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

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

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

Index No. 104585/07

SUPREME COURT OF NEW YORK, RICHMOND COUNTY

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

August 18, 2013, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS

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

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

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

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

OPINION BY: THOMAS P. ALIOTTA

OPINION

DECISION AND ORDER

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Accordingly, it is

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

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

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

ENTER,

/s/

Hon. Thomas P. Aliotta

J.S.C.

Dated: September 18, 2013


Just because you have a piece of paper saying you are an additional insured, it does not mean there is any coverage under any policy to protect you.

Additional insured certificates are limited by two things, what the underlying policy provides coverage for and what the certificate of insurance says it will cover. Lacking  coverage under the policy or lacking the necessary language in the additional insured certificate you are hanging in the wind without any insurance coverage.

For an additional insured certificate to be valid, you must put together three things. A contract which identifies the requirements or insurance you are looking for. An insurance policy that insures those requirements and a certificate of insurance that covers those requirements or better states as the requirements are set forth in the original contract. Lacking any, one of those and you are just wasting paper.

When you get a certificate of insurance, you must then read it to make sure you meet the requirements it may set out. If there is a limitation on the amount of time you have to file a claim or a specific way to notify the insured, make sure you follow those procedures. 

Finally, whenever you file any claim with any insurance company for coverage, follow the procedures the policy requires then follow up with a letter providing notice the insurance company in writing.

Great American Alliance Insurance Company, v. Windermere Baptist Conference Center, Inc., et al., 2017 U.S. Dist. LEXIS 103148

State: Missouri, United States District Court for the Western District of Missouri, Central Division 

Plaintiff: Great American Alliance Insurance Company 

Defendant: Windermere Baptist Conference Center, Inc., et al. 

Plaintiff Claims: Great American now moves for summary judgment on its requested declaratory judgment that: (1) no liability coverage exists under its policy issued to Student Life for any claims asserted in the underlying lawsuit against Windermere or Windermere’s employees, including Kendra Brown; (2) Great American owes no duty to defend Windermere, Kendra Brown, or any other Windermere employees in the underlying lawsuit; and
(3) no medical payments coverage exists for Karlee Richards. 

Defendant Defenses:   No coverage provided under the policy or certificate of insurance

Holding: Split decision, however the insurance company will not pay anything under the certificate of insurance 

Year: 2017 

This is a legally complicated case with simple facts. A church rented a camp from Student Life, which had contracted with a church camp called Windermere. The reservation form and simple agreement between the camp and the church required the issuance of a certificate of insurance. 

A camper, part of the church group fell while riding the zip line. She sued. That lawsuit was still pending when this lawsuit was started to determine whose insurance was required to defend against the camper’s lawsuit. 

In that case, damages are being sought against them for injuries sustained by Karlee Richards after she fell while zip-lining at The Edge, a ropes course at Windermere’s Conference Center. Kendra Brown was an employee of Windermere, working at the Edge at the time of  the accident.

 The injured camper Richards was with the Searcy Baptist Church. They rented the camp through Student Life. Student Life rented the camp from Windermere. The contract between Student Life and Windermere is the one at question here. Windermere required a certificate of insurance from Student Life. 

June 2014, Karlee Richards and her Searcy Baptist Church youth group were attending a summer camp at Windermere’s Conference Center, which was sponsored by Lifeway Christian Resources of the Southern Baptist Conference, d.b.a. Student Life. Student Life contracted with Windermere to hold the church camp at Windermere’s facility in Missouri. Student Life had a liability policy with Great American, and Windermere was an additional insured on that policy. The additional insured endorsement provides that the additional insured, in this case Windermere, is only covered for “liability arising out of the ownership, maintenance or use of that portion of the premises leased to Great American contends that Windermere is not entitled to coverage for Kaylee Richards’s injuries because Windermere did not “lease” the Edge to Student Life because the Edge was not specifically mentioned in Student Life’s written agreement with Windermere.

 The first issue the court skipped was the policy that Student Life had, was restrictive and had minimal coverage. It had a requirement that all claims had to be made in one year. This may not be bad, but if the statute of limitations for the type of injury is two years or three, you may not have coverage for a claim because you did not know you had one until after the time period had run. 

Student Life is the named insured on a Commercial General Liability policy with Great American. The policy requires that all requests for medical payments be made within one year of the accident that gives rise to the insurance claim. Also, when there is other valid and collectible excess insurance coverage, the Great American policy provides that Great American will have no duty to defend its insured against a claim for damages.

 On top of the claim limitation period, the coverage was solely excess coverage. Meaning the coverage did on top of any other coverage the insured had and had no duty to defend or pay for attorneys. It only had to pay for a claim after the
limits of the underlying policy were exhausted. No underlying policy was ever mentioned in the case so it is unknown if one existed.

If this is the only policy, Student Life purchased, they bought the wrong one! 

Another issue was whether the student life policy would provide coverage for employees of Windermere that were sued based on the accident. 

This suit was brought by the Student Life insurance company, Great American Alliance Insurance Company, asking the court to tell Student Life it was not going to pay or defend any of the claims brought by the injured camper against Windermere. 

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

 The court first looked at whether the additional insured certificate was ambiguous. If so, then the court had to interpret the ambiguity under Missouri’s law.

An ambiguity is an uncertainty in the meaning of the policy.

  If an ambiguity exists, the policy language will be construed against the insurer. Mendota, “‘An ambiguity exists when there is
duplicity, indistinctness, or uncertainty in the meaning of the language of the policy.'” “‘To test whether the language used in the policy is ambiguous, the language is considered in the light in which it would normally be understood by the lay person who bought and paid for the policy.'” Whether an insurance policy is ambiguous is a question of law.” 

The burden of proving there is coverage falls on the party seeking it, in this case, Windermere. An ambiguity exists if there are different interpretations of the language in the policy. There are two types of Ambiguities, Latent and patent. 

A policy is ambiguous if it is “fairly open to different interpretations” because it contains “duplicity, indistinctness, or uncertainty of meaning.” Importantly, there are two types of ambiguities in the law: patent and latent. “A patent ambiguity is detected from the face of the document, whereas a latent ambiguity is found ‘when the particular words of a document apply equally well to two different objects or some external circumstances make their meaning uncertain.'” 

Here the court found that a patent ambiguity existed. 

For these reasons, a patent ambiguity exists. The disputed phrase not only should be interpreted in favor of the Defendants, but the Defendants’ interpretation is arguably the only one that would make sense to an ordinary person under these circumstances. 

The court also found a latent ambiguity existed in the certificate of insurance. 

A latent ambiguity exists when a contract “on its face appears clear and unambiguous, but some collateral matter makes the meaning
uncertain.” Id. In other words, an ambiguity is “latent if language, which is plain on its face, becomes uncertain upon application.”

 If an ambiguity is found in an insurance policy, the ambiguity is construed against the insurance company. “In the
alternative, it is well-settled that an ambiguity within an insurance policy must be construed against the insurer
.”

Consequently, the court ruled on this issue, that there was coverage for Windermere from the Student Life Policy. However, the court found against Student Life and Windermere on the other issues.

Windermere requested coverage for defending its employees, which the court denied. 

Great American argues that no coverage exists for Brown or any other Windermere employee because the Additional Insured Endorsement does not provide additional insured status and/or coverage for an additional insured’s employees. Brown is not identified anywhere in Student Life’s Great American policy nor is she listed as an Additional Insured on a Certificate of Liability. Therefore, any coverage for Brown would necessarily derive from her status as Windermere’s employee, and employees are not covered as insureds by the Additional Insured Endorsement. 

The court agreed with Great American that no coverage was described in the certificate of insurance. 

The next issue was, whether or not there was a duty to defend. A duty to defend is to pay the cost of the lawsuit; attorney fees, expert witness fees, etc. 

Under Missouri law, the duty to defend “arises whenever there is a potential or possible liability to pay based on the facts at the outset of the case and is not dependent on the probable liability to pay based on the facts ascertained through trial.” 

Because there was no coverage for the Windermere employees, there was no duty to defend them either. A duty to defend must be specifically identified in the policy. In this case the policy specifically stated, there was no duty to defend. 

As to whether Great American owes a duty to defend Windermere, the Endorsement makes clear that any coverage for Windermere as an additional insured would be excess, and the policy does not afford a defense when (1) its coverage is excess and (2) when the insured is being provided a defense by another carrier. 

