercation is not material to the resolution of plaintiff’s claims against Cooley, however, because to decide Cooley’s motion for summary judgment, it must be accepted as true that Kroesen intentionally kicked plaintiff in the face.

In the context of arguing that Cooley is not entitled to immunity under N.J.S.A. 2A:62A-6(c)(1) because he was grossly negligent in his coaching duties, plaintiff argues that his negligence claim against Cooley is supported by his liability expert, Dr. Leonard K. Lucenko, who is qualified in federal and state courts as an expert in the field of physical education, recreation, coaching, and sports risk management and safety. According to Dr. Lucenko, Cooley deviated from reasonable coaching standards as follows:

1. The failure to exercise due care and foresight even though it was foreseeable that noncompliance with the Laws of the Game of Rugby created the environment for serious and permanent injury.

2. The failure to understand [**12] and appreciate well known coaching risk management principles, such as the nine legal duties of a coach.

3. The failure to properly teach and enforce the Laws of the Game of Rugby.

4. The failure to recognize the dangerous conditions created by the failure to comply with the Laws of the Game of Rugby.

5. The failure to instruct and train the players on what actions to take regarding fighting.

6. The failure to closely monitor and supervise Mr. Kroesen given his intensity as a player.

7. The failure to effectively and adequately address the intense play of Mr. Kroesen, which was resulting in injuries to other players.

8. The failure on the part of Mr. Cooley to understand he was bound by the USA Rugby Coaches’ Code of Conduct.

9. The failure to adopt and follow the principles outlined in the Code of Conduct.

(Pl. Opp. at 13, citing Ex. A.) Plaintiff argues that Dr. Lucenko’s conclusions [*444] present material disputed evidence as to whether Cooley was grossly negligent in his coaching duties, and therefore his claim against Cooley should be sent to a jury to decide.

Gross negligence requires substantial proof beyond simple negligence; it requires wanton or reckless disregard for the safety of others. [**13] Griffin v. Bayshore Medical Center, 2011 N.J. Super. Unpub. LEXIS 1165, 2011 WL 2349423, *5 (N.J. Super. Ct. App. Div. 2011) (citing In re Kerlin, 151 N.J. Super. 179, 185, 376 A.2d 939 (App. Div.1977)). Setting aside any expert qualification issues under Daubert,8 and accepting as true all of Dr. Lucenko’s findings that Cooley failed to properly instruct his players with regard to the propriety of fighting during a rugby match, the Court cannot find that plaintiff has provided sufficient disputed facts to send to a jury on the issue of proximate causation. None of Dr. Lucenko’s conclusions, nor any of the other evidence in the record, demonstrate that Cooley acted indifferently, willfully, or wantonly in his coaching of Kroesen such that he should be held legally responsible for the injuries plaintiff sustained when Kroesen kicked plaintiff in the face.

8 Federal Rule of Evidence 702, as amended in 2000 to incorporate the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), imposes an obligation upon a district court to ensure that expert testimony is not only relevant, but reliable. As the Third Circuit has made clear, “the reliability analysis [required by Daubert] applies to all aspects of an [**14] expert’s testimony: the methodology, the facts underlying the expert’s opinion, [and] the link between the facts and the conclusion.” ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 291 (3d Cir. 2012) (citations omitted). To be admissible, expert testimony must concern subject matter beyond the average juror’s understanding, be sufficiently reliable, and be offered by a sufficiently qualified expert. DeHanes v. Rothman, 158 N.J. 90, 727 A.2d 8 (N.J. 1999).

As noted by the New Jersey courts, the question of the scope of duty among coaches and players is intertwined with considerations of public policy. Egerter v. Amato, 2006 N.J. Super. Unpub. LEXIS 3008, 2006 WL 551571, *3 (N.J. Super. Law Div. 2006) (citing Hopkins v. Fox and Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (N.J. 1993)). The “strong social policy to facilitate free and aggressive participation in athletic activity requires . . . leeway at least where no specific rule or statute has been violated. Otherwise courts and juries will become de facto athletic directors, second guessing actor’s conduct in reviewing generalized claims of negligence.” Id. (citations omitted). “The fact is that any athletic endeavor involves some degree of risk. Coaches are expected to absorb such risks, just like [**15] participants in informal games or athletes on a scholastic gridiron. . . . [J]udges are not athletic directors. They should not formulate standards of care which require them and juries to function as if they were.” Id. (citation omitted).9

9 It is interesting to note that Dr. Lucenko served as plaintiff’s expert in Egerter, where a track coach sued her 8th grade student for injuries she sustained when the student hit her with a shot put. Dr. Lucenko concluded in that case that plaintiff organized, supervised and conducted the practice session in an appropriate and professional manner, but that it was the instantaneous and negligent decision by the student to throw the shot before given the instruction to do so that led to the plaintiff’s severe and life altering injuries. Egerter v. Amato, 2006 N.J. Super. Unpub. LEXIS 3008, 2006 WL 551571, *1 (N.J. Super. Law Div. 2006). On defendant’s motion for summary judgment, the court found that the recklessness standard of negligence applied, and there was no evidence that the student acted recklessly.

