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
[NO NUMBER IN ORIGINAL]
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
DISPOSITION: AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
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.
OPINION BY: HIGHERS
[*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?
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?
* * * *
Q. Do you know who was watching Todd?
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:
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.
Mrs. Ira Childress (subscribed)
Relationship to Entrant
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.
CONCUR BY: TOMLIN
SEPARATE CONCURRING OPINION
TOMLIN, P.J., W.S.
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.Posted: February 13, 2017
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.
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
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.
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Title 3 Remedies and Special Actions and Proceedings
Chapter 30- Actions and Suits in Particular Cases
Volunteers Transporting Older Persons and Persons with Disabilities
GO TO OREGON REVISED STATUTES ARCHIVE DIRECTORY
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.
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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
SUPREME COURT OF VIRGINIA
257 Va. 509; 514 S.E.2d 619; 1999 Va. LEXIS 69
April 16, 1999, Decided
PRIOR HISTORY: [***1] FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK. Everett A. Martin, Jr., Judge.
COUNSEL: Philip J. Geib for appellants.
Allan S. Reynolds, Sr. (Reynolds, Smith & Winters, on brief), for appellees.
JUDGES: Present: All the Justices. OPINION BY JUSTICE ELIZABETH B. LACY.
OPINION BY: ELIZABETH B. LACY
[**620] [*510] OPINION BY JUSTICE ELIZABETH B. LACY
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 357Posted: March 9, 2015
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
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.
OPINION BY: PRESSLER
[*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
Paul M., Plaintiff, v. John A. and Mark Cooley, et al., Defendants.
Civ. A. No. 10-5723 (NLH)(AMD)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
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)
COUNSEL: [**1] DOMINIC ROMAN DEPAMPHILIS, D’AMATO LAW FIRM PC, EGG HARBOR TOWNSHIP, NJ, On behalf of plaintiff.
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).
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
NOEL L. HILLMAN, U.S.D.J.
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  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
NOEL L. HILLMAN, U.S.D.J.
Dennis Wagner, Appellee v. Terry McGrady, Appellant
Court of Appeals No. S-08-010
COURT OF APPEALS OF OHIO, SIXTH APPELLATE DISTRICT, SANDUSKY COUNTY
2009-Ohio-987; 2009 Ohio App. LEXIS 798
March 6, 2009, Decided
PRIOR HISTORY: [**1]
Trial Court No. CVI 0700292.
COUNSEL: Terry J. Lodge, for appellant.
JUDGES: HANDWORK, J. Peter M. Handwork, J., Arlene Singer, J., William J. Skow, P.J., CONCUR.
OPINION BY: Peter M. Handwork
DECISION AND JUDGMENT
[*P1] This case is before the court on appeal from a judgment of the Sandusky County Court, District No. 2. Appellant, Terry McGrady, asserts the following assignments of error:
[*P2] “Assignment of Error No. 1. A volunteer animal rescuer has no duty to learn the identify [sic] of a putative owner of a dog who makes no immediate attempt to reclaim his lost animal and is not liable for adoption of the dog to another home after reasonable efforts have been made.
[*P3] “Assignment of Error No. 2. Appellant was not a proper Defendant because he was an unpaid volunteer working for a nonprofit humanitarian agency.
[*P4] “Assignment of Error No. 3. There was no basis for the damage award of $ 500.00.
[*P5] “Assignment of Error No. 4. The court’s ruling was against the manifest weight of the evidence.”
[*P6] Appellee failed to file an appellate brief; therefore, we shall take appellant’s recitation of the facts and issues as correct and reverse the judgment of the trial court if that brief reasonably sustains that action. [**2] See App.R. 18(C); United Bhd. of Carpenters & Joiners of Am., Local Union No. 1581 v. Edgerton Hardware Co., Inc., 6th Dist. No. WM-06-017, 2007 Ohio 3958, P 4.
[*P7] Appellant is a volunteer for the Society for the Protection of Animals, Inc. (“SPA”), an Ohio nonprofit corporation that provides a rescue service for stray cats and dogs. During the early morning hours of Saturday, October 13, 2007, appellant discovered a large brown dog, a chocolate Labrador Retriever, at his back door. Because he and his wife were already fostering several animals, appellant took the dog to the Fremont Animal Hospital to be boarded. He also called the pound to alert them of a lost dog.
[*P8] On the following Monday, October 15, 2007, appellant called the Fremont News Messenger and placed an advertisement asking anyone who had lost a large dog in the area of County Road 41 in Fremont to call his telephone number (also listed in the ad) and describe the dog. The ad ran for three days, October 16 through October 18, 2007. On Friday, October 19, 2007, the dog was neutered, checked for heartworm, and given all of his “shots.” The owner listed on the veterinarian’s medical record is the SPA. On Saturday, the dog was [**3] adopted by a family who had previously adopted dogs from the SPA. The new owner of the Labrador Retriever signed the SPA’s standard adoption contract, and the SPA received the $ 75 adoption fee. At the trial of this cause, appellant also provided the affidavit of the new owner of the dog stating that she had adopted the Labrador Retriever from the SPA.
[*P9] In his testimony, Wagner claimed that his chocolate Labrador Retriever, which was tied to a doghouse, “slipped his collar and disappeared” on October 13, 2007. After asking his neighbor whether he had seen the dog and learning that he had not seen him, appellee drove around the vicinity looking for the dog. Appellee went to the dog pound on either October 16 or October 17, 2007, to see if his Labrador Retriever was “picked up” by the dog warden. Wagner further testified that on Friday, October 19, 2007, someone from the pound called him and stated that appellant might have his dog. According to appellee, he spoke with McGrady the next day and appellant admitted that the Labrador Retriever was appellee’s dog. Appellant, however, also informed appellee of the fact that the dog was already adopted by another family.
[*P10] In December 2007, Wagner [**4] filed the instant small claims lawsuit, seeking a judgment in the amount of $ 750, plus interest, from McGrady, as compensation for the conversion of his property, that is, the dog. At the hearing on appellee’s complaint, appellant maintained that any actions he took with regard to the Labrador Retriever he found was done in his capacity as a volunteer for a nonprofit charitable organization, that is, the SPA, and he was, therefore, not liable for any damages suffered by appellee for the loss of his dog.
[*P11] On February 6, 2008, the small claims judge entered a judgment awarding appellee $ 500. The judge held: “At time defendant adopted dog out, they knew to [sic] owner of dog was looking for his dog 1. Membership in SPA does not give immunity for sale or adopting animal that belongs to another.” This timely appeal followed.
1 There is no evidence in the record of this cause to establish that appellant knew the dog belonged to appellee at the time it was adopted.
[*P12] Because it is dispositive of this appeal, we shall first consider appellant’s second assignment of error. In that assignment, appellant contends that as a volunteer for a nonprofit charitable organization, he was not the party in [**5] interest and is immune from suit under R.C. 2305.38. We agree. R.C. 2305.38 provides, in pertinent part:
[*P13] “(A) [HN1] As used in this section:
[*P14] “* * *
[*P15] “(5) ‘Volunteer’ means an officer, trustee, or other person who performs services for a charitable organization but does not receive compensation, either directly or indirectly, for those services.
[*P16] “* * *
[*P17] “(C) [HN2] A volunteer is not liable in damages in a civil action for injury, death, or loss to person or property that arises from the volunteer’s actions or omissions in connection with any supervisory or corporate services that the volunteer performs for the charitable organization, unless either of the following applies:
[*P18] “(1) An action or omission of the volunteer involves conduct as described in division (B)(1) or (2) of this section;
[*P19] “(2) An action or omission of the volunteer constitutes willful or wanton misconduct or intentionally tortious conduct.”
[*P20] [HN3] A volunteer is liable for damages in a civil action for injury, death, or loss to person or property under R.C. 2305.38(B) only if either of the following applies:
[*P21] “(1) With prior knowledge of an action or omission of a particular officer, employee, trustee, or other volunteer, the volunteer authorizes, [**6] approves, or otherwise actively participates in that action or omission.
[*P22] “(2) After an action or omission of a particular officer, employee, trustee, or other volunteer, the volunteer, with full knowledge of that action or omission, ratifies it.”
[*P23] In the present case, all of the evidence offered at trial demonstrates that appellant was acting in his capacity as a volunteer working for SPA, an undisputed nonprofit charitable organization. Furthermore, no evidence was offered to show that appellant’s actions would render him liable to Wagner for damages suffered as the result of the loss of Wagner’s dog, if, indeed, the dog found by appellant was appellee’s dog, under R.C. 2305.38 (B)(1) and/or (2) or pursuant to R.C. 2305.38(C). Accordingly, appellant’s second assignment of error is found well-taken. Appellant’s first, third, and fourth assignments of error are, thereby, rendered moot.
[*P24] The judgment of the Sandusky County Court, District No. 2 is reversed. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk’s expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Sandusky County.
JUDGMENT [**7] REVERSED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J.
Arlene Singer, J.
William J. Skow, P.J.
Warren Stemke, as Father and Natural Guardian of Brian Stemke, an infant under the age of eighteen (18) yeas and Warren Stemke, Individually, Plaintiffs, – against – Campbell Mastrogiacomo an infant under the age of eighteen (18) years by his Parents and Natural Guardians, Cheryl Mastrogiacomo and Michael Mastrogiacomo, Cheryl Mastrogiacomo, Michael Mastrogiacomo, Middle Country Boys Lacrosse Club, Inc., Suffolk County Police Athletic League, Inc., Roger Tobias, World Gym, and Parisi Speed School, Defendants. Index No. 11-10634
SUPREME COURT OF NEW YORK, SUFFOLK COUNTY
2014 N.Y. Misc. LEXIS 906; 2014 NY Slip Op 30504(U)
February 26, 2014, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
COUNSEL: [*1] For Plaintiff: EDELMAN, KRASIN & JAYE, PLLC, Carle Place, New York.
For Defendants Mastrogiacomo: RICHARD T. LAU & ASSOCIATES, Jericho, New York.
For Defendants Middle Country Boys Lacross, Suffolk County Police Athletic League & Roger Tobias: RIVKIN RADLER LLP, Uniondale, New York.
For Defendants World Gym & Parisi Speed School: MIRANDA SAMBURSKY SLOAN SKLARIN VERVENIOTIS LLP, Mineola, New York.
JUDGES: PRESENT: Hon. PETER H. MAYER, Justice of the Supreme Court.