The last issue was whether medical expenses of the injured camper were owed by Great American to Windermere. Again, since the policy specifically stated there was no coverage for medical expenses this was denied. The court also found the
requirement under the policy to make a claim for medical expenses had to be done within one year, and that time had lapsed; therefore, no medical expenses were owed by the Student Life Policy with Great American. 

The decision was split, however, in reality; Windermere got nothing from the decision. If Windermere lost its suit or exhausted its own liability insurance policy protection, it could, then see money from the Student Life policy with Great American, but no other coverage was owed by Great American. However, that meant the camper was going to have to win millions probably to exhaust the Windermere policy and Windermere or its insurance company was going to foot the bill with no help from the policy under the certificate of insurance. 

So Now What? 

This is a classic case were not knowing or checking what happens when you receive an additional insured certificate ends up costing you more money than not having one. 

The underlying policy by the group coming into the camp was crap. On top of that it had major restrictions on when it would pay. Add to those issues the certificate of insurance was badly written and the company receiving the additional insured certificate received a worthless piece of paper. On top of that it cost them a lot of money I’m guessing to sue to find out they were not going to get anything from the policy.

 1.       Issue a request for a Certificate of Insurance in a contract or the contract. Set forth in the contract everything you must have and the type of insurance policy that must be underlying the certificate of insurance.

2.      Request a copy of the insurance policy be delivered with the certificate of insurance. Again, if the policy is crap, you are getting crap. 

3.      Make sure the insurance policy covers what the contract says it should cover. 

4.      Make sure the certificate of insurance covers what the contract says it must cover. 

Just collecting certificates of insurance to put in a box or file cabinet are only killing trees. It is probably not providing you any protection as in this case.

 What do you think? Leave a comment.

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Federal Court in Idaho holds camp not liable for assault on third party by runaway minors.

The Court did find that the camp was still in the custody and control of the minors during the assault which occurred three days after the youth had run away from the camp.

Gadman v. Martin, 2014 U.S. Dist. LEXIS 83883

State: Idaho, United States District Court for the District of Idaho

Plaintiff: Vera Gadman

Defendant: Joseph Martin; Marshall Dittrich; Penelope James; and Phoenix Mountain Collaborative, LLC.

Plaintiff Claims: Negligence

Defendant Defenses: No duty

Year: 2014

Holding: for the defendant

This case is about the escape of two boys from a summer program for “troubled” youth. These programs have achieved fame and notoriety based on various issues of successes and failures, as well as abuse. However, this legal issue is important to anyone who is taking care of youth at a camp… In this one two kids at the camp ran away and then assaulted a third party. The person the runaway kids assaulted then sued the camp for her injuries.

The defendant camp was operated in Montana. During one part of the session, the youth were rafting the Clark Fork River. The Clark Fork flows from Montana to Idaho. One night during the river trip the campers were on property owned by the defendant camp. The youth ran away.

Neither of the youth who ran away from the camp had a history of violence. They seemed to be enrolled in the program because of drug use and generally being really stupid kids. Both youth has been on a run-away watch a system developed by the camp and had their journals and shoes removed. However, their shoes were returned to them for the rafting trip.

The school had a “Run Watch Policy” which the court pointed out, quoted from and found the school had not followed. “Explorations will take all reasonable precautions pertinent to each individual student so as to reduce the possibility of their escape from our custody.”

The defendant camp filed a motion for summary judgment, and this decision is based on that motion.

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

The defense was based on two theories.

1) they owed no duty to Ms. Gadman [plaintiff] and

2) the actions of Mr. Dittrich and Mr. Martin (youth runaways) were not foreseeable [to cause injury to the plaintiff] to either Explorations or Ms. James [defendants].

The determination under Idaho law as to whether the defendants owed a duty of care to the plaintiff’s when they are in charge of youth “who are dangerous or who have dangerous propensities“ is a two-part test.

The first part requires a determination of whether the supervising body actually has control over the individual in question, and then secondly, if so, a determination must be made whether the harm caused by the individual was foreseeable.

The court then looked at the first part of the test.

One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.

The first part of the test is whether or not the supervising authority has actual control over the youth. Here the youth were not allowed to leave the camp without the camps or the youth’s parent’s permissions. Even though the youth had voluntarily, and without permission, left the campsite and been away from the camp for two days at the time of the attack, the court held the camp was still in control, for the purposes of the test, of the youth.

Ordinarily, there is no affirmative duty to assist or protect someone unless special circumstances exist. The analysis is not what is the relationship between the affected third party and the youth in this case, but the relationship between the youth and the camp. “Thus, the duty alleged in this case would have to arise from a supervisory relationship where Ms. James/Explorations exercised some level of control over Mr. Martin and Mr. Dittrich.”

The fact the youth ran away was not valid excuse or abrogation of control by the camp.

Explorations was responsible for the care and custody of the youth participants in its programs. The minor participants could not leave the program without their parents’ permission. When asked if the participants of the outdoor program were “free to leave,” Ms. James stated in her deposition that participants who were minor could only leave if they had their parents’ permission, otherwise they were not free to leave. Ms. James went on to state that the steps taken to assure participants do not leave are that “care is provided, oversight and care, with our instructor team the entire time the students are there.”

Most of this analysis was based on the camps Run Watch Policy and Run Watch Kit for leaders. Because the camp knew the kids would run away and prepared for it, they knew it was possible and consequently, the court felt they did not give up control over a kid when the kid did run. “The Court finds upon these undisputed facts that Mr. Martin and Mr. Dittrich were in the custody and control of Explorations at the time of the attack.”

The next issue was the foreseeability question. In this case, the question was not whether it was foreseeable that the kids would run away, but whether it was foreseeable, the kids would assault a third party.

Foreseeability, ‘contemplates more than the mere possibility of aggressive tendencies…. The concept of foreseeability is much more narrowly drawn in this circumstance, … i.e. violence, particularly of a sexual nature, toward members of the public … must be manifest or ostensible, and highly likely to occur.

The plaintiff argued the violent acts of the defendant were foreseeable because of the youth’s drug use and prior attendance at treatment facilities. However, the court did not agree with this.

Although the boys had struggled in various aspects of their lives before attending Explorations, there is nothing in their histories that was known to Explorations that made their actions on July 31, 2011 [date of the attack] foreseeable.

The theft of drugs by one participant who had run away in the past, nor the fact that the kids had been planning to run away did not change the court’s opinion of this. The planning though, was only discovered the history of the youth, after the youth had been caught. Both arguments by the plaintiffs were too speculative according to the court.

The court held therefore, that the defendant camp was not liable.

So Now What?

Although the defendant won this case, it was a close one. All camps should read this with the understanding that a minor that has been delivered to them by their parents are in their custody and control until they are delivered back to their parents.

Whether or not this can be moderated by contract, I’m not sure.

This case would have gone the other way if the youth had a history of violence. The defendant notified the boy’s parents and law enforcement within 90 minutes of the discovery the boys were missing. Even calling law enforcement did not change the issue of control.

What do you think? Leave a comment.

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Gadman v. Martin, 2014 U.S. Dist. LEXIS 83883

Gadman v. Martin, 2014 U.S. Dist. LEXIS 83883

Vera Gadman, Plaintiff, v. Joseph Martin; Marshall Dittrich; Penelope James; and Phoenix Mountain Collaborative, LLC., Defendants.

Case No. 2:13-CV-00327-EJL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

2014 U.S. Dist. LEXIS 83883

June 17, 2014, Decided

June 17, 2014, Filed

CORE TERMS: foreseeable, violent, summary judgment, staff, violence, genuine, youth, ran, violent acts, deposition, non-moving, custody, owed, van, issue of material fact, adverse party, citation omitted, propensity, foreseen, commit, runaway, duty of care, undisputed, instructor, detention, outdoor, missing, assault, shoes, violent behavior

COUNSEL: [*1] For Vera Gadman, Plaintiff: James M Bendell, Grupp Law Office, Coeur D’Alene, ID.

For Marshall Dittrich, Defendant: Michael L Haman, LEAD ATTORNEY, Haman Law Office, Coeur d’Alene, ID.

For Penelope James, Phoenix Mountain Collaborative, LLC, Defendants: Mark A Ellingsen, LEAD ATTORNEY, WITHERSPOON KELLEY, Coeur d’Alene, ID.