In an earlier case proceeding under the same school of thought, and one that is similar to plaintiff’s case here against Cooley, a student in one high school filed suit [*445] against a [**16] soccer coach from another high school for injuries he sustained when an opposing player “undercut” him. Nydegger v. Don Bosco Preparatory High School, 202 N.J. Super. 535, 495 A.2d 485, 485 (N.J. Super. Ct. Law Div. 1985). The student’s allegations against the opposing team’s coach were that he taught his players to compete in an “aggressive and intense manner” and that winning the game is all important. In resolving the coach’s motion to dismiss, the court concluded, “[I]n the absence of an instruction by a coach to one of his players to commit a wrongful act or his instructing one in moves or procedures that would increase the risk of harm to opposing players, a coach is not responsible to a player on an opposing team who is injured.” Nydegger, 495 A.2d at 485. The court elaborated:

Interscholastic sports are not compulsory school programs. Students who participate do so voluntarily. Those who participate in a sport such as soccer expect that there will be physical contact as a result of 22 young men running around a field 50 by 100 yards. Physical contact is not prohibited by the rules of soccer. Injuries do result. Those who participate are trained to play hard and aggressive.

[N]o student or parent [**17] is blind to the realities of interscholastic athletics. The possibility of a serious injury exists regardless of the care exercised by schools and their personnel. Imposing liability upon schools and their coaches based on negligent or wrongful acts of players, committed during the course of play would have the practical effect of eventually eliminating interscholastic athletics. Interscholastic athletic activities have become an integral part of the intellectual, physical and social development of young people. No matter what the intentions or good purpose, a coach cannot insure or guarantee that each and every member of his team will not commit a foul or will not in the heat of the contest do an act beyond that which is acceptable.

A coach cannot be held responsible for the wrongful acts of his players unless he teaches them to do the wrongful act or instructs them to commit the act. There is absolutely no evidence in the record that would support such a finding. Teaching players to be intense and aggressive is an attribute. All sports and many adult activities require aggressiveness and intensity.

Id. at 486-87.

The rationale in Nydegger holds true in this case. Plaintiff voluntarily [**18] participated in an aggressive contact sport where it is common to engage in on-field “rucks.” Plaintiff was involved in a ruck that day, administering a “short jab in the ribs” to the other player, when Kroesen intervened and kicked plaintiff in the face. Absent evidence that Cooley directed Kroesen specifically, or his team in general, to inflict violence onto opposing team players as part of the game, Cooley cannot be held liable for plaintiff’s injuries. Additionally, any of Cooley’s alleged failings as a coach as articulated by Dr. Lucenko cannot serve as the basis for finding proximate causation because there cannot be any definitive conclusion that even if Cooley were the perfect coach, Kroesen would not have acted as he did. See, e.g., id., at 486 (“[A] coach cannot insure or guarantee that each and every member of his team will not commit a foul or will not in the heat of the contest do an act beyond that which is acceptable.”); Divia v. South Hunterdon Regional High School, 2005 WL 977028, *7 (N.J. Super. Ct. App. Div. 2005) (explaining that proximate cause is the efficient cause, the one which necessarily sets the other causes in operation; it is the act or omission, which [**19] directly brought about [*446] the happening complained of, and in the absence of which the happening complained of would not have occurred) (citing Verdicchio v. Ricca, 179 N.J. 1, 843 A.2d 1042, 1057 (N.J. 2004) (explaining that merely establishing that a defendant’s negligent conduct had some effect in producing the harm does not automatically satisfy the burden of proving it was a substantial factor)).

In sum, the evidence in the record, viewed most favorably to plaintiff, cannot support his claim that Cooley was grossly negligent in his coaching of Kroesen such that Cooley can be held liable for plaintiff’s injuries inflicted by Kroesen during the rugby match. Consequently, Cooley’s motion for summary judgment must be granted.10 An appropriate Order will be entered.

10 Plaintiff’s only remaining claim in this case is against Kroesen, upon whom the Clerk entered default at plaintiff’s request. (See 1/28/2011 Docket Entry.) As directed in the accompanying Order, plaintiff shall commence prosecution of his claim against Kroesen within 30 days, or this matter will be closed for lack of prosecution.

Date: March 25, 2014

At Camden, New Jersey

/s/ Noel L. Hillman



For the reasons expressed [**20] in the Court’s Opinion filed today,

IT IS on this 25th day of March , 2014

ORDERED that defendant Mark Cooley’s motion for summary judgment [34] is GRANTED; and it is further

ORDERED that, within 30 days of the date of this Order, plaintiff shall commence prosecution of his claims against defendant John A. Kroesen. If plaintiff fails to do so, plaintiff’s case will be closed for lack of prosecution.

/s/ Noel L. Hillman