OPINION BY: PETER H. MAYER
Upon the reading and filing of the following papers in this matter: (1) Notice of Motion/Order to Show Cause by the defendants World Gym & Parisi Speed School, dated June 20, 2013, and supporting papers (including Memorandum of Law dated ); Notice of Motion/Order to Show Cause by the defendants Middle Country Boys Lacrosse Club, Inc., Suffolk Police Athletic League, Inc. & Roger Tobias, dated June 21, 2013, and supporting papers (including Memorandum of Law dated ); Notice of Motion /Order to Show Cause by the defendants Cheryl & Michael Mastrogiacomo, dated July 12, 2013, and supporting papers (including Memorandum of Law dated ); (2) Affirmation in Opposition by the defendants World Gym & Parisi Speed School, dated [*2] August 12, 2013, and supporting papers; Affirmation in Opposition by the plaintiffs, dated September 6, 2013, and supporting papers; [**2] (3) Reply Affirmation by the defendants World Gym & Parisi Speed School, dated September 12, 2013, and supporting papers; Reply Affirmation by the defendants Middle Country Boys Lacrosse Club, Inc., Suffolk Police Athletic League, Inc. & Roger Tobias, dated September 16, 2013, and supporting papers; (4) Other Memorandum of Law (
and after hearing counsels’ oral arguments in support of and opposed to the motion); and now
UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is
ORDERED that the motion (#004) by defendants Middle Country Boys Lacrosse Club, Inc., Suffolk County Police Athletic League, Inc., and Roger Tobias, the motion (#005) by defendants Setauket Country Club Ltd and Parisi Speed School, and the motion (#006) by defendants Cheryl Mastrogiacomo and Michael Mastrogiacomo are consolidated for the purposes of this determination; and it is
ORDERED that the motion (#004) by defendants Middle Country Boys Lacrosse Club, Inc., Suffolk County Police Athletic League, Inc., and Roger Tobias [*3] for summary judgment dismissing the complaint against them is granted; and it is
ORDERED that the motion (#005) by defendants Setauket Country Club Ltd and Parisi Speed School for summary judgment dismissing the complaint against them is denied; and it is further
ORDERED that the motion (#006) by defendants Cheryl Mastrogiacomo and Michael Mastrogiacomo for summary judgment dismissing the complaint against them is granted.
On November 20, 2010, infant plaintiff Brian Stemke, who at that time was 12 years old and a member of a lacrosse team run by defendant Middle Country Boys Lacrosse Club, Inc., was injured while attending a training program run by defendant Parisi Speed School at a facility owned by defendant Setauket Country Club, Ltd, d/b/a World Gym Setauket, when he collided with infant defendant Campbell Mastrogiacomo and fell to the floor. Infant plaintiff’s father, plaintiff Warren Stemke, suing individually and on behalf of his son, commenced this action against defendants, alleging they failed to provide adequate supervision of infant plaintiff and the other participants in the training session.
Defendants Middle Country Boys Lacrosse Club, Inc., Suffolk County Police Athletic [*4] League, Inc., and Roger Tobias (hereinafter collectively referred to as the Lacrosse Club defendants) now move for summary judgment dismissing the complaint against them, arguing that they had no duty to supervise infant plaintiff or Campbell Mastrogiacomo at the time and place of the subject incident, and that the alleged inadequate supervision was not the proximate cause of infant plaintiff’s injuries. They also argue that the Volunteer Protection Act shields defendant Roger Tobias, coach of the Middle Country Boys Lacrosse team, from personal liability. In support of their motion, the Lacrosse Club defendants submit copies of the pleadings, transcripts of the parties’ deposition testimony, and an affidavit of Michael Harvey.
Defendants Setauket Country Club Ltd and Parisi Speed School (hereinafter collectively referred to as the World Gym defendants) move for summary judgment dismissing the complaint and all cross claims against them, arguing that the actions of Campbell Mastrogiacomo were unforeseeable. In support of their motion, they submit copies of the pleadings and transcripts of the parties’ deposition testimony.
Defendants Cheryl Mastrogiacomo and Michael Mastrogiacomo (hereinafter [*5] collectively referred to as the Mastrogiacomo defendants) move for summary judgment dismissing the complaint against them on the grounds that they had no knowledge of any propensity on the part of their son, infant defendant Campbell Mastrogiacomo, to engage in conduct which could be deemed “vicious” or dangerous to others. In support of their motion, they submit copies of the pleadings and transcripts of the deposition testimony [**3] of Cheryl Mastrogiacomo and Campbell Mastrogiacomo.
Plaintiffs oppose defendants’ motions, arguing that triable issues of fact exist as to the adequacy and the quality of the supervision prior to the incident. As to the Mastrogiacomo’s motion, plaintiffs also argue that it is untimely. The World Gym defendants partially oppose the motion by the Lacrosse Club defendants, arguing that they cannot be liable for infant plaintiff’s injuries as they had no notice of the unforeseeable actions of Campbell Mastrogiacomo.
The affidavit of Michael Harvey, a Suffolk County Police Officer and Police Coordinator of the Police Coordinator of the Suffolk County Police Athletic League’s (PAL) lacrosse program, states that the PAL is a not-for-profit corporation which, among [*6] other things, supports juvenile crime prevention and promotes recreational sports programs for minors throughout Suffolk County. It states that the PAL does not organize, schedule, supervise, manage or run any clinics or training sessions for players in its lacrosse league at Parisi Speed School or World Gym Setauket. It states that the subject training session at Parisi Speed School and the lacrosse practice held by Tobias for the lacrosse players affiliated with the Middle Country lacrosse program was arranged independently by Middle Country Boys Lacrosse Club. It further states that no member of the PAL was present for the offseason lacrosse workouts or practices that were held by Tobias on the date of the incident.
At his examination before trial, Tobias testified that he was a volunteer lacrosse coach for the Middle Country Boys Lacrosse Club, which is a town league that is a part of the Suffolk County Police Athletic League. He testified that he organized a training session with Parisi Speed School at World Gym Setauket for the players on the lacrosse team, including players who would be joining the team for the upcoming season. He explained that Parisi Speed School is a training [*7] center for speed and agility, where the participants do exercises and work on running techniques. Tobias testified that he attended the training session, as his son was on the lacrosse team, and that some of the other parents stayed to observe the training session. He testified that he observed the children “messing around,” bouncing three-foot wide, light-weight yoga balls. He testified that he told the children to stop bouncing the balls because the training session had just begun and the training did not involve use of the yoga balls. He testified that he did not observe the incident, but learned that infant plaintiff was injured when his mother came to pick him up. Tobias testified that he is not aware of any behavioral issues involving Campbell Mastrogiacomo, and that Campbell’s father was present at the training session.
At his examination before trial, infant plaintiff testified that on the day of the incident, he was dropped off by his mother at World Gym Setauket for training in the Parisi Speed School. He testified that he was waiting on the gym floor for the training session to begin with about 20 other boys when Campbell Mastrogiacomo sprinted towards him and pushed him, [*8] causing him to fall. Infant plaintiff explained that he was holding a yoga ball, intending to return it to a bin, when Campbell collided with the ball that he was holding. Infant plaintiff testified that there were no adults in the room at the time of the incident, and that the trainer had not arrived yet.
At his examination before trial, Campbell Mastrogiacomo testified that he was waiting with other members of the lacrosse team for the training session to begin at Parisi Speed School when the incident occurred. He testified that all the children waiting there were running around kicking and throwing the yoga balls; that the yoga balls were just “flying everywhere”; and that no one told them to stop. He testified [**4] that some of the children were playing catch with the yoga balls and some were throwing them at each other. He testified that he observed infant plaintiff playing with the yoga balls. Campbell Mastrogiacomo testified that he was trying to avoid being hit by a yoga ball when he ran into infant plaintiff, causing both of them to fall. He further testified that he did not observe infant plaintiff immediately prior to the accident, and that he accidentally ran into him. He testified [*9] that in the 20 minutes that he was waiting for the training session to begin, he did not observe any employees or trainers from Parisi Speed School at the facility, but that there were five or six parents present, including Tobias.
At his examination before trial, Tom Jaklitsch, general manager of World Gym Setauket, testified that Parisi Speed School is a franchise that World Gym Setauket purchased, which is designed to instruct athletes to improve their speed, agility and strength. He testified that at the time of the incident, Michael Strockbine, the program director, would run the Parisi Speed School training sessions. He testified that Strockbine is no longer employed by World Gym Setauket.
On a motion for summary judgment the movant bears the initial burden and must tender evidence sufficient to eliminate all material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 476 N.E.2d 642, 487 NYS2d 316 ). Once the movant meets this burden, the burden shifts to the opposing party to demonstrate that there are material issues of fact, however, mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues of fact (see Zuckerman v City of New York, 49 NY2d 557, 404 N.E.2d 718, 427 NYS2d 595 ; [*10] Perez v Grace Episcopal Church, 6 AD3d 596, 774 NYS2d 785 [2d Dept 2004]). The court’s function is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility; therefore, in determining the motion for summary judgment, the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true (see Roth v Barreto, 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; O’Neill v Fishkill, 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]).
To prove a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries (see Pulka v Edelman, 40 NY2d 781, 358 N.E.2d 1019, 390 NYS2d 393 ; Engelhart v County of Orange, 16 AD3d 369, 790 NYS2d 704 [2d Dept], lv denied 5 NY3d 704, 834 N.E.2d 780, 801 NYS2d 1 ). A duty of reasonable care owed by the tortfeasor to the plaintiff is essential to any recovery in negligence (Eiseman v State, 70 NY2d 175, 187, 511 N.E.2d 1128, 518 NYS2d 608 ; see Espinal v Melville Snow Contrs., 98 NY2d 136, 773 N.E.2d 485, 746 NYS2d 120 ; Pulka v Edelman, supra). Although juries determine whether and to what extent a particular duty [*11] was breached, it is for the courts to decide in the first instance whether any duty exists and, if so, the scope of such duty (Church v Callanan Indus., 99 NY2d 104, 110-111, 782 N.E.2d 50, 752 NYS2d 254 ; Darby v Compagnie Natl. Air France, 96 NY2d 343, 347, 753 N.E.2d 160, 728 NYS2d 731 ; Waters v New York City Hous. Auth., 69 NY2d 225, 229, 505 N.E.2d 922, 513 NYS2d 356 ). Courts traditionally “fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability” (Palka v Servicemaster Management Servs. Corp., 83 NY2d 579, 586, 634 N.E.2d 189, 611 NYS2d 817 ; see Tagle v Jakob, 97 NY2d 165, 763 N.E.2d 107, 737 NYS2d 331 ).
Enacted to provide volunteers serving nonprofit organizations and government entities with “certain protections from liability abuses” (42 USC § 14501 [b]), the federal Volunteer Protection Act immunizes [**5] individuals who perform services for a not-for-profit corporation and do not receive compensation exceeding $500 per year from liability for harm they [*12] caused in the scope of their duties, provided the harm was not caused by “willful or criminal misconduct, gross negligence, reckless misconduct or a flagrant indifference to the rights or safety of the individual harmed by the volunteer” (42 USC § 14503 [a]). Here, the evidence submitted in support of the motion shows Tobias was an unpaid volunteer for the Middle Country Boys Lacrosse Club at the time the incident occurred.