JUDGES: Honorable Edward J. Lodge, U. S. District Judge.

OPINION BY: Edward J. Lodge

OPINION

MEMORANDUM DECISION AND ORDER

INTRODUCTION

Pending before the Court in the above-entitled matter are Defendants’, Phoenix Mountain Collaborative, LLC and Penelope James, Motion for Summary Judgment and related Motions. The parties have filed their responsive briefing and the matters are ripe for the Court’s consideration.1 Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.

1 Mr. Dittrich filed a response to Plaintiff’s opposition to the Motion for Summary Judgment wherein [*2] he takes no position on the Motion but responds only to clarify the record. (Dkt. 17.)

FACTUAL AND PROCEDURAL BACKGROUND

In the summer of 2011, Defendants Joseph Martin and Marshall Dittrich were participants in a 52-day outdoor program known as the Big Sky Summer Adventure Program operated by Explorations in Trout Creek, Montana. Explorations is an entity that offers both full time residential programs and summer outdoor adventure programs for youths who may have struggled in the past either academically, socially, with interpersonal relationships, or with substance use/experimentation issues. Explorations also offers counseling sessions and life skills training. Explorations is owned and operated by Defendant Phoenix Mountain Collaborative, LLC.2 The Defendant Penelope James is the managing member of Explorations who reviews the applications for enrollment at Explorations’ camps.

2 The Court will refer to Phoenix Mountain Collaborative, LLC as “Explorations” in this Order. The Court also refers to both Ms. James and Explorations collectively as “Explorations” in this Order.

On July 29, 2011, the Explorations outdoor program was finishing a float trip down the Clark Fork River which runs [*3] from Montana to Idaho. That evening, around 10:00 p.m., the students and staff camped out on the Explorations’ property. The next morning around 8:00 a.m., an Explorations’ staff member noticed Mr. Martin and Mr. Dittrich were missing. A search was conducted but the boys were not found on the property. At 9:30 a.m. Ms. James notified local law enforcement and the boys’ parents that they had run away and were missing.

The location of the two boys was not known until July 31, 2011. On that day the Plaintiff, Vera Gadman, was driving her vehicle in Clark Fork, Idaho when she saw Mr. Martin and Mr. Dittrich, hitchhiking along Highway 200. Ms. Gadman stopped her car and offered them a ride. The boys asked Ms. Gadman to take them somewhere they could camp. After driving to a couple of locations, Ms. Gadman stopped at the east end of David Thompson Road and showed the boys where they could camp on a map. At that stop, Mr. Martin and Mr. Dittrich then brutally assaulted and battered Ms. Gadman including allegedly choking, strangling, and striking her in the head with a glass bottle, throwing and striking her with rocks, and committing other acts of violence and terror against her. (Dkt. 1 at [*4] ¶ 13.) As a result, Ms. Gadman claims she suffered serious physical and emotional injuries and incurred significant damages. Ms. Gadman has filed this action raising a negligence claim against the Defendants seeking to recover for the damages she suffered from the attack. Defendants Exploration and Ms. James have filed this Motion for Summary Judgment which the Court takes up in this Order.

STANDARD OF REVIEW

Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides, in pertinent part, that judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

The Supreme Court has made it clear that under Rule 56 summary judgment is mandated if the non-moving party fails to make a showing sufficient to establish the existence of an element which is essential to the non-moving party’s case and upon which the non-moving party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). [*5] If the non-moving party fails to make such a showing on any essential element, “there can be no ‘genuine issue of material fact,’ since a completely failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323.3

3 See also, Rule 56(e) which provides, in part: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

Moreover, under Rule 56, it is clear that an issue, in order to preclude entry of summary judgment, must be both “material” and “genuine.” An issue is “material” if it affects the outcome of the litigation. An issue, before it may be considered “genuine,” must be established by “sufficient evidence supporting the claimed factual dispute . . . to require a jury or judge to resolve the parties’ differing [*6] versions of the truth at trial.” Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975) (quoting First Nat’l Bank v. Cities Serv. Co. Inc., 391 U.S. 253, 289, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968)). The Ninth Circuit cases are in accord. See, e.g., British Motor Car Distributors, Ltd. v. San Francisco Automotive Industries Welfare Fund, 882 F.2d 371 (9th Cir. 1989).

According to the Ninth Circuit, in order to withstand a motion for summary judgment, a party

(1) must make a showing sufficient to establish a genuine issue of fact with respect to any element for which it bears the burden of proof; (2) must show that there is an issue that may reasonably be resolved in favor of either party; and (3) must come forward with more persuasive evidence than would otherwise be necessary when the factual context makes the non-moving party’s claim implausible.

Id. at 374 (citation omitted).

Of course, when applying the above standard, the court must view all of the evidence in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992).

ANALYSIS

1. Motion for Extension of Time to File Statement of Genuine issues of Fact

Plaintiff’s Motion asks [*7] for leave of the Court to file a late Statement of Genuine Issues of Fact in response to the Motion for Summary Judgment. (Dkt. 23.) Plaintiff mistakenly failed to file the Statement of Fact as required by the rules. Defendants oppose the Motion arguing the proposed Statement of Facts fails to satisfy the requirements of Federal Rule of Civil Procedure 56(c) and Local Civil Rule 7.1. (Dkt. 24.) The Court has reviewed the briefing and materials on this issue and will grant the Plaintiff’s Motion and allow her to file the late Statement of Facts. While the filings is untimely, the Court finds the interests of justice are best served by deciding the Motion for Summary Judgments on its merits and there is little prejudice suffered by Defendants as a result of the late filing.

2. Defendants’ Motion for Summary Judgment

Explorations and Ms. James seek dismissal of the negligence claim against them arguing 1) they owed no duty to Ms. Gadman and 2) the actions of Mr. Dittrich and Mr. Martin were not foreseeable to either Explorations or Ms. James. (Dkt. 16.) Ms. Gadman opposes the Motion and asserts that a genuine issue of material fact exists as to whether Explorations and/or Ms. James owed [*8] a duty to her. (Dkt. 19.)

On the question of whether Ms. James and/or Explorations owed a duty of care to Ms. Gadman under Idaho law, both parties cite to and discuss Caldwell v. Idaho Youth Ranch, Inc., 132 Idaho 120, 968 P.2d 215 (Idaho 1998) but arrive at opposite conclusions. In Caldwell, the Idaho Supreme Court held that the Idaho Youth Ranch did not owe a duty of care to a third-party for the violent acts committed upon the third-party by a minor who had, several months prior, been released from an Idaho Youth Ranch program. There the court concluded that the minor was not in the custody or control of the Youth Ranch at the time he committed the violent acts upon the third-party.

In reaching this conclusion, the Idaho Supreme Court discussed the “duty owed by those in charge of persons who are dangerous or who have dangerous propensities,” quoting the duty is as described in the Restatement (Second) of Torts, § 319, which provides:

§ 319. Duty of Those in Charge of Person Having Dangerous Propensities. One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third [*9] person to prevent him from doing such harm.

Caldwell, 968 P.2d at 218 (quoting Restatement (Second) of Torts, § 319 (1977)). The court then identified the two components of the duty:

The first part requires a determination of whether the supervising body actually has control over the individual in question, and then secondly, if so, a determination must be made whether the harm caused by the individual was foreseeable.

Id. at 218-19. The parties in this case dispute both components — whether Ms. James/Explorations had control over the boys and whether the harm caused by the boys was foreseeable.

A. Control

“No liability exists under the law of torts unless the person from whom relief is sought owed a duty to the allegedly injured party.” Jones v. Starnes, 150 Idaho 257, 245 P.3d 1009, 1012 (Idaho 2011) (quoting Vickers v. Hanover Constr. Co., Inc., 125 Idaho 832, 875 P.2d 929, 932 (Idaho 1994)). “Ordinarily, ‘there is no affirmative duty to act to assist or protect another absent unusual circumstances, which justifies imposing such an affirmative responsibility. An affirmative duty to aid or protect arises only when a special relationship exists between the parties.'” Rees v. State, Dept. of Health and Welfare, 143 Idaho 10, 137 P.3d 397, 402 (Idaho 2006) [*10] (quoting Coghlan v. Beta Theta Pi Fraternity, 133 Idaho 388, 987 P.2d 300, 311 (1999)) (citations omitted). “Determining when a special relationship exists sufficient to impose an affirmative duty requires an evaluation of ‘the sum total of those considerations of policy which lead the law to say that a particular plaintiff is entitled to protection.'” Id. (quoting Coghlan, 987 P.2d at 311 (quoting W. Prosser, Law of Torts 333 (3d ed. 1964))).