The Lacrosse defendants contend that PAL, Middle Country Boys Lacrosse Club, and Tobias owe no duty to supervise infant plaintiff, as the incident occurred inside the World Gym Setauket facility and involved infant plaintiff and defendant Campbell Mastrogiacomo, who were there to participate in a training session given by Parisi Speed School. According to the affidavit of Harvey, the PAL did not organize or schedule the training session at the Parisi school, and no PAL members were present at the time of the incident.
Here, Tobias, the coach of Middle Country Boys Lacrosse Club, organized and scheduled the training session for the lacrosse club, and was present at the facility at the time of the incident. However, while members of the lacrosse club were invited [*13] to the training session by Tobias, the lacrosse club had no control over training or supervision of the members at the time of the incident, and thus had no duty to infant plaintiff (see Mercer by Mercer v City of New York, 255 AD2d 368, 679 NYS2d 694 [2d Dept 1998]; Mongello v Davos Ski Resort, 224 AD2d 502, 638 NYS2d 166 [2d Dept 1996]). In opposition, plaintiffs failed to raise a triable issue of fact as to whether the Lacrosse defendants owed a duty to infant plaintiff. Plaintiffs’ counsel fails to assert any specific arguments in opposition to the Lacrosse defendants, and merely mentions in a footnote that a question of fact exists as to whether Tobias was operating within the scope of a volunteer, and thus whether the Volunteer Protection Act applies. Accordingly, the motion for summary judgment dismissing the complaint by the Lacrosse Club defendants is granted.
The motion for summary judgment by the World Gym defendants, however, is denied. The World Gym defendants, as an owner or tenant in possession of real property who holds their property open to the public, have a general duty to maintain it in a reasonably safe condition so as to prevent the occurrence of foreseeable injuries [*14] (see Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 407 N.E.2d 451, 429 NYS2d 606 ; Kimen v False Alarm, Ltd., 69 AD3d 579, 893 NYS2d 158 [2d Dept 2010]; Boderick v R.Y. Mgmt. Co., 71 AD3d 144, 897 NYS2d 1 [1st Dept 2009]; Meyer v Tyner, 273 AD2d 364, 709 NYS2d 618 ). Significantly, the World Gym defendants failed to submit sufficient evidence from a party with first hand knowledge of the supervision provided to the participants of the training session. Moreover, the contention that the actions of Campbell Mastrogiacomo were sudden and abrupt is without merit, as his testimony reveals that the children were running around and throwing the yoga balls for approximately 20 minutes before the accident. Thus, World Gym failed to establish a prima facie case that the accident occurred so suddenly and in such a short span of time that no level of supervision could have prevented it (see Oliverio v Lawrence Pub. Schools, 23 AD3d 633, 805 NYS2d 638 [2d Dept 2005]; Douglas v John Hus Moravian Church of Brooklyn, Inc., 8 AD3d 327, 778 NYS2d 77 [2d Dept 2004]; c.f. Lopez v Freeport Union Free School Dist., 288 AD2d 355, 734 NYS2d 97 [2d Dept 2001]). A triable issue of fact also exists as to whether the [*15] World Gym defendants were negligent in leaving the yoga balls out in the area where the children were waiting, which presented a danger of improper use, and in failing to have an adult present to supervise the children. Accordingly, the motion by the World Gym defendants for summary judgment dismissing the complaint against them is denied.
[**6] With regard to the motion for summary judgment by the Mastrogiacomo defendants, parents have an obligation to supervise their children (Holodook v Spencer, 36 NY2d 35, 45, 324 N.E.2d 338, 364 NYS2d 859 ), and may be held liable to a third-party for injury caused by an infant child’s improvident use of a dangerous instrument if they entrusted the child with such dangerous instrument (see Holodook v Spencer, 36 NY2d 35, 324 N.E.2d 338, 364 NYS2d 859; Nolechek v Gesuale, 46 NY2d 332, 385 N.E.2d 1268, 413 NYS2d 340 ). Parents also may be held liable for the torts of their infant child if they negligently failed to restrain the child from committing a vicious act, if they had knowledge that the child had a propensity to engage in violent or vicious conduct (see Rivers v Murray, 29 AD3d 884, 815 NYS2d 708 [2d Dept 2006]; Armour v England, 210 AD2d 561, 619 NYS2d 807 [3d Dept 1994]; Steinberg v Cauchois, 249 AD 518, 293 NYS2d 147 [2d Dept 1937]). [*16] Evidence of a single incident of violence involving the infant child, however, is not sufficient to establish that the child had a propensity to engage in vicious conduct (see Davies v Incorporated Vil. of E. Rockaway, 272 AD2d 503, 708 NYS2d 147 [2d Dept 2000]; Armour v England, supra).
Initially, the Court notes that while the Mastrogiacomo defendants’ motion for summary judgment was untimely, having been made more than 120 days after the filing of the note of issue in this action, an untimely motion for summary judgment may nevertheless be considered as long as it involves issues related to a timely pending summary judgment motion (see CPLR 3212 [a]; James v Jamie Towers Hous. Co., 294 AD2d 268, 743 NYS2d 85 , affd 99 NY2d 639, 790 N.E.2d 1147, 760 NYS2d 718 [1st Dept 2003]; see also, Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 793 NYS2d 176 [2d Dept 2005]). Under the instant circumstances the issues raised by the Mastrogiacomo defendants’ untimely motion are already properly before the Court and thus, the nearly identical nature of the grounds may provide the requisite good cause to review the untimely motion on the merits.
Here, there is no evidence in the record that defendants Cheryl [*17] Mastrogiacomo and Michael Mastrogiacomo had knowledge prior to the subject incident that their son had a propensity to engage in vicious conduct. The testimony of Cheryl Mastrogiacomo reveals that she was aware of an incident where Campbell pulled the pants of another student down in the cafeteria, and an incident when he was in the fourth grade where a child was injured while they were “horseplaying.” However, those incidents are insufficient to establish that Campbell had a tendency to engage in vicious conduct which might endanger a third-party (see Rivers v Murray, supra; Armour v England, supra). In opposition, plaintiffs’ merely argue that the motion by Mastrogiacomo defendants was untimely. Accordingly, the motion by the Mastrogiacomo defendants for summary judgment dismissing the complaint against them is granted.
The action is severed and shall continue against defendants World Gym, Parisi Speed School, and Campbell Mastrogiacomo.
/s/ Peter H. Mayer
PETER H. MAYER, J.S.C.
The Wrongful Death Beneficiaries of Christopher Elliot, Deceased, Plaintiffs v. La Quinta Corporation, 2007 U.S. Dist. LEXIS 16837Posted: March 9, 2015
The Wrongful Death Beneficiaries of Christopher Elliot, Deceased, Plaintiffs v. La Quinta Corporation, La Quinta Properties, Inc., La Quinta Development Partners, LP, Securitas Security Services Usa, Inc., Harry J. Burnham, Jeanette Ollie, Individually and d/b/a Shaw Athletic Youth Association, and John Does 1 through 5, Defendants
CASE NO. 2:06CV56
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI, DELTA DIVISION
2007 U.S. Dist. LEXIS 16837
March 8, 2007, Decided
COUNSEL: [*1] For The Wrongful Death Beneficiaris of Christopher Elliott, Deceased, Plaintiff: Dana J. Swan, LEAD ATTORNEY, CHAPMAN, LEWIS & SWAN, Clarksdale, MS; David Randall Wade, LEAD ATTORNEY, DAVID R. WADE, ATTORNEY, Florence, MS.
For LaQuinta Corporation, LaQuinta Properties, Inc., LaQuinta Development Partners, LP, Defendants: Monte L. Barton, Jr., LEAD ATTORNEY, COPELAND, COOK, TAYLOR & BUSH, Ridgeland, MS; Philip J. Chapman, COPELAND, COOK, TAYLOR & BUSH – Ridgeland, Ridgeland, MS.
For Securitas Security Services USA, Inc., Harry J. Burnham, Defendants: Dorrance Aultman, LEAD ATTORNEY, AULTMAN, TYNER & RUFFIN, LTD., Hattiesburg, MS; William Heath Hillman, LEAD ATTORNEY, AULTMAN, TYNER, MCNEESE & RUFFIN, Hattiesburg, MS.
JUDGES: Michael P. Mills, UNITED STATES DISTRICT JUDGE.
OPINION BY: Michael P. Mills
This cause comes before the court on the plaintiffs’ motion to remand  as well as the plaintiffs’ motion  to amend to add non-diverse defendants. The court has reviewed the briefs and submissions and is prepared to rule.
This is an action for the wrongful death of sixteen year old minor Christopher Elliot. Christopher drowned at the La Quinta [*2] Inn while on a trip with a community youth basketball team. This case was removed to federal court on March 31, 2006 from the Circuit Court of Bolivar County based on diversity of citizenship and federal question jurisdiction. Defendant Jeanette Ollie did not join in the removal and the other defendants have alleged that Ms. Ollie has been fraudulently joined in this action. The defendants also assert that any stated cause of action against Ms. Ollie is preempted by the Federal Volunteer Protection Act, giving rise to federal jurisdiction. The plaintiffs assert that they have stated claims against Ms. Ollie upon which relief can be granted, and further contend that there is no federal question in this lawsuit.
The defendant’s claim that the Federal Volunteer Protection Act, 42 U.S.C. 14501 et seq., gives rise to a federal question is incorrect. In Richardson v. United Steelworkers of America, the Fifth Circuit stated:
One clear feature of the “arising under” requirement, however, is the well-pleaded complaint rule: whether a claim arises under federal law must be determined from the allegations in the well-pleaded complaint. See generally [*3] Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3566 (2d ed.1984). In removal cases removed, the plaintiff’s well-pleaded complaint, not the removal petition, must establish that the case arises under federal law. See Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 106 S. Ct. 3229, 3232, 92 L. Ed. 2d 650 (1986); Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 103 S. Ct. 2841, 2847, 77 L. Ed. 2d 420 (1983). This requires the court to determine federal jurisdiction only from those allegations necessary to state a claim or, stated alternatively, a federal court does not have jurisdiction over a state law claim because of a defense that raises a federal issue. Franchise Tax Bd., 103 S. Ct. at 2846; Gully v. First Nat’l Bank, 299 U.S. 109, 57 S. Ct. 96, 81 L. Ed. 70 (1936); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). Under the well-pleaded complaint rule, federal preemption is generally a defensive issue that does not authorize removal of a case to federal court. See Powers, 719 F.2d at 764-65. [*4]
864 F.2d 1162, 1168 (5th Cir. 1989).
While it is true that when a federal cause of action completely preempts a state cause of action, any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law, that is not the case in the instant matter. See Richardson at 1169. The language of 42 U.S.C. 14502(a) states that “this chapter preempts the laws of any State to the extent that such laws are inconsistent with this chapter, except that this chapter shall not preempt any State law that provides additional protection from liability relating to volunteers or to any category of volunteers in the performance of services for a nonprofit or governmental entity.” As such, the Volunteer Protection Act does not completely preempt state law and does not give rise to a federal question.