The general duty which arises in many relations to take reasonable precautions for the safety of others may include the obligation to exercise control over the conduct of third persons…. [Some] relationships are custodial by nature, requiring the defendant to control his charge and to guard other persons against his dangerous propensities…. The same rule has been applied to hospitals and psychotherapists who have charge of dangerous mental patients, and to those who have charge of dangerous criminals. … Yet, in the absence of the requisite relationship, there generally is no duty to protect others against harm from third persons.

Caldwell, 968 P.2d at 218 (quoting Sterling, 723 P.2d at 768-69) (citation omitted). “[T]he key to this duty is the supervising [*11] individual’s relationship to the supervised individual, rather than a direct relationship with the endangered person or class of persons.” Caldwell, 968 P.2d at 218 (discussing Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755, 769 (Idaho 1986) superseded in part on other grounds by Idaho Code § 6-904A)). Thus, the duty alleged in this case would have to arise from a supervisory relationship where Ms. James/Explorations exercised some level of control over Mr. Martin and Mr. Dittrich.

The parties in this case disagree on the level of “control” Explorations had over the youths. Explorations argues that it provides “recreational programs and counseling for children” but maintains it is “not a state run juvenile detention center or institution.” (Dkt. 16 at 1, 9.) Participation in Exploration is voluntarily and there is no physical detention or connection to the criminal justice system. (Dkt. 16 at 2, 9.) Explorations’ briefing argues that the attendees may leave the Exploration program at any time. (Dkt. 16 at 9.)

Ms. Gadman counters that Explorations and Ms. James exercised supervisory control over the students such that a special relationship was formed which gives rise to a duty. (Dkt. 19.) Ms. Gadman [*12] points out that Ms. James testified in her deposition that students are not free to leave Explorations once they are enrolled, there had been kids in the past who had ran away from camp but were caught, and described the procedures Explorations had in place for preventing kids from escaping.

The Court finds facts in this case are distinct from those in Caldwell where it was undisputed that the violent offender had been released from the Idaho Youth Ranch several months before committing the murder. There the Idaho Supreme Court found the Idaho Youth Ranch did not have control over the offender such that a duty of care was owed. In contrast here, Explorations did have control over Mr. Martin or Mr. Dittrich and had not released them from its custody — they ran away.

Although it is not akin to a juvenile detention facility, Explorations was responsible for the care and custody of the youth participants in its programs. The minor participants could not leave the program without their parents’ permission. When asked if the participants of the outdoor program were “free to leave,” Ms. James stated in her deposition that participants who were minor could only leave if they had their parents’ [*13] permission, otherwise they were not free to leave.4 (Dkt. 19-10 at 12.) Ms. James went on to state that the steps taken to assure participants do not leave are that “care is provided, oversight and care, with our instructor team the entire time the students are there.” (Dkt. 19-10 at 13.)

4 Both Mr. Martin and Mr. Dittrich were seventeen at the time they were at Explorations.

Participants have ran away from Explorations in the past. Explorations has run away prevention measures called “Run Watch” which are written set of procedures and guidelines designed for responding to a runaway or missing student. (Dkt. 19-10 at 28-29) (Dkt. 19-6, Ex. F.) The Run Watch Policy states: “Explorations will take all reasonable precautions pertinent to each individual student so as to reduce the possibility of their escape from our custody.” (Dkt. 19-10 at 30) (Dkt. 19-6, Ex. F.) Under the Run Watch guidelines, one instructor in each group has a “run kit” which is intended to provide the instructor in pursuit of the student with whatever equipment that would be necessary to ensure the safety of the instructor. (Dkt. 19-10 at 30) (Dkt. 19-6, Ex. F.) A student is placed on Run Watch when: the student just [*14] had a run attempt; the student verbalized a threat to do so; the instructional team perceives a student to be a run threat; or escorts, operations directors, or a therapist suggests it. (Dkt. 19-6, Ex. F.) Explorations also has written procedures for handling the situations involving an “Accompanied Runaway” and an “Unaccompanied Runaway/Missing Student.” (DKt. 19-6, Ex. F.)

In this case, Explorations was aware the boys had planned to leave and actually took measures to thwart their plan by taking their shoes and journals. When their shoes were later returned, the boys executed their plan to run away from Explorations. The attack upon Ms. Gadman occurred two days after the boys left Explorations. While Explorations may not be akin to a juvenile detention facility, it is in charge of the custody and care of the children who are participating in its programs. This includes more than merely providing shelter, food, and programing. The relationship between Explorations and Mr. Dittrich and Mr. Martin was custodial. The Court finds upon these undisputed facts that Mr. Martin and Mr. Dittrich were in the custody and control of Explorations at the time of the attack. The Court next considers [*15] the second duty requirement: whether the harm caused by the individual was foreseeable.

B. Foreseeable Actions

“The question whether a risk of harm is foreseeable is generally a question for the trier of fact. Summary judgment is appropriate, however, if evidence is presented establishing the absence of any genuine issue of material fact concerning the general risk of harm.” Caldwell, 968 P.2d at 220 (citation omitted). Under the Idaho Tort Claims Act, “Foreseeability, ‘contemplates more than the mere possibility of aggressive tendencies…. The concept of foreseeability is much more narrowly drawn in this circumstance, … i.e. violence, particularly of a sexual nature, toward members of the public … must be manifest or ostensible, and highly likely to occur.'” Caldwell, 968 P.2d at 220 (quoting Harris v. State Dep’t of Health and Welfare, 123 Idaho 295, 847 P.2d 1156, 1160 (Idaho 1992)). In Caldwell, the Idaho Supreme Court recognized that “human behavior is difficult to predict with certainty, leading to the necessity for claimants to demonstrate that the harmful behavior should have been highly predictable based upon demonstrated past conduct.” 968 P.2d at 220 (citing cases).

Ms. Gadman argues [*16] Mr. Martin’s and Mr. Dittrich’s violent acts were foreseeable because both had a prior history of drug abuse and had previously attended treatment programs. (Dkt. 19.) Mr. Dittrich had also previously ran away from home and his school records include a history of “explosive and unpredictable behavior.” While at Explorations, Ms. Gadman points out that Mr. Martin had stole medications from an unlocked Explorations travel van which he ingested and then went an entire week without sleeping causing him to behave erratically and hallucinate. These factors known to Explorations, she argues, made their attack on her foreseeable.

i. Mr. Martin’s and Mr. Dittrich’s Prior Histories

Prior to attending Explorations, Mr. Martin had serious substance abuse issues that his parents knew of and he had been enrolled in different treatment programs. (Dkt. 19-8 at 7-16, 32-33.) Explorations and Ms. James were aware of Mr. Martin’s prior drug problems. In his deposition, Mr. Martin testified that after arriving at Explorations he talked with Ms. James about the problems that had brought him to the program including his prior drug use. (Dkt. 16-4 at 33-34.) Mr. Dittrich also had behavior issues having been [*17] previously kicked out of school, ran away from home, and had also previously attended treatment programs. (Dkt. 19-9 at 7-9.)

Prior to the assault on Ms. Gadman, however, neither Mr. Martin nor Mr. Dittrich had any criminal history. (Dkt. 16-4 at 39, 54) (Dkt. 18 at 56.) Mr. Martin testified in his deposition that he was “unaware” he had any type of propensity for violent behavior prior to the attack and stated he had never been violent before the incident with Ms. Gadman. (Dkt. 16-4 at 39-40.) Mr. Dittrich testified that neither he nor his parents ever told Explorations about any propensity for violence. (Dkt. 18 at 57.)

Although the boys had struggled in various aspects of their lives before attending Explorations, there is nothing in their histories that was known to Explorations that made their actions on July 31, 2011 foreseeable. (Dkt. 16-2, Aff. James.)

ii. Conduct at the Explorations Program

a. No Violent or Threatening Behavior

There is no evidence that either Mr. Martin or Mr. Dittrich engaged in any threatening or violent actions while at Explorations. In his deposition, Mr. Martin denied having committed any violent acts or threatening anyone while at the Explorations camp. [*18] (Dkt. 16-4 at 40-41.) Mr. Martin also testified he never observed Mr. Dittrich commit any violent acts or threaten anyone while he was at Explorations. (Dkt. 16-4 at 41.) In her affidavit, Ms. James states that she had not witnessed and there had been no reports that either boy had demonstrated any acts of aggression or violence to anyone at Explorations. (Dkt. 16-2 at ¶¶ 12-14.)

b. Mr. Martin’s Theft of Drugs

When he arrived at Explorations, Mr. Martin had been off drugs for less than two months. (Dkt. 16-4 at 46-47.) Mr. Martin stated he began using drugs again within a few days of being at Explorations by taking drugs located in the Explorations van. (Dkt. 16-4 at 18-19, 47-48, 62-63.) The Explorations’ staff learned that someone had taken drugs from the van and they confronted the group about it. (Dkt. 19-8 at 49-52.) At that time, Mr. Martin denied taking the drugs but testified that a couple of days before he ran away from camp he vaguely told one of the staff members that he had taken the drugs from the van and was “freaking out,” or “bugging out a little” and “hearing things.” (Dkt. 19-8 at 50-52, 64, 70.) Ms. James also testified that Mr. Martin had admitted to stealing pills [*19] from the Explorations van approximately ten days before he walked away from the program. (Dkt. 19-10 at 55-56.) Ms. James testified that after Mr. Martin admitted to taking the pills, she assumed that someone had ingested the pills. (Dkt. 19-10 at 106.) Mr. Martin testified that he had taken the drugs before Explorations knew of the boys’ plan to runaway. (Dkt. 19-10 at 97.)

The theft and taking of the medications from the Explorations’ van does not make the violence committed upon Ms. Gadman foreseeable. Clearly Mr. Martin’s behavior was out of line, but there were no indications that he would soon become aggressively violent such that the actions he took on July 31, 2011 were foreseeable to Explorations.5

5 In support of her response brief, Ms. Gadman has filed articles discussing the side effects of the drug Adderall, lack of sleep, and the connection between drugs and violence. (Dkt. 19, Ex. A, B, C.) Defendants have objected to the Court’s consideration of these exhibits arguing they are inadmissible. The Court agrees that the articles are not appropriate for consideration pursuant to Federal Rule of Civil Procedure 56(c).

As to the fact that Mr. Martin was hallucinating from the [*20] drugs, again the Court finds the undisputed facts do not give rise to anything that would have made Mr. Martins’ later violent actions foreseeable. Mr. Martin testified that after he had lied to the Explorations’ staff and repeatedly denied being the one who took the drugs, a day or two before they ran away he “mentioned” to staff that he was “freaking out” and “bugging out.” (Dkt. 19-8 at 51-53.) In describing what he told the Explorations’ staff, Mr. Martin testified that he “wouldn’t even call it a conversation. I mentioned I was freaking out a little” and that he “didn’t tell them I needed anything. I didn’t ask for help.” (Dkt. 19-8 at 52-53.) There is simply no basis from these facts from which Explorations could have predicted Mr. Martin would soon commit the violent assault upon Ms. Gadman. The fact that he stole drugs, ingested them, and was experiencing the side effects of the drugs does not make it highly predictable or likely that he would become violent; particularly since there was no known history of any violent behavior either prior to Mr. Martin attending Explorations program or while he was at the program.

c. The Plan to Run Away

Explorations’ field staff had learned [*21] of Mr. Dittrich’s and Mr. Martin’s plan to runaway on either July 19th or 20th. (Dkt. 19-10 at 40, 96.) Once they learned of the boys’ plan to leave, the Explorations’ staff confronted the boys about their plan and then instituted a lockdown. (Dkt. 19-8 at 22, 70-71) (Dkt. 19-9 at 19.) During the lockdown the two were separated in the campsite, the staff took away their shoes and journals, and did not allow them to talk to anyone else. (Dkt. 19-9 at 19.) Mr. Dittrich testified that they were later given back their shoes to use on the white-water rafting trip. (Dkt. 19-9 at 30-31.)

That they had planned to run away from Explorations and find drugs does not make their subsequent violent attack upon Ms. Gadman foreseeable. If anything, the plan and the drug use without any violence was consistent with the boys’ known histories. Ms. Gadman asserts that the violence was foreseeable because the boys would necessarily have to steal in order to obtain the drugs and other life necessities. The Court finds that argument is too speculative. In fact just the opposite proved to be true in light of the fact that the boys were given rides and marijuana from others when they were on the run all without [*22] them having to commit any violent acts. (Dkt. 19-9 at 37.)

Ms. Gadman also argues Mr. Dittrich’s second journal contained a list of items and supplies they would need when they left the program making the resulting assault foreseeable. (Dkt. 19 at 15.) (Dkt. 19-9 at 20-30, 78.) Mr. Dittrich testified that the staff at Explorations was not aware of his list. (Dkt. 18 at 78.) He further stated that the references to a knife, gun, and weapon in general were not intended to be used as a weapon against another person but for protection. (Dkt. 18 at 79-81.) Ms. Gadman asserts the staff should have looked at Mr. Dittrich’s second journal and discovered the “disturbing information.” (Dkt. 19 at 15.) This argument is also too speculative. The journal entries were started two to four days before the boys ran away and then later completed after the boys had left Explorations. (Dkt. 19-9 at 29.) While it may seem obvious in hindsight to argue that Explorations should have looked at Mr. Dittrich’s second journal, the fact remains that Explorations was not aware of the journal entries and there are no facts going to show that they should have foreseen any future violent acts by these boys.

C. [*23] Conclusion

The Court finds there is no genuine issue of material fact that supports a finding that Explorations and/or Ms. James could have foreseen the violent attack committed upon Ms. Gadman. Even considering the cumulative facts known by Explorations — i.e. the boys’ prior history, Mr. Martin’s theft and use of the drugs while at the camp, and their plan to run away — the violent assault on Ms. Gadman was not foreseeable. It is simply too attenuated to expect Explorations to have foreseen the attack based on what they knew about the boys prior to their running away.

Neither boy had any history of violent behavior or any criminal history. In reviewing both boys’ applications, Ms. James interviewed each of the boys’ parents, therapists, and educational consultants. None of these contacts conveyed any concerns that either boy was violent, likely because neither boy had any prior history of violence. While at Explorations, the boys did not commit any acts of violence or demonstrate any aggression. Although Explorations was aware of Mr. Martin’s history of substance abuse, that fact, even when considered in the context of the totality of the circumstances known by Explorations, does not [*24] make his later violent actions foreseeable. As to the fact that one of Mr. Dittrich’s schools had scored him at the highest end of “explosive and unpredictable behavior,” that notation was made eleven years before he attended the Explorations program. (Dkt. 19-10 at 80.) The Court finds the undisputed facts establish that the boys’ violent attack was not highly predictable or likely and, therefore, was not foreseeable. See Caldwell, 968 P.2d at 220.

It is notable that at the time they left the program the boys themselves had not even decided where they were going let alone contemplated attacking anyone. Mr. Martin testified that when they left Explorations his intention was just to get to a city so he could use drugs again but denied he had any intention of committing violence on anyone. (Dkt. 16-4 at 42.) It was not until after the boys had left Explorations that they discussed stealing a car and assaulting someone to get a car. (Dkt. 16-4 at 43-44.) If they themselves did not know or had not yet decided to commit a violent action, there certainly is no way the staff at Explorations could have foreseen the actions such that anyone could say the violence was “highly likely to occur.” [*25] Caldwell, 968 P.2d at 220 (citation omitted). Because there is no genuine issue of material fact in dispute that show Explorations and/or Ms. James could have foreseen the violent actions of Mr. Martin and Mr. Dittrich, the Court finds they did not owe a duty of care to Ms. Gadman. The Motion for Summary Judgment is granted.

ORDER

NOW THEREFORE IT IS HEREBY ORDERED as follows:

1) Plaintiff’s Motion to Extend Time (Dkt. 23) is GRANTED.

2) Defendants’ Motion for Summary Judgment (Dkt. 16) is GRANTED. The claim against Defendants Phoenix Mountain Collaborative, LLC and Penelope James is HEREBY DISMISSED.