The removing party, which is urging jurisdiction on the court, also bears the burden of demonstrating that jurisdiction is proper due to fraudulent/improper joinder. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir. 1992). The Fifth Circuit has stated:
The burden [*5] of persuasion placed upon those who cry “fraudulent joinder” is indeed a heavy one. In order to establish that an in-state defendant has been fraudulently joined, the removing party must show either that there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court; or that there has been outright fraud in the plaintiff’s pleadings of jurisdictional facts.
B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). The Fifth Circuit has reaffirmed that it “is insufficient that there be a mere theoretical possibility” of recovery; to the contrary, there must “at least be arguably a reasonable basis for predicting that state law would allow recovery in order to preclude a finding of fraudulent joinder.” Travis v. Irby, 326 F.3d 644, 648 (5th Cir. 2003)(citing Badon v. RJR Nabisco Inc., 224 F.3d 382, 386 (5th Cir. 2000)).
The defendants’ task is made considerably more difficult by the Fifth Circuit’s decisions in Smallwood v. Illinois Central Railroad Co., 385 F.3d 568 (5th Cir. 2004) and McKee v. Kansas City Southern Ry. Co., 358 F.3d 329, 336 n.2 (5th Cir. 2004). [*6] A majority of the en banc Fifth Circuit in Smallwood observed that:
Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder. That said, there are cases, hopefully few in number, in which a plaintiff has stated a claim, but has misstated or omitted discrete facts that would determine the propriety of joinder. In such cases, the district court may, in its discretion, pierce the pleadings and conduct a summary inquiry. … Discovery by the parties should not be allowed except on a tight judicial tether, sharply tailored to the question at hand, and only after a showing of its necessity.
Smallwood, 385 F.3d at 573. The Fifth Circuit in McKee similarly emphasized that the fraudulent joinder standard is more akin to a 12(b)(6) standard than the quasi-summary judgment standard which had previously been applied by many district judges in this circuit. It is accordingly plain, in light of McKee and Smallwood, that the improper/fraudulent joinder standard is far more deferential to a plaintiff’s allegations than had commonly been assumed.
With regard to defendant Ollie, the plaintiffs [*7] have alleged:
“That the Defendant, Jeanette Ollie d/b/a Shaw Athletic Youth Association, (“Ollie”), undertook and assumed a duty to supervise the minors in the group while in Jackson, Mississippi, but negligently failed to do so.”
The plaintiffs clearly allege negligent supervision against Ms. Ollie. However, under the Volunteer Protection Act, volunteers cannot be liable for simple negligence. The plaintiffs maintain that the Volunteer Protection Act does not apply to Ollie or the Shaw Athletic Youth Association because the organization has not received any federal designation as a qualifying exempt organization under 26 U.S.C. § 501(c)(3). Ms. Ollie has submitted an affidavit that avers that the “Shaw Athletic Youth Association” is a fictitious name created for the single purpose of ascribing a name to the group that would be traveling to Jackson, but that the group has not been formally organized or incorporated. The defendants contend that the Volunteer Protection Act does not require formal organization or articles of incorporation and presents competing affidavits regarding Ms. Ollie’s status as a volunteer for an amateur youth [*8] basketball team.
The term “nonprofit organization” is defined by the statute as a) any organization which is described in section 501(c)(3) of such title and is exempt from tax under section 501(a) of Title 26 and which does not practice any action which constitutes a hate crime referred to in subsection (b)(1) of the first section of the Hate Crime Statistics Act (28 U.S.C. 534); or b) any not-for-profit organization which is organized and conducted for public benefit and operated primarily for charitable, civic, educational, religious, welfare, or health purposes and which does not practice any action which constitutes a hate crime referred to in subsection (b)(1) of the first section of the Hate Crime Statistics Act. The legislative history of the act reflects that the bill covers not only “501(c)(3) organizations, but it also covers volunteers of the organizations which do good work, but do not have a tax exemption under 501(c)(3).” 143 Cong. Rec. S4915-05. The legislative history also indicates that the bill also “covers volunteers of local charities, volunteer fire departments, little leagues, veterans groups, trade associations, chambers of commerce, [*9] and other nonprofit entities that exist for charitable, religious, educational, and civic purposes.” Id.
Given the extremely broad definition of “organization” under the Volunteer Protection Act as well as the fact that the youths traveled to Jackson together as a team to engage in recreational sport, this court finds that the group constitutes an organization for the purposes of the Volunteer Protection Act. Under the Volunteer Protection Act a volunteer is not liable for simple negligence. The plaintiffs have only alleged simple negligence against defendant Ollie. Accordingly, the plaintiffs have no possibility of recovery against Ms. Ollie and the defendant has been improperly joined in the action.
The plaintiffs have also requested to amend their complaint to include Mississippi defendants Andrew Williams and Kerlin Janiver. Fed. R. Civ. Pro. 15 provides that motions to amend a complaint “shall be freely given when justice so requires.” However, when an amendment will destroy diversity jurisdiction the court must consider:(1) the extent to which the purpose of the amendment is to defeat federal jurisdiction; (2) whether the plaintiff has been dilatory in asking [*10] for an amendment; (3) whether the plaintiff will be significantly injured if amendment is not allowed; and (4) any other factors bearing on the equities. Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir.1987). The Fifth Circuit has rejected the rigid distinction between the post-removal joinder of indispensable parties under Fed. R. Civ. Pro. 19 and post-removal joinder of permissive parties under Rule 20. Rosa v. Aqualine Res., Inc., 2004 U.S. Dist. LEXIS 22130, 2004 WL 247990 *1 (N.D. Tex. 2004).
The state court complaint filed on March 16, 2006, in Bolivar County, Mississippi states: “at this time, Plaintiffs do not know the identity of John Does 1 through 5, but that said unnamed known defendants may include a person named “Johnny Murray,” and/or other agents, employees, servants or subsidiaries of La Quinta Development Partner, LP, and/or independent contractors of La Quinta Development Partners, LP.” The complaint also states: “by information and belief, the Defendants Securitas Security Services USA, Inc., (“Securitas”), and Harry J. Burnham, (“Burnham”) and a person named “Javarius” employed by Securitas, (sometimes referred to collectively herein as the [*11] “Securitas Defendants”), undertook and assumed the duties to provide security, surveillance, monitoring, and supervision for the safety and security of the guests at the La Quinta Inn.” While the plaintiffs have moved to remand, it seems unlikely that the sole purpose the plaintiffs have moved to amend their complaint is to defeat federal jurisdiction. The plaintiffs did, in fact, make allegations against unknown plaintiffs while the case was in state court. More telling, the complaint asserts allegations against an unknown “Javarius,” and the name of one of the persons they seek to add is actually Janiver.
The plaintiffs moved to amend on June 13, 2006, roughly three months after commencing this action. Three months is not an unduly dilatory amount of time to discover the names of unknown parties, particularly as discovery has not commenced in this matter.
The court must also consider whether the plaintiffs will be significantly injured if amendment is not allowed. The defendants argue that amendment is not necessary because the proposed parties were employees of Securitas at the time of Christopher’s drowning, and that they were within the scope of their employment [*12] which means that Securitas would be vicariously liable for any tortious acts committed by the proposed defendants. The plaintiffs counter by alleging that it is unknown if proposed defendants Williams and Janiver remained within the scope of employment during the time that they should have been guarding the pool area. In Hayes v. Illinois Cent. R.R., 2000 U.S. Dist. LEXIS 2405, 2000 WL 33907691 *2 (N.D. Miss. 2000), the Judge Biggers rejected the defendants’ argument that an employee was an unnecessary party since the corporation would be responsible under the doctrine of respondeat superior. The court found that the plaintiff had a right to seek recovery from the individual as well as the corporation. Id. This court also finds that the doctrine of respondeat superior does not preclude the plaintiffs from seeking recovery from the defendants individually.
As neither party has alleged any additional factors bearing on the equity of amendment, this court finds that an examination of the Hensgens factors demonstrates that amendment is proper in this instance.
Accordingly, the plaintiffs’ motion  to remand is GRANTED. The plaintiffs’ motion  to amend is also GRANTED. [*13] Defendant Ollie has been improperly joined; however, the plaintiffs are hereby granted leave to file an amended complaint naming Andrew Williams and Keith Janiver as defendants. The amended complaint must be filed within ten days of entry of this order. This case is now remanded back to the Circuit Court of Bolivar County, Mississippi.
This the 8<th> day of March, 2007.
/s/ Michael P. Mills
UNITED STATES DISTRICT JUDGE
TITLE 42. THE PUBLIC HEALTH AND WELFARE
CHAPTER 139. VOLUNTEER PROTECTION
Go to the United States Code Service Archive Directory
(a) Findings. The Congress finds and declares that–
(1) the willingness of volunteers to offer their services is deterred by the potential for liability actions against them;
(2) as a result, many nonprofit public and private organizations and governmental entities, including voluntary associations, social service agencies, educational institutions, and other civic programs, have been adversely affected by the withdrawal of volunteers from boards of directors and service in other capacities;
(3) the contribution of these programs to their communities is thereby diminished, resulting in fewer and higher cost programs than would be obtainable if volunteers were participating;
(4) because Federal funds are expended on useful and cost-effective social service programs, many of which are national in scope, depend heavily on volunteer participation, and represent some of the most successful public-private partnerships, protection of volunteerism through clarification and limitation of the personal liability risks assumed by the volunteer in connection with such participation is an appropriate subject for Federal legislation;
(5) services and goods provided by volunteers and nonprofit organizations would often otherwise be provided by private entities that operate in interstate commerce;
(6) due to high liability costs and unwarranted litigation costs, volunteers and nonprofit organizations face higher costs in purchasing insurance, through interstate insurance markets, to cover their activities; and
(7) clarifying and limiting the liability risk assumed by volunteers is an appropriate subject for Federal legislation because–
(A) of the national scope of the problems created by the legitimate fears of volunteers about frivolous, arbitrary, or capricious lawsuits;
(B) the citizens of the United States depend on, and the Federal Government expends funds on, and provides tax exemptions and other consideration to, numerous social programs that depend on the services of volunteers;
(C) it is in the interest of the Federal Government to encourage the continued operation of volunteer service organizations and contributions of volunteers because the Federal Government lacks the capacity to carry out all of the services provided by such organizations and volunteers; and
(D) (i) liability reform for volunteers, will promote the free flow of goods and services, lessen burdens on interstate commerce and uphold constitutionally protected due process rights; and
(ii) therefore, liability reform is an appropriate use of the powers contained in article 1, section 8, clause 3 of the United States Constitution, and the fourteenth amendment to the United States Constitution.