DATED: June 17, 2014

/s/ Edward J. Lodge

Honorable Edward J. Lodge

U. S. District Judge


12000 Summer Camps in the US 7000 overnight camps. Do you have your child set to make great memories this summer?

Between attending as a camper and working as a staff member, my memories of summer camp are some of the greatest I have. Freedom for the summer, learning new things, seeing how long it will take government surplus peanut butter to fall out of a dish……great memories

6 Million kids attend summer camp each summer!

 

 

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12000 Summer Camps in the US 7000 overnight camps. Do you have your child set to make great memories this summer

Between attending as a camper and working as a staff member, my memories of summer camp are some of the greatest I have. Freedom for the summer, learning new things, seeing how long it will take government surplus peanut butter to fall out of a dish……great memories

6 Million kids attend summer camp each summer!

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Camp held liable when a camper misunderstands instructions, and plaintiff was not paying attention.

Gamze v Camp Sea-Gull, Inc., 2012 Mich. App. LEXIS 1227 (Mich App 2012)

Would you have ever guessed that capture the flag would lead to a lawsuit?

This case was dismissed by the trial court on a summary disposition which is called a motion for summary judgment in most jurisdictions. The case had been dismissed before trial because the trial court found that:

I can’t see where the camp and Mr. Schulman did anything wrong. I can’t see where this individual’s grabbing of the marker was a foreseeable event by the camp and those in charge of this particular camp and the camp’s owner.

The case arose at a summer camp when the campers were play capture the flag. At either end of the field, there was a circle with a pole and a flag on top of the pole. The pole was to locate the flag. The flag was a piece of cloth lying at the base on the ground within the circle.

One of the girls either was not told what the flag was or misunderstood what the flag was and instead of grabbing the flag lying on the ground grabbed the pole and started running. The plaintiff ran into the bottom of the pole which had a metal stake which hit her in the mount. The plaintiff lost one tooth, and three other teeth were broken.

The plaintiff sued claiming negligence and claims for premise’s liability. Premise’s liability is the legal theory that based on the type of person you are the duty owed by the land owner changes. Since the plaintiff was on the land, she claimed the landowner/defendant had not kept her safe to the legal standard required.

Summary of the case

The court first looked at the Definition of Negligence under Michigan Law. The elements to prove negligence in Michigan are identical to the majority of other states. “The elements of a negligence claim are “(1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages.”

The court then determined that the issue the trial court had decided was that there was no duty owed to the plaintiff. The court then defined how a duty was to be determined.

“When determining whether a duty should be imposed, the ultimate inquiry is “whether the social benefits of imposing a duty outweigh the social costs of imposing a duty.””

“This inquiry involves considering, among any other relevant considerations, the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented.” But the most important factor is the relationship of the parties.

The court found that the defendant owed a duty to provide proper instructions on how the game of capture the flag was to be played.

In 2007, Gamze was a summer camper at the Camp. She and her family entrusted defendants with her safety during her stay. It was foreseeable that if the campers were not properly instructed, then a camper could pick up the actual flagpole instead of picking up the flag/towel lying on the ground next to the flagpole. It is also foreseeable that, if a camper did remove the flagpole from the ground, the camper could injure another camper while running with the pole. Finally, the burden to properly instruct the campers to pick up the towel from the ground is negligible.

Once it is determined that the defendant owes the plaintiff a duty of care, then the reasonableness of the defendant’s conduct is a question of fact for the jury.

The court also looked at whether the injury was proximately caused by the actions of the defendant. “Proximate cause normally involves examining the foreseeability of consequences and whether a defendant should be held liable for those consequences.” However, the court held that proximate cause was a question for the jury.

The final issue was the premise’s liability claim. The court agreed with the trial court and upheld the dismissal of the claim. The plaintiff was an invitee to the land, and as such she was owed a “duty to “‘exercise reasonable care to protect [her] from an unreasonable risk of harm caused by a dangerous condition on the land.‘””

The court found that the plaintiff was not harmed by a dangerous condition on the land. The danger was solely caused by the actions of the other campers not an inherent condition of the premises.

The appellate court sent the case back to the trial court on the issue of whether the camp was negligent in the way it instructed and ran the capture the flag game.

So Now What?

Kids get hurt. There is not much you can do about that, and if you can, you have probably stopped the earth from rotating. There was not much you can do here from a legal perspective to stop this litigation except tell parent’s things they should already know.

Kids get hurt. When your bring child to this camp, we will do everything we can to keep your child safe. However, we cannot protect your child from everything, much of anything. Between the outdoors, you not being here and other campers all sorts of injuries occur.

Do you understand that when you bring your child to this camp, your child can be hurt?

You could keep campers from playing games, or you could keep young girls who are being chased from running without looking where they are going. However, I think that earth rotation thing will be easier.

Plaintiff: Jonathan C. Gamze, as Next Friend for Julie Gamze,

 

Defendant: Camp Sea-Gull, Inc. and William P. Schulman, Defendants-Appellees, and Emily Lisner, Defendant

 

Plaintiff Claims: negligence and premises liability

 

Defendant Defenses: No duty and injury not caused by the premises

 

Holding: Premises liability claim was dismissed and the case was returned for trial on the negligence claim.

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Gamze v Camp Sea-Gull, Inc., 2012 Mich. App. LEXIS 1227 (Mich App 2012)

Gamze v Camp Sea-Gull, Inc., 2012 Mich. App. LEXIS 1227 (Mich App 2012)

JONATHAN C. GAMZE, as Next Friend for JULIE GAMZE, a Minor, Plaintiff-Appellant, v CAMP SEA-GULL, INC. and WILLIAM P. SCHULMAN, Defendants-Appellees, and EMILY LISNER, Defendant.

No. 299433

COURT OF APPEALS OF MICHIGAN

2012 Mich. App. LEXIS 1227

June 21, 2012, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

PRIOR HISTORY: [*1]

Charlevoix Circuit Court. LC No. 09-054822-NO.

CORE TERMS: camper, flag, flagpole, towel, capture, foreseeable, premises liability, team’s, material fact, circle, lying, pole, matter of law, genuine issues, proximate cause, proximately, counselor, favorable, causation, grabbing, owed, top, pick, order granting, negligence claim, final order, proper instructions, dangerous condition, foreseeability, depositions

JUDGES: Before: WILDER, P.J., and HOEKSTRA and BORRELLO, JJ.

OPINION

Per Curiam.

In this case, plaintiff appeals from an order granting summary disposition in favor of defendants1 Camp Sea-Gull, Inc. (the Camp) and William Schulman, a part-owner and associate director of the Camp, on plaintiff’s claims of negligence and premises liability. Because genuine issues of material fact remain regarding plaintiff’s negligence claim, we affirm in part, reverse in part, and remand.2

1 Emily Lisner was dismissed by stipulation and is not involved in this appeal. Thus, our reference to “defendants” will refer to appellees.

2 Defendants have raised a question as to this Court’s jurisdiction over the appeal. Plaintiff filed the initial appeal of the order granting summary disposition before Lisner had been dismissed from the case. Accordingly, this Court dismissed the appeal for lack of jurisdiction. Gamze v Camp Sea-Gull, Inc, unpublished order of the Court of Appeals, entered July 13, 2010 (Docket No. 298202). We informed plaintiff, however, that he could seek to appeal the grant of summary disposition by filing a delayed application for leave under MCR 7.205(F). Defendants [*2] subsequently requested that the trial court tax their costs against plaintiff. On July 29, 2010, the trial court denied this motion except for a $20 motion fee. Plaintiff then filed the current appeal. The arguments on appeal do not concern the motion for costs but, instead, are exclusively aimed at the trial court’s decision to grant the motion for summary disposition.

When an appeal of right is dismissed for lack of jurisdiction or is not timely filed, an appellant may file an application for leave to appeal up to 12 months after entry of the final order to be appealed. MCR 7.205(F)(1) and (F)(3). Plaintiff filed this appeal on August 2, 2010, less than 12 months after May 21, 2010. Given the trial court’s notation in the orders below concerning which order was–or was not–intended as the final order in this case, we treat plaintiff’s claim of appeal as an application for leave and hereby grant it. MCR 7.205(D)(2); see also In re Morton, 258 Mich App 507, 508 n 2; 671 NW2d 570 (2003).