(b) Purpose. The purpose of this Act [42 USCS §§ 14501 et seq.] is to promote the interests of social service program beneficiaries and taxpayers and to sustain the availability of programs, nonprofit organizations, and governmental entities that depend on volunteer contributions by reforming the laws to provide certain protections from liability abuses related to volunteers serving nonprofit organizations and governmental entities.
(a) Preemption. This Act [42 USCS §§ 14501 et seq.] preempts the laws of any State to the extent that such laws are inconsistent with this Act [42 USCS §§ 14501 et seq.], except that this Act [42 USCS §§ 14501 et seq.] shall not preempt any State law that provides additional protection from liability relating to volunteers or to any category of volunteers in the performance of services for a nonprofit organization or governmental entity.
(b) Election of State regarding nonapplicability. This Act [42 USCS §§ 14501 et seq.] shall not apply to any civil action in a State court against a volunteer in which all parties are citizens of the State if such State enacts a statute in accordance with State requirements for enacting legislation–
(1) citing the authority of this subsection;
(2) declaring the election of such State that this Act [42 USCS §§ 14501 et seq.] shall not apply, as of a date certain, to such civil action in the State; and
(3) containing no other provisions.
(a) Liability protection for volunteers. Except as provided in subsections (b) and (d), no volunteer of a nonprofit organization or governmental entity shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization or entity if–
(1) the volunteer was acting within the scope of the volunteer’s responsibilities in the nonprofit organization or governmental entity at the time of the act or omission;
(2) if appropriate or required, the volunteer was properly licensed, certified, or authorized by the appropriate authorities for the activities or practice in the State in which the harm occurred, where the activities were or practice was undertaken within the scope of the volunteer’s responsibilities in the nonprofit organization or governmental entity;
(3) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer; and
(4) the harm was not caused by the volunteer operating a motor vehicle, vessel, aircraft, or other vehicle for which the State requires the operator or the owner of the vehicle, craft, or vessel to–
(A) possess an operator’s license; or
(B) maintain insurance.
(b) Concerning responsibility of volunteers to organizations and entities. Nothing in this section shall be construed to affect any civil action brought by any nonprofit organization or any governmental entity against any volunteer of such organization or entity.
(c) No effect on liability of organization or entity. Nothing in this section shall be construed to affect the liability of any nonprofit organization or governmental entity with respect to harm caused to any person.
(d) Exceptions to volunteer liability protection. If the laws of a State limit volunteer liability subject to one or more of the following conditions, such conditions shall not be construed as inconsistent with this section:
(1) A State law that requires a nonprofit organization or governmental entity to adhere to risk management procedures, including mandatory training of volunteers.
(2) A State law that makes the organization or entity liable for the acts or omissions of its volunteers to the same extent as an employer is liable for the acts or omissions of its employees.
(3) A State law that makes a limitation of liability inapplicable if the civil action was brought by an officer of a State or local government pursuant to State or local law.
(4) A State law that makes a limitation of liability applicable only if the nonprofit organization or governmental entity provides a financially secure source of recovery for individuals who suffer harm as a result of actions taken by a volunteer on behalf of the organization or entity. A financially secure source of recovery may be an insurance policy within specified limits, comparable coverage from a risk pooling mechanism, equivalent assets, or alternative arrangements that satisfy the State that the organization or entity will be able to pay for losses up to a specified amount. Separate standards for different types of liability exposure may be specified.
(e) Limitation on punitive damages based on the actions of volunteers.
(1) General rule. Punitive damages may not be awarded against a volunteer in an action brought for harm based on the action of a volunteer acting within the scope of the volunteer’s responsibilities to a nonprofit organization or governmental entity unless the claimant establishes by clear and convincing evidence that the harm was proximately caused by an action of such volunteer which constitutes willful or criminal misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed.
(2) Construction. Paragraph (1) does not create a cause of action for punitive damages and does not preempt or supersede any Federal or State law to the extent that such law would further limit the award of punitive damages.
(f) Exceptions to limitations on liability.
(1) In general. The limitations on the liability of a volunteer under this Act [42 USCS §§ 14501 et seq.] shall not apply to any misconduct that–
(A) constitutes a crime of violence (as that term is defined in section 16 of title 18, United States Code) or act of international terrorism (as that term is defined in section 2331 of title 18) for which the defendant has been convicted in any court;
(B) constitutes a hate crime (as that term is used in the Hate Crime Statistics Act (28 U.S.C. 534 note));
(C) involves a sexual offense, as defined by applicable State law, for which the defendant has been convicted in any court;
(D) involves misconduct for which the defendant has been found to have violated a Federal or State civil rights law; or
(E) where the defendant was under the influence (as determined pursuant to applicable State law) of intoxicating alcohol or any drug at the time of the misconduct.
(2) Rule of construction. Nothing in this subsection shall be construed to effect subsection (a)(3) or (e).
(a) General rule. In any civil action against a volunteer, based on an action of a volunteer acting within the scope of the volunteer’s responsibilities to a nonprofit organization or governmental entity, the liability of the volunteer for noneconomic loss shall be determined in accordance with subsection (b).
(b) Amount of liability.
(1) In general. Each defendant who is a volunteer, shall be liable only for the amount of noneconomic loss allocated to that defendant in direct proportion to the percentage of responsibility of that defendant (determined in accordance with paragraph (2)) for the harm to the claimant with respect to which that defendant is liable. The court shall render a separate judgment against each defendant in an amount determined pursuant to the preceding sentence.
(2) Percentage of responsibility. For purposes of determining the amount of noneconomic loss allocated to a defend-ant who is a volunteer under this section, the trier of fact shall determine the percentage of responsibility of that defendant for the claimant’s harm.
For purposes of this Act [42 USCS §§ 14501 et seq.]:
(1) Economic loss. The term “economic loss” means any pecuniary loss resulting from harm (including the loss of earnings or other benefits related to employment, medical expense loss, replacement services loss, loss due to death, burial costs, and loss of business or employment opportunities) to the extent recovery for such loss is allowed under applicable State law.
(2) Harm. The term “harm” includes physical, nonphysical, economic, and noneconomic losses.
(3) Noneconomic losses. The term “noneconomic losses” means losses for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium (other than loss of domestic service), hedonic damages, injury to reputation and all other nonpecuniary losses of any kind or nature.
(4) Nonprofit organization. The term “nonprofit organization” means–
(A) any organization which is described in section 501(c)(3) of the Internal Revenue Code of 1986 [26 USCS § 501(c)(3)] and exempt from tax under section 501(a) of such Code [26 USCS § 501(a)] and which does not practice any action which constitutes a hate crime referred to in subsection (b)(1) of the first section of the Hate Crime Statistics Act (28 U.S.C. 534 note); or
(B) any not-for-profit organization which is organized and conducted for public benefit and operated primarily for charitable, civic, educational, religious, welfare, or health purposes and which does not practice any action which constitutes a hate crime referred to in subsection (b)(1) of the first section of the Hate Crime Statistics Act (28 U.S.C. 534 note).
(5) State. The term “State” means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Northern Mariana Islands, any other territory or possession of the United States, or any political subdivision of any such State, territory, or possession.
(6) Volunteer. The term “volunteer” means an individual performing services for a nonprofit organization or a governmental entity who does not receive–
(A) compensation (other than reasonable reimbursement or allowance for expenses actually incurred); or
(B) any other thing of value in lieu of compensation, in excess of $ 500 per year, and such term includes a volunteer serving as a director, officer, trustee, or direct service volunteer.
Chapple, Et Al., v. Ultrafit USA, Inc., Et Al., 2002 Ohio 1292; 2002 Ohio App. LEXIS 1366
Roger Chapple, Et Al., Plaintiffs-Appellants -vs- Ultrafit Usa, Inc., Et Al., Defendants-Appellees
Case No. 01-CAE-08037
COURT OF APPEALS OF OHIO, FIFTH APPELLATE DISTRICT, DELAWARE COUNTY
2002 Ohio 1292; 2002 Ohio App. LEXIS 1366
March 18, 2002, Date of Judgment Entry
PRIOR HISTORY: [*1] CHARACTER OF PROCEEDING: Appeal from the Delaware County, Common Pleas Court, Case No. 00-CVC-06-270.
DISPOSITION: Trial court’s grant of defendants-appellees’ motion for summary judgment was affirmed.
COUNSEL: For Plaintiffs-Appellants: JOHN A. YAKLEVICH, Columbus, Ohio.
For Defendants-Appellees: MARK PETRUCCI, Columbus, Ohio.
JUDGES: Hon. Sheila G. Farmer, P.J., Hon. Julie A. Edwards, J., Hon. John F. Boggins, J. Boggins, J., Farmer, P.J., and Edwards, J. concur.
OPINION BY: John F. Boggins
This is an appeal from a Summary Judgment ruling of the Delaware County, Court of Common Pleas.
STATEMENT OF THE FACTS AND CASE
The facts underlying this case are that appellant Roger Chapple was an employee of the Ohio Department of Natural Resources, Division of Parks and Recreation (O.D.N.R.). Appellee Ultrafit, Inc. through its president, appellee Jeffrey Sheard is engaged in organizing and promoting events such as triathlons. One of these contests was set for June 28, 1998 at Alum Creek State Park. Appellees had made application to the O.D.N.R. to use the facilities, including employees of O.D.N.R. on June 28, 1998 to conduct a triathlon. Appellant signed up per O.D.N.R. procedure to work the event. John Williamson, crew leader for O.D.N.R. set the work schedule which [*2] included appellant’s duties. (Appellant’s deposition at p.14). Appellant had no contact with appellees on 6/28/98 prior to his injury. Due to severe weather, the triathlon’s starting time was delayed until about 9:30a.m. when the weather had improved. Due to the late start, the race was shortened. Near the end of the shortened event, appellant Roger Chapple was rolling a hose on an abandoned leg of the race and was struck by lightning and injured. Appellant, Joyce Chapple, spouse of Roger Chapple is joined on a loss of consortium basis. The issues are whether appellees owed a duty to Roger Chapple, was he an employee of O.D.N.R. or other status, and if a duty of care existed, did it require a postponement or cancellation of the event. Appellees filed a Motion for Summary Judgment on April 11, 2000 which was set for a non-oral hearing with appellants memorandum in opposition filed May 8, 2000, and a reply subsequently filed. After careful consideration of all materials available to the trial court, it sustained appellee’s motion.