I. BASIC FACTS

Julie Gamze and defendant Emily Lisner were both campers at the Camp in the summer of 2007. As part of a “Pirate Day” on July 15, 2007, the Camp organized a game of capture the flag on a [*3] large field divided into two halves. In the middle of each half was a circle, and in the middle of the circle was a five-foot tall flagpole3 with a colored flag on top. While the object of the game was to “capture” the opposing team’s “flag,” the “flag” to be seized was actually a piece of cloth or towel lying on the ground at the base of the flagpole. Participants were not supposed to attempt to capture the flag on top of the pole or the pole itself. Lisner testified that no one told her that the flagpole flag was not the correct flag to capture, and the counselor who explained the rules does not remember if she clarified that point. In the course of the game, Lisner grabbed the flagpole and began running with it. Gamze was running nearby, being chased by another camper, and the metal stake at the bottom end of the flagpole hit her in the mouth. She lost one tooth, and three others were broken.

3 The flagpole also had a metal tapered end or “stake” so it could be inserted and anchored into the ground.

Plaintiff filed suit against defendants, alleging negligence and premises liability. The trial court granted defendants’ motion for summary disposition and stated the following at the hearing:

I [*4] can’t see where the camp and Mr. Schulman did anything wrong. I can’t see where this individual’s grabbing of the marker was a foreseeable event by the camp and those in charge of this particular camp and the camp’s owner.

Anything that they did or failed to do was not the proximate cause of this Plaintiff’s injury. And, I don’t believe there is any material facts that are in dispute that would prevent the granting for the Motion for Summary Disposition under [MCR 2.116(C)(10)]. So that’s my ruling.

II. STANDARD OF REVIEW

This Court reviews de novo a trial court’s decision on a motion for summary disposition. Auto Club Group Ins Co v Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2001). When reviewing a motion brought under MCR 2.116(C)(10), we consider the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party. Brown v Brown, 478 Mich 545, 551-552; 739 NW2d 313 (2007). A grant of summary disposition “is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Id. at 552.

III. ANALYSIS

A. NEGLIGENCE

The elements of a negligence claim are “(1) a duty [*5] owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages.” Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). It is not entirely clear which element(s) the trial court found to be deficient in plaintiff’s claim. While only explicitly referencing causation, the trial court’s statement seemed to encompass three of the elements: duty (“I can’t see where this individual’s grabbing of the marker was a foreseeable event . . . .”; breach (“I can’t see where the [defendants] did anything wrong.”; and causation (“[a]nything that they did or failed to do was not the proximate cause of this Plaintiff’s injury.”). With the damages element not being disputed, we will address the remaining three elements.

The question of whether a defendant owes a plaintiff a duty of care is a question of law. Cummins v Robinson Twp, 283 Mich App 677, 692; 770 NW2d 421 (2009). When determining whether a duty should be imposed, the ultimate inquiry is “whether the social benefits of imposing a duty outweigh the social costs of imposing a duty.” In re Certified Question from Fourteenth Dist Court of Appeals of Texas, 479 Mich 498, 505; 740 NW2d 206 (2007). “This inquiry [*6] involves considering, among any other relevant considerations, the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented.” Id. (quotation marks omitted). But the most important factor is the relationship of the parties. Id.

Here, we conclude that defendants owed Gamze a duty to provide proper instructions for the game of “capture the flag.” In 2007, Gamze was a summer camper at the Camp. She and her family entrusted defendants with her safety during her stay. It was foreseeable that if the campers were not properly instructed, then a camper could pick up the actual flagpole instead of picking up the flag/towel lying on the ground next to the flagpole. It is also foreseeable that, if a camper did remove the flagpole from the ground, the camper could injure another camper while running with the pole.4 Finally, the burden to properly instruct the campers to pick up the towel from the ground is negligible.

4 This is especially foreseeable when the opposing team’s goal is to pursue and tag the flag carrier.

Once the existence of a duty toward Gamze is established, the reasonableness of the defendant’s conduct is a question [*7] of fact for the jury. Arias v Talon Development Group, Inc, 239 Mich App 265, 268; 608 NW2d 484 (2000). Thus, the next question is whether there is a genuine issue regarding whether defendants breached this duty by failing to provide the proper instructions.

In support of their motion for summary disposition, defendants provided, inter alia, the unsworn “statements” from two people who were camp counselors at the time of the accident. However, these statements do not comply with the requirements of MCR 2.116(G)(2) since they are not “affidavits, depositions, admissions, or other documentary evidence,” and consequently cannot be considered. Marlo Beauty Supply, Inc v Farmers Ins Group of Cos, 227 Mich App 309, 321; 575 NW2d 324 (2009). Moreover, even if the statements were considered, they would not support granting defendants’ motion for summary disposition. The first statement was by Leah Glowacki, who was the programming counselor at the time of the incident. With regard to the instructions, she stated, “I instructed the campers to attempt to obtain the flag that was inside the circle on the opposite side of the field from where their team was stationed.” This statement does not establish [*8] that the correct instructions were given. In fact, when viewing the statement in a light most favorable to plaintiff, one could conclude that Glowacki’s instructions might possibly have been construed by at least some campers as a directive to remove the flag itself instead of the towel on the ground. The other statement was provided by Stephanie Plaine, who stated that she instructed the campers “to capture the team’s flag on the other side of the field which was located inside the circles drawn onto the grass.” Again, this statement does not specify that the instruction was to get the towel lying next to the flag.

Defendants did properly submit the depositions of six people, however. But none of the submitted testimony indicated that the campers were instructed to ignore the flagpole and only pick up the towel on the ground: Gamze could not recall what specific instructions were given; Lisner testified that she did not hear any specific instructions to take the towel on the ground instead of the pole itself; Jack Schulman and William Schulman both admitted that they did not hear the instructions that Glowacki and Plaine provided; Marsha Schulman admitted that she was not present when [*9] the instructions were given; and Plaine, herself, testified that she could not recall the specifics of the instructions that she gave. Therefore, when viewing all of this evidence in a light most favorable to plaintiff, there is a question of material fact on whether the Camp instructed the campers to only take the towel lying at the base of the flagpole instead of the flag or flagpole itself.

Finally, the trial court indicated that it found as a matter of law that defendants could not have proximately caused plaintiff’s injuries. But proximate cause is a factual question for the jury unless reasonable minds could not differ. Lockridge v Oakwood Hosp, 285 Mich App 678, 684; 777 NW2d 511 (2009). Proximate cause normally involves examining the foreseeability of consequences and whether a defendant should be held liable for those consequences. Campbell v Kovich, 273 Mich App 227, 232; 731 NW2d 112 (2006). Here, a reasonable juror could have concluded that a failure to instruct the campers properly could foreseeably result in an enthusiastic camper grabbing and removing the flagpole in order to “capture the flag” affixed to the top of it. And because the object of the game was for the camper [*10] to run the flag back to her team’s territory while other campers tried to tag her, a reasonable person could conclude that it was foreseeable that other campers might be hit and injured by the five-foot tall flagpole as it was being moved. Therefore, the trial court erred by holding as a matter of law that defendants could not have proximately caused Gamze’s injuries.

B. PREMISES LIABILITY

We now turn to plaintiff’s premises liability claim. Because Gamze was an invitee on the Camp’s premises, defendants owed a duty to “‘exercise reasonable care to protect [her] from an unreasonable risk of harm caused by a dangerous condition on the land.'” Benton v Dart Properties, Inc, 270 Mich App 437, 440; 715 NW2d 335 (2006), quoting Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001) (emphasis added). Plaintiff must show that the duty was breached and that the breach proximately caused her injuries. Benton, 270 Mich App at 440.

However, Gamze was not harmed by a dangerous condition “on the land.” Instead, she was harmed when Lisner pulled the flagpole out of the ground and began running with it. The danger arose solely because of the actions of the participants and not because of [*11] an inherent condition of the premises. Thus, plaintiff’s claim properly sounds in negligence, not premises liability.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. No costs are taxable pursuant to MCR 7.219, neither party having prevailed in full.

/s/ Kurtis T. Wilder

/s/ Joel P. Hoekstra

/s/ Stephen L. Borrello

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Delaware holds that mothers signature on contract forces change of venue for minors claims.

Doe v. Cedars Academy, LLC, 2010 Del. Super. LEXIS 559

Court recognizes that you can’t argue rights under the contract and void other parts of the contract in the same lawsuit.