ASSIGNMENT OF ERROR
The sole Assignment of Error is:
THE TRIAL COURT ERRED IN RENDERING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS-APPELLEES WHERE [*3] THE DEFENDANT-APPELLEES OWED A DUTY OF CARE TO PLAINTIFFS-APPELLANTS AND GENUINE ISSUES OF FACT EXISTED CONCERNING DEFENDANTS-APPELLEES’ BREACH OF THAT DUTY.
Civ.R. 56(C) states, in pertinent part:
[HN1] Summary Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law…. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor.
[HN2] Pursuant to the above rule, a trial court may not enter a summary judgment if it appears a material fact is genuinely disputed. [HN3] In order to survive a motion for summary judgment, the non-moving party must produce evidence on any issue [*4] to which that party bears the burden of production at trial. Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St. 3d 108, 570 N.E.2d 1095, citing Celotex v. Catrett (1986), 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548. [HN4] Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St. 3d 35, 36, 506 N.E.2d 212. I. As to the Assignment of Error, even though appellants’ Complaint asserts negligence, gross negligence and wanton and wilful misconduct but his Brief relies solely on negligence. (Appellant’s brief at p. 8). Appellant acknowledges that no Ohio case strictly fits the fact pattern in the case sub judice. Other than the cases citing basic propositions of negligence law, none of the cases cited by either party to this appeal are particularly in point, therefore we must, as the trial court did, review the facts which would support or refute the decision from which the appeal is taken. The deposition of appellant, Roger Chapple, indicates that the weather had cleared by the delayed starting time and that [*5] lightning flashes were to the north of the park. (Appellant’s deposition at p. 26). In the reply brief appellant’s counsel attempts to blame a memory loss for the inability of Roger Chapple to remember that lightning was flashing in his vicinity prior to being struck. (Appellant’s reply brief at p. 2). This conclusion is not supported by appellant’s deposition which demonstrates a clear memory except for short term loss. (Appellant’s deposition at p. 46). The essential issue is whether alleged facts were presented to the trial court indicating a breach of duty of appellees to appellants. [HN5] The existence of a duty is an essential element of negligence action. Grover v. Eli Lilly and Company (1992), 63 Ohio St. 3d 756, 591 N.E.2d 696. [HN6] The foreseeability of injury is obviously a factor to consider under appropriate circumstances. An injury is foreseeable if a reasonably prudent person, under like or similar circumstance knew or should have known that an act or nonperformance of an act was likely to result in harm. Simmers v. Bentley Construction Co. (1992), 64 Ohio St. 3d 642, 597 N.E.2d 504. Here, appellants assert that, because appellee had authority to postpone [*6] or cancel the race, that a duty to appellant existed. The defect in this argument is that the weather had cleared considerably at starting time. Lightning flashes were to the north. Appellant did not believe that danger was present. (Appellant’s deposition at p. 47). Also, if such became a concern, he believed policy dictated that he go to a vehicle. (Appellant’s deposition at p. 40-41). Appellant argues that severe electrical storm activity was present, but his deposition does not support this conclusion. Appellee has reviewed certain theories and applicable cases such as injury to subcontractors, and inherently dangerous activity. These are not applicable under the facts and the appellant being a subcontractor has not been argued. The only aspect of appellant’s position which is close to the decisions in this line of cited cases is one of control by appellee. The control asserted is that appellant was included with the use of the facilities and appellees retained the exclusive ability to cancel or postpone the triathlon. However, no direction occurred. It can only be argued that appellee possessed a general authority to cancel or postpone. In this narrow regard the language of Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103, 113 N.E.2d 629 [*7] is pertinent even though, it is a subcontractor case. It holds that active participation by the contractor as opposed to a general supervisory role is required. The facts in the case sub judice indicate that Roger Chapple chose to work outside and felt that no danger existed. (Appellant’s deposition at p. 41-42). Roger Chapple believed that park rules provided that he wait in a vehicle if a weather danger existed, (Appellant’s deposition at p. 40-41) even though Mr. Hart disputes the existence of such a policy in his deposition. As stated before, Roger Chapple had no contact with appellees and nothing in any deposition supports direction by appellees. It is asserted that lightning was present during the race and the affidavit of Mr. Williamson is relied on for this assertion. However, such affidavit also places the lightning to the north of the race event. It is also stated that appellees had no access to weather information. However, Mr. Sheard’s deposition indicated that amateur radio operators were at the race and would provide such data if such need arose. (Sheard deposition at p. 38). The facts which the trial court had available is that Mr. Chapple was employed by and paid by [*8] O.D.N.R. His worker’s compensation claim was filed as such rather than as a loaned employee to appellees. It is accurate, however, that [HN7] an employee may institute a third-party negligence action even though a worker’s compensation claim has been filed. George v. City of Youngstown (1942), 139 Ohio St. 591. The essence of appellant’s claim is that appellee had the authority to postpone or cancel the race and that the race was commenced under dangerous weather conditions. We must disagree with the Assignment of Error and conclude, as the trial court did, that there is insufficient support for the existence of a duty, control of the activities of appellant, nor negligence of appellee.
We therefore affirm the decision of the trial court.
By: Boggins, J. Farmer, P.J. and Edwards, J. concur.
Legally a complicated issue with no clear answer on how to prevent this issue in the future
Plaintiff: Roger Chapple & Joyce Chapple
Defendant: Appellee Ultrafit, Inc., Jeffrey Sheard
Plaintiff Claims: negligence, loss of consortium
Defendant Defenses: no duty
Holding: for the defendant
I would guess this is a subrogation case. A subrogation claim is based upon the subrogation clause in an insurance policy. This clause gives your insurance company that pays a claim on your behalf to sue someone in your name to recover what the insurance company paid. If you were hurt at work, and worker’s compensation paid a claim on your behalf, worker’s compensation could sue to recover for the damages WC paid.
However, that is just a guess in this case.
This is an interesting fact situation. The plaintiff was an employee of the Ohio Department of Natural Resources, Division of Parks and Recreation, (ODNR). The defendant was running a triathlon in one of Ohio’s state parks. The plaintiff signed up to work the triathlon through normal procedures with ODNR and the park.
The plaintiff had no interaction with the defendant prior to the accident. The triathlon was delayed for a while because of weather issues. Eventually, the triathlon started after a delay. The plaintiff was in the park, rolling a hose in an area where a leg of the race had been when he was struck by lightning. The plaintiff and his spouse sued for their injuries.
The issues are whether appellees owed a duty to Roger Chapple, was he an employee of O.D.N.R. or other status, and if a duty of care existed, did it require a postponement or cancellation of the event.
Summary of the case
The court first looked at many factual issues that were pled at the appellate level that were in conflict with the deposition of the plaintiff. (Plaintiff on appeal said one thing and during his deposition said something else.) Although the court made note of those issues to deny arguments of the plaintiff, no other action was taken.
The issue was whether the defendant was negligent. The negligence argument was centered on whether the defendant owed a duty to the plaintiff. The first part of that argument was whether the injury was foreseeable.
The existence of a duty is an essential element of negligence action. The foreseeability of injury is obviously a factor to consider under appropriate circumstances. An injury is foreseeable if a reasonably prudent person, under like or similar circumstance knew or should have known that an act or nonperformance of an act was likely to result in harm. Here, appellants assert that, because appellee had authority to postpone or cancel the race, that a duty to appellant existed. The defect in this argument is that the weather had cleared considerably at starting time. Lightning flashes were to the north. Appellant did not believe that danger was present.
However, there were a few issues with that argument. The plaintiff knew that during lightning, ODNR had a policy that he was to return to his vehicle. The argument made by the defendant was, there was no obvious lightning around the plaintiff, the lightning had all moved to the north. The final issue was who had control to cancel the event. The plaintiff argued that it was solely under the control of the defendant.
The control asserted is that appellant was included with the use of the facilities, and appellees retained the exclusive ability to cancel or postpone the triathlon. However, no direction occurred. It can only be argued that appellee possessed a general authority to cancel or postpone.
None of those arguments were persuasive with the court.
The facts in the case sub judice indicate that Roger Chapple [plaintiff] chose to work outside and felt that no danger existed. Roger Chapple believed that park rules provided that he waits in a vehicle if a weather danger existed, even though Mr. Hart [unknown person] disputes the existence of such a policy in his deposition. As stated before, Roger Chapple had no contact with appellees and nothing in any deposition supports direction by appellees.
Because the plaintiff was an employee of ODNR and not of the race organization, it was clear that the liability for the injury had to be ODNRs. Control of the event was vested with several groups, and the plaintiff was still under the control of ODNR. “We must disagree with the Assignment of Error and conclude, as the trial court did, that there is insufficient support for the existence of a duty, control of the activities of appellant, nor negligence of appellee.”
So Now What?
If you are organizing events, you should always clarify who is responsible for what and who will ensure what. Here, clarification that ODNR is responsible for ODNR’s employees might have eliminated this issue.
However, who else would ever be in control of someone else’s employee is interesting. If someone is wearing a uniform, that person is the responsibility of the person issuing the uniform.
Another option is to always have volunteers sign a release. All volunteers should sign a release just so volunteers do not sue other volunteers.
This is an interesting case and possible ODNR procedures, and paperwork would not allow you to clarify the liability issues further. Government paperwork is difficult to modify. Sometimes, you just have to rely on insurance.
What do you think? Leave a comment.
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Parental control: should you, are you accepting responsibility for kids and when you should or can you not.Posted: July 30, 2013
Once you accept responsibility, you are opening yourself up for any problem the minor may encounter.
This scenario came to me, and my reaction was the exact opposite of the person telling me about it.
Child is enrolled in a program. One parent enrolled the child. The other parent is making rules for how the child will act and what the child will wear (safety gear) while attending the program.
It is a community program, not away from home; it is something you drop your child off should participate in.
The one parent sends a letter to the program stating they expect the program to make sure the child wears the specific equipment. It is optional for all other participants to wear the specific equipment.
How the program responds will determine who is going to pay the child’s medical bills. Basically, the parent created a standard that if accepted by the program creates a duty upon the program.
I would have sent a letter to both parents that states:
It is your kid; we are not a babysitting service. If you want to make sure your child wears the gear, then you need to be here making sure your child is wearing the gear. You are allowed, in fact, encouraged to attend all practices, programs and meetings. If your child is here, you better be here too.
The other person’s response.
They’d better made sure the kid wears the gear.
The legal issue and concern?
The program is run by volunteers. One parent is saying to volunteers if you do not do what I say I am going to sue you if my child is hurt. The program has hundreds of kids, seriously hundreds of kids some nights, and a few volunteers, (when were there ever enough volunteers.)
The parent is making a duty that the program can either accept or not accept and if they do nothing they are accepting the standard created by the program. “I am not responsible for your child.”
Will this create a duty on the part of every other child in the program?
We are not legally responsible for your child; you are. (See A Parent (or Guardian) is still in control of a child, no matter what the volunteer may want, http://rec-law.us/zN0jcl). The program has no responsibility if the parent is present. Why accept the possibility that you cannot control a teenager and therefore, will get sued because of it?
Why Volunteer and Put Up with Crap like This!
What type of parent are you that you can’t take the time to spend time with your child but threaten litigation if your child gets hurt. “Here you take your time to take care of my kid and I’m going to sue you over it.”
Actually, I just would have thrown the kid out of the program. No program, run by volunteers for other people’s kids need this.
Kid programs are not where parents drop off kids and go on with their lives. Kid programs are where families work to help the community, and the kid to grow, learn and expand their horizons. Kids programs are not so parents get a break from their kids. Youth programs are for youth and that does not mean that those adults who take time away from their family should be subject to suit by parents who won’t take the time.
If you volunteer your time and someone who does not volunteer puts a burden on you to watch their kid how would you feel?
If you are volunteering your time, and some parent comes to you and says you have to do things this way, hand them the clipboard and whistle and walk away. It is not worth it.
Other articles about the legal issues of Volunteers:
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It is also hard to be liable for not watching where you are walking
This case stems from injuries received when a volunteer was setting up a tent and fell over one of the guy lines for the tent.
The plaintiff was a volunteer and with other volunteers was setting up a large tent at a Scout Camp. The camp was owned by the Los Angeles Area Council, Inc. which was granted a charter by the Boy Scouts of America to offer the Scouting program to local youth. The tent was a large military wall tent, similar to what you would see on reruns of M*A*S*H.
While setting up the tent, another volunteer asked the plaintiff to get more tent stakes. She walked around the tent, picked up more stakes and while walking back tripped over one of the guy lines holding up the tent. None of the guy lines had been marked with flags or markers to indicate there was a line there and the accident occurred around 7:00 Pm in July. (None are marked in the M*A*S*H reruns either.) The factual issue became whether or not markers or flags should have been used to identify the guy-lines on the tents.
The court went through and clearly identified factual issues the court felt were important.
Moore had not set up the specific pole, rope or stake upon which she tripped.
The ropes coming off the tent were at varying angles and pitches. The ropes varied in length, de-pending upon location. There were no flags or markers on the ropes.
Before this date, Moore had never been involved in setting up or taking down this tent or this type of tent. However, in years past, Moore had used rope or flags to mark the guy ropes on this tent to make the ropes more visible.
Before Moore fell, neither Moore nor any of the other adult volunteers saw anything they considered unsafe or dangerous.
In the past, some of the adult volunteers had used markers (e.g., cloth or fluorescent plastic tape) to make ropes more visible in scout camps and in non-scout camping situations. In prior years, this tent had been used in the Boy Scout camp, and flags had been used to mark the ropes. It is unclear if markers were used each time the tent was used.
The plaintiff argued the BSA did not have a policy of marking guy lines with markers or flags.
The plaintiff sued for premises liability and negligence. The premises liability claim was based on negligently setting up a tent without guy lines and the negligence claim for not using reasonable care when setting up tents by not using markers on guy-lines.
The Boy Scouts filed a motion for summary judgment based on the fact there was no triable issues, no real legal claims, which was granted and the plaintiff appealed.
The plaintiff’s main arguments were supported by its expert an ergonomist who was a human factors and safety consultant. (This has me confused too, as to why an ergonomist (whatever) has any knowledge of setting up a tent.) The ergonomist said that that groups in Virginia, Australia and Louisiana has policies on markers on tent lines.
The court first looked at the premises liability claim. A premises liability claim is based on a dangerous condition on land. The owner of land is liable for “only for hazardous conditions of which the possessor had actual or constructive knowledge.” The tent was not part of the land so there was no legal basis for a premises liability claim.
The negligence claim was also dismissed by the court. Since the tent was being set up by volunteers, there was no proof that the BSA created the dangerous condition or was aware that a dangerous condition existed. The BSA could not breach a duty of care when the actions which created a dangerous condition were not those of the BSA. Nor does the lack of a policy create a dangerous condition on land. The plaintiff’s argument the court reasoned, where closer to tent issues not land issues.
So Now What?
The legal issues are as stretched in this case as you can get in my opinion. You are setting up a tent by setting up guy lines; you can’t sue when you trip over a guy line.
The claims were incorrect for the facts. The court looked at the issues and could not find any legal connection between the facts, the claims and the law.
However, that does not mean that not watching where you walk might not lead to litigation at some future date that does hold some water.
You can write policies till there are no more trees. In doing so, you’ll probably sink some other group who is trying to save trees. Better to educate than kill a tree. Train your volunteers, prove you trained them, and then explain how the organization they are volunteering for cannot afford lawsuits, stupid ones or regular ones. By that I mean include litigation training; you can’t sue us, in the training you provide.
Explain how it is their job to protect each other as well as to protect the organization. Tell them and prove you told them that you cannot identify all of the risks they may encounter.
You might even have them sign a release.
Plaintiff: Josephine Moore
Defendant: Boy Scouts of America Los Angeles Area Council, Inc.
Plaintiff Claims: Premises Liability and Negligence
Defendant Defenses: not triable issues of fact, no negligence
Holding: Trial court dismissal was affirmed
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Josephine Moore, Plaintiff and Appellant, v. Boy Scouts of America Los Angeles Area Council, Inc., Defendant and Respondent.
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE
2004 Cal. App. Unpub. LEXIS 11180
December 10, 2004, Filed
NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBIT COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 977.
PRIOR HISTORY: APPEAL from a judgment of the Superior Court of Los Angeles County, No. NC040331. Elizabeth Allen White, Judge.
CORE TERMS: scout, tent, rope, volunteer, flag, summary judgment, scout camp, causes of action, hazard, marker, adult, guy ropes, feet, dangerous condition, declaration, triable, conspicuity, warning, premises liability, issues of fact, negligently, military, donated, wall tent, lighting, tripped, visible, manual, pole, trip
COUNSEL: Sedgwick, Detert, Moran & Arnold, Thomas A. Delaney and Steven S. Streger, for Defendant and Respondent.
Desjardins Kelly and Warren D. Kelly, for Plaintiff and Appellant.
JUDGES: ALDRICH, J.; CROSKEY, Acting P. J., KITCHING, J. concurred.
OPINION BY: ALDRICH
Plaintiff and appellant Josephine Moore (Moore) was setting up a tent for a scout camp site when she tripped over a rope that was securing the tent. Moore appeals from a summary judgment entered in favor of defendant and respondent Boy Scouts of America Los Angeles Area Council. Inc. (the Boy Scouts). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Following the usual rules on appeal, we construe the facts in the light most favorable [*2] to Moore, the party who opposed the motion for summary judgment. (Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1836.)
On July 8, 2001, Moore was setting up a scout camp site. She and other adult volunteers were erecting a wall tent that was secured by poles and ropes. No employee of the Boy Scouts was involved in setting up the tent. The Boy Scouts did not own the tent. The rectangular tent was oblong, about 24 feet long by 16 feet wide. The poles used to hold up the tent were 6 feet long. Beige ropes were used to secure the tent to the ground and to keep the tent upright.
At about 7:00 p.m., the volunteers had been setting up the tent for 30 to 60 minutes. The tent was about four or five feet from a picnic table. One of the other adults asked Moore to retrieve additional stakes from the opposite side of the tent. Moore walked around the tent and picked-up six or seven stakes. Moore walked near the tent, toward the adult who had requested the stakes. In doing so, Moore tripped over one of the ropes that had already been staked into the ground. The stake holding the rope was two to five feet from the tent and two to five feet from the picnic table.
[*3] Moore had not set up the specific pole, rope or stake upon which she tripped.
The ropes coming off the tent were at varying angles and pitches. The ropes varied in length, depending upon location. There were no flags or markers on the ropes.
Before this date, Moore had never been involved in setting up or taking down this tent or this type of tent. However, in years past, Moore had used rope or flags to mark the guy ropes on this tent to make the ropes more visible.
During the time the tent was being set up, Moore was aware that some guy ropes were already in place, extending out from corners of the tent.
Before Moore fell, neither Moore nor any of the other adult volunteers saw anything they considered unsafe or dangerous.
In the past, some of the adult volunteers had used markers (e.g., cloth or fluorescent plastic tape) to make ropes more visible in scout camps and in non-scout camping situations. In prior years, this tent had been used in the Boy Scout camp, and flags had been used to mark the ropes. It is unclear if markers were used each time the tent was used.
The Boy Scout’s manual did not address rope safety and did not instruct that markers were to be used, although [*4] some believed marking the ropes made good sense. The photograph of a wall tent in the manual appeared to have markers on the ropes.
At one Boy Scout volunteer training session held a few years prior to this accident, volunteers were told to flag tent ropes so no one would trip. The Boy Scouts had no documents relating to the use of warnings on ropes.
The scout camp is planned by volunteers. The Boy Scout district executive, Jim McCarthy, attends the planning meetings.
Moore sued the Boy Scouts. The complaint stated two causes of action.
In the first cause of action for premises liability, Moore alleged that the Boy Scouts “negligently maintained, managed, controlled, and operated the Scout Camp, in that the guy ropes attached to a certain tent in the Scout Camp were unmarked with flags, or with anything, and were obscured from view without some kind of flag, marker, or other warning, owing to their color, size and geometry, location, time of day, and other factors, which [the Boy Scouts] knew, or in the exercise of reasonable care should have known, constituted a dangerous condition and unreasonable risk of harm of which [Moore] was at all times . . . [*5] unaware. [The Boy Scouts] negligently failed to take steps to either make the condition safe or warn [Moore] of the dangerous condition, all of which caused [Moore] to trip and fall on one of the guy ropes, and to suffer the injuries and damages hereinafter described.”
In the second cause of action for negligence, Moore alleged that the Boy Scouts failed to “use reasonable care in the construction, maintenance, management, and control of the Scout Camp, including but not limited to placing flags or some other kind of marker or warning to identify and call attention to the presence and location of the guy ropes surrounding the tent tarp. [P] . . . [The Boy Scouts] knew or should have known that the construction of the Scout Camp was likely to create during the construction a risk of harm to those who were working on and around the Scout Camp unless special precautions were taken, in that, among other things, guy ropes, which were obscured from view . . . would be emanating from the tent, unmarked and unguarded, in a fashion that constituted a hazard to persons, including [Moore].”
The Boys Scouts brought a motion for summary judgment.
In opposing the motion, Moore submitted [*6] the declaration of psychologist Ilene B. Zackowitz, Ph.D. Dr. Zackowitz declared the following. She was a human factors and safety consultant and a certified professional ergonomist. 1 She had reviewed the discovery in this case. “When wall tents that are secured with ropes and stakes are used, it is foreseeable that the low conspicuity of the ropes may present a tripping hazard. Despite this foreseeable hazard, [the Boy Scouts have] no stated policy or procedure that addresses the hazard, namely using flags to increase the conspicuity of guy ropes, in the [Scout] Camping merit badge book or the Scouts ‘Guide to Safe Scouting.’ ” “Other Scout Councils recognize the hazard and have policies in place to address the hazard[, such as a troop in Georgetown, Virginia, the Scout Association of Australia, and the Southeast Louisiana Council].” “A stated policy of securing conspicuous flags to the ropes as they are secured to the ground (as opposed to waiting until the entire tent is erected) would greatly increase the conspicuity of the anchoring ropes.” “The incident occurred at dusk such that lighting conditions and contrast were reduced. Under ideal lighting conditions, a rope and [*7] stake would have low contrast with the dirt covered ground surface. . . . There were no visual cues that the hazard was present. . . . A flag on the rope would have provided contrast and would have called attention to the hazard.”
1 Dr. Zackowitz’s curriculum vitae includes information that she serves as a forensic consultant for personal injury accidents, including slips, trips, missteps, and falls, the effectiveness of warnings, visibility, conspicuity, and lighting.
The trial court granted the summary judgment motion. In the order granting summary judgment, the trial court found there were no triable issues of fact because: (1) there was no evidence of a dangerous condition and Dr. Zackowitz’s declaration was not admissible on the issue; (2) the Boy Scouts had no notice of the condition as the only ones present were volunteers, who were not agents of the Boy Scouts; and (3) the condition was open and notorious.
Judgment was entered against Moore, from which she appealed.
1. Standard [*8] of review upon a motion for summary judgment.
Following the granting of a summary judgment, we review the moving papers independently to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. (Jackson v. Ryder Truck Rental, Inc., supra, 16 Cal.App.4th at p. 1837.)
A defendant who brings a motion for summary judgment asserting that the plaintiff cannot state a cause of action need only address the theories advanced in the complaint, as the complaint frames the issues. (United States Golf Assn. v. Arroyo Software Corp. (1999) 69 Cal.App.4th 607, 623; Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 886-887; FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381, 282 Cal. Rptr. 508.) “A party cannot successfully resist summary judgment on a theory not pleaded. [Citation.]” (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.)
2. Moore has not demonstrated a triable issue of fact with regard to the two theories presented.
Moore stated two causes of action – premises [*9] liability and negligence. She contends there are triable issues of fact with regard to these causes of action. This contention is unpersuasive.
A cause of action for premises liability generally is based upon a dangerous condition on land. (Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406, fn. 1.) The possessor of land is liable only for hazardous conditions of which the possessor had actual or constructive knowledge. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1203.) Here, the tent was set up by volunteers, who were not the agents of the Boy Scouts. (Young v. Boy Scouts of America (1935) 9 Cal. App. 2d 760, 765 [adult volunteers are not agents of local councils].) There is no evidence the Boy Scouts knew the tent was being set up. Thus, the Boy Scouts neither created the “dangerous” condition nor were aware that it existed.
With regard to the negligence cause of action, Moore alleged that the Boy Scouts negligently constructed, maintained, managed, and controlled the camp. However, the undisputed facts were that the volunteers undertook all of these activities. Thus, Moore failed to establish that the [*10] Boy Scouts breached its duty to her. (Cf. Ortega v. Kmart Corp., supra, 26 Cal.4th at p. 1205 [negligence requires duty, breach, causation, damages].)
Moore argues that notice of the condition is irrelevant as liability “is not based on acts of the volunteers who erected the tent, but on the policy (or lack thereof) of the [Boy Scouts] relating to tent safety, as well as the fact that [the Boy Scouts] provided a tent with inconspicuous ropes and no flags.” These arguments are based primarily upon (1) statements made by some of the volunteers who said that the past they had marked the ropes to make them more visible, (2) comments by Moore’s expert (Dr. Zackowitz), and (3) Dr. Zackowitz’s reference to other scout manuals.
However, Moore’s complaint, which framed the issues, did not alleged that the Boy Scouts lacked a policy with regard to rope safety, nor did it allege that the Boy Scouts were negligent in supplying a defective tent. (Cf. FNS Mortgage Service Corp. v. Pacific General Group, Inc. (1994) 24 Cal.App.4th 1564, 1572 [discussing negligent undertaking].)
Further, there is an evidentiary problem with Moore’s argument [*11] relating to the Boy Scouts supplying the tent. In Moore’s appellate brief, she does not provide a citation to the record to support the statement that the tent had been supplied by the Boy Scouts or that it had been donated to the Boy Scouts by the military. (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1378-1379 [parties have obligation to provide proper citations to record].) 2 In Moore’s separate statement of disputed and undisputed material facts, Moore also fails to establish that the tent had been supplied by the Boy Scouts, or that it had been donated to the Boy Scouts by the military. Additionally, Moore testified in her deposition that she did not believe that the Boy Scouts owned the tent. Dr. Zackowitz did state in her declaration that the tent had been donated to the Boy Scouts by the military. However, Dr. Zackowitz does not identify the source of this information and therefore this testimony lacks foundation.
2 In the introduction to her brief, Moore points to the Clerk’s Transcript, pages 226 to 264 for this factual assertion. This is an insufficient citation. (Grant-Burton v. Covenant Care, Inc., supra, 99 Cal.App.4th at p. 1379 [appropriate reference to records must include exact page citations].)
[*12] Summary judgment was properly granted in favor of the Boy Scouts. 3
3 In light of our conclusion, we need not address whether the trial court made evidentiary errors with regard to Dr. Zackowitz’s declaration.
The judgment is affirmed. Moore is to pay all costs on appeal.
CROSKEY, Acting P. J.
If you want your kids to play sports, enjoy the outdoors, and have fun, you have to accept the fact your kid will suffer an injury and some of those injuries are fatal.
If parents continue to sue volunteers and programs for their kids injuries, there are not going to be programs for kids. The facts of life say that the cost of providing a program for a kid by volunteers is going to reach a maximum, and those programs will end.
Most programs provide insurance for their volunteers. No matter how the coverage is provided, the volunteers own homeowner’s policy is the primary general liability policy. Eventually, when applying for homeowners insurance, there may be a question about volunteer activities. There is already a question about whether or not you have been sued in the past.
What about the time issues for a new volunteer. You want to be an assistant coach for your kids and the neighbor kids. You go to the first meeting and find out you have to take 20 hours of training before you can attend the first practice and several more hours after that. Is it worth the effort?
Think about the effects on our economy. No more free, after school, babysitting. Parents will have to trust their kids at home by themselves rather than sending them off to a volunteer.
Better, programs are going to require parents to be at all activities, including meetings and practices.
Seriously, would you take a kid backpacking knowing you be sued when you get home because he or she tripped over a stove and spilt hot pasta water on their foot. (Been there, took them to the hospital.)
1. Programs are going to have to step up to the bar and require parents to sign releases and/or acknowledgment of risk forms, which state:
a. The parent is aware and understands all the risks of the sport or activity.
b. The parent has watched all the required videos online.
c. The parents agree to arbitration or mediation for all disputes and where applicable a limitation of damages.
2. Volunteers are going to have to make the programs have an attorney prepare a release.
3. Volunteers need to make sure they buy the maximum amount of liability coverage for their homeowner’s policy they can.
a. You may consider an umbrella insurance policy to provide more coverage.
4. You need to meet with parents and create minimums. If not enough parents are available for practices or games, the kids are sent home. If you say I need 10 parents to go with the 20 kids on this weekend camping trip and nine show up, you and the nine parents get a free weekend after you take all 10 kids home.
5. If you are a volunteer or a parent, consider having all parents and volunteers take the Boy Scouts of America (BSA) Guide to Safe Scouting (GSS) program. More information on the BSA GSS can be found here.
Don’t stick your neck out for the kids when their parents may chop them off.
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Have you been watching the USA Pro Cycling Challenge? It is amazing and it is right here in Colorado! BikeDenver will be at the Finish in Denver and we would love to have you join us. We are seeking volunteers from 2pm – 5pm to help with our Bike Parking. It is a great way to be part of the USA Pro Cycling Challenge on its final day in Colorado!
If you do not have a BikeDenver t-shirt one will be provided to you to wear while volunteering on Sunday.
For more information on Stage 7 of the USA Pro Cycling Challenge click here
To sign up to volunteer click here
Please do not hesitate to contact us if you have any questions.
Rocky Mountain Bird Observatory is recruiting volunteers in Colorado to count birds, collect migration and nesting data, run education programs and more. Citizen scientists are needed for the following four programs:
ColonyWatch: Monitor colonial waterbirds to gather information about colony size and locations to help resource managers with long-term conservation. Volunteers are needed March through August at various locations across Colorado. Requires the ability to recognize the 15 species RMBO monitors and to follow a simple monitoring pro¬tocol. The necessary skills are easy to acquire; technical support is always available from the project coordinator. Contact: Jason Beason, RMBO Special Monitoring Projects Coordinator, 970-310-5117 or firstname.lastname@example.org.
HawkWatch: Collect information about raptor migration, which is stored in an online database and contributes to the understanding of raptor movements across North America. Training is the week of February 20, and official counts start March 1 and end May 7 at Dinosaur Ridge in the Dakota Hogback Natural Area, Morrison, Colo. Experienced volun¬teers are paired with those wanting to learn identification and data collection skills. Contact: Jeff Birek, HawkWatch Coordinator, 970-482-1707 ext. 25 or jeff.bi¬email@example.com (preferably before February 20).
t Collins, Colo. Volunteers must attend orientation on January 21 at RMBO’s Old Stone House at Barr Lake State Park in Brighton. Volunteers monitor designated nests weekly for a minimum of one hour, fill out data sheets and enter data into an online reporting system. They must have transportation to nest sites and a spotting scope or binoculars, and enjoy monitoring either alone or with another person. Contact: Kacie Ehrenberger, 303-659-4348 ext. 16 or firstname.lastname@example.org (preferably by January 11).
Volunteer Naturalists: Teach citizens of all ages the importance of bird and habitat conservation through in-class programs, field trips and educational outreach events in the Denver Metro area. Volunteers are given 40 hours of training in March (basic ecology, ornithology, teaching techniques, public speaking) and provide at least 40 hours of service in a year following training. Passion about education and the out¬doors, but no experience in environmental education or ornithol¬ogy, is necessary. Contact: Kacie Ehrenberger, Director of Outreach and Education, 303-659-4348 ext. 16 or email@example.com
Rocky Mountain Bird Observatory is a Colorado-based nonprofit that works to conserve birds and their habitats from Montana into Mexico through science, education and stewardship.
Rocky Mountain Bird Observatory
Conserving birds and their habitats
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