This case alleges that the minor was assaulted at a school for students who have a need for academic and social skills development. To be enrolled in the school the mother had to sign a substantial contract. The contract included a release of liability (pre-injury release) and a venue and jurisdiction clause.

The minor was allegedly threatened and sexually assaulted by another student. The mother and son sued for.

“….negligence, gross negligence, and recklessness; one count raises a breach of contract claim, and one count raises a claim that Defendants violated John Doe’s substantive due process right to bodily integrity.”

The defendants, the school and the parent company of the school moved to dismiss the complaint for lack of personal jurisdiction. This means the contract says the jurisdiction is located in another state, therefor this court does not have the legal right to hear the claim. i.e. the jurisdiction clause in the contract between the parties.

Summary of the case

The school was located in Delaware; however, the agreement required arbitration in California. The venue and jurisdiction clause was extensive in the contract.

21. Governing Law/Venue: This Agreement, and all matters relating hereto, including any matter or dispute arising between the parties out of this Agreement, tort or otherwise, shall be interpreted, governed and enforced according to the laws of the State of California; and the parties consent and submit to the exclusive jurisdiction and venue of the California Courts in Los Angeles County, California, and any qualified (American Arbitration Association-approved) arbitration service in the State of California, County of Los Angeles, to enforce this Agreement. The parties acknowledge that this Agreement constitutes a business transaction within the State of California. 10

The court looked at four issues in reviewing the contract and the claims of the plaintiffs:

(A) whether the Agreement is binding as to Jane Doe; [the mother]

(B) whether the Agreement is binding as to John Doe; [the son]

(C) whether the pre-injury release provision renders the entire Agreement unenforceable; and, if not

(D) whether the choice of law, choice of forum, and/or arbitration provisions of the Agreement are controlling.

The issue of whether the contract is binding on the mother. The court found it was because the mother also sued for damages under the contract. Here the court found if you are suing for damages under the contract, you cannot claim you are not part of the contract.

The court also held, in what was one of the clearest statements on this issue I’ve read, that the mother could not avail herself of the services of the defendant and put her son in the school and then claim the contract did not apply to her. If the contract allowed her to put her son in the school, then the contract applied to her.

But for the right to contact as a mother, there would be no services for children.

This same analysis was applied to whether or not the minor was bound by the agreement. If the minor could attend the school, based on the contract, then the minor had to be bound by the contract.

To conclude that John Doe is not bound by the Agreements otherwise enforceable terms, as Plaintiffs contend, simply because he is a minor would be tantamount to concluding that a parent can never contract with a private school (or any other service provider) on behalf and for the benefit of her child. As a practical matter, no service provider would ever agree to a contract with a parent if a child could ignore the provisions of the contract that pertain to him without recourse.

The court did not determine or decided if a parent can bind a minor to a pre-injury release. The court held that the contract allowed the court to exclude for the sake of argument, any part of the contract that it felt was unenforceable and therefore, the court could decide the issue without deciding the release issue.

The court then found the jurisdiction and venue clause were valid, and the case must be sent to California. Whether that was going to be a California court or arbitration, as required by the contract, in California was up to the California court.

At this point, the plaintiff argued the minute aspects of the contract did not force the case to be sent to California. This forced the court to scrutinize the agreement, down to the placement of a semi-colon. The court determined the jurisdiction and venue portion of the agreement applied.

Unless the forum selection clause “is shown by the resisting party to be unreasonable under the circumstances,” such clauses are prima facie valid. A choice of forum provision will be deemed “unreasonable” only when its enforcement would seriously impair the plaintiff’s ability to pursue its cause of action.” Mere inconvenience or additional expense is not sufficient evidence of unreasonableness.

So Now What?

Over and over I have stressed the importance of a well-written  jurisdiction and venue (choice of forums) clause in your release and in all documents. Here again, this clause will make litigation more difficult for the plaintiff.

You want the lawsuit in your community. Most of the witnesses are usually located there, the business is there, and you are better prepared to defend a claim there.

Another issue that was not brought up the court, but is present in the case is the decision on arbitration. Arbitration may be a great item for you to use if you are dealing with minors for several reasons.

Arbitration is cheaper and quicker than a trial. The rules governing arbitration have a shorter time frame and do not allow as much time for discovery.

Arbitrators, by statute, are usually limited on the type of amount of damages that they can award. As such, punitive or other excessive damages may not be awarded by an arbitrator.

However, arbitration is not necessarily the way to go in every case. Arbitration does not allow, normally for motions for summary judgment. If you have a well-written  release in a state that allows the use of releases, you will have a faster and better result going to court and filing a motion for summary judgment.

Whether or not to put arbitration in a release or other contract is one to be carefully reviewed based on your state, your state law and your situation with your attorney.

What do you think? Leave a comment.

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Doe v. Cedars Academy, LLC, 2010 Del. Super. LEXIS 559

Doe v. Cedars Academy, LLC, 2010 Del. Super. LEXIS 559

John Doe and Jane Doe, individually, and as Guardian and Next Friend of John Doe, a minor, Plaintiffs, v. Cedars Academy, LLC, and Aspen Education Group, Inc., Defendants.

C.A. No. 09C-09-136 JRS

Superior Court of Delaware, New Castle

2010 Del. Super. LEXIS 559

July 20, 2010, Submitted

October 27, 2010, Decided

Notice:

This opinion has not been released for publication. Until released, it is subject to revision or withdrawal.

SUBSEQUENT HISTORY: Reargument denied by Doe v. Cedars Acad., LLC, 2011 Del. Super. LEXIS 18 (Del. Super. Ct., Jan. 19, 2011)

PRIOR HISTORY: [*1]

Upon Consideration of Defendants’ Motions to Dismiss.

DISPOSITION: GRANTED.

CASE SUMMARY:

PROCEDURAL POSTURE: The court considered a motion to dismiss (Del. Super. Ct. R. Civ. P. 12(b)(6)) filed by the defendants, a limited liability company (LLC) and a corporation, seeking an order dismissing a complaint filed by plaintiffs, a mother and her son, in which plaintiffs alleged the mother entered into a contract with the LLC to enroll her son in a boarding school and that, while a student there, he was sexually assaulted and threatened by a fellow student.

OVERVIEW: A fair reading of the complaint indicated plaintiffs alleged defendants were liable for damages for breach of the contract and for breach of common law duties of care. The court found a reasonable person would conclude that the mother objectively manifested her assent to be bound by the terms of the contract by paying tuition to the school and entrusting her son to the school as contemplated by the contract. The son, a minor, was also bound by the agreement, entered into on his behalf. Even if a pre-injury release was invalid, it would not render the entire agreement unenforceable. After reviewing the provisions within the four corners of the contract, the court concluded the parties intended to consent to the exclusive jurisdiction of California courts or arbitration panels to litigate their claims, based on a forum selection clause. Other than arguing that the contract was invalid because it was unconscionable, plaintiffs did not provide any support for their claim that the court should ignore the forum selection clause. Given the law in Delaware that choice of forum provisions were enforceable absent a showing of unreasonableness, the court declined to exercise jurisdiction.

OUTCOME: The motion to dismiss was granted.

COUNSEL: Joseph J. Rhoades, Esquire, Stephen T. Morrow, Esquire, LAW OFFICE OF JOSEPH J. RHOADES, Wilmington, Delaware. Attorneys for Plaintiffs.

Norman H. Brooks, Jr., MARKS, O’NEILL, O’BRIEN & COURTNEY, P.C., Wilmington, Delaware. Attorney for Defendants.

JUDGES: Joseph R. Slights, III, Judge.

OPINION BY: Joseph R. Slights, III

OPINION

MEMORANDUM OPINION

SLIGHTS, J.

I.

Before the Court is a Motion to Dismiss filed by the Defendants, Cedars Academy, LLC (“Cedars”) and Aspen Education Group, Inc. (“Aspen”) (collectively “the Defendants”). The motion seeks an order dismissing the Complaint filed by John Doe and his mother Jane Doe (collectively “Plaintiffs”), 1 in which Plaintiffs allege that Jane Doe entered into a contract with Cedars to enroll her son in the Cedars Academy Boarding School (“Cedars Academy”) and that, while a student there, John Doe was sexually assaulted and threatened by a fellow student. 2

1 Plaintiffs have used pseudonyms, presumably because of the sensitive nature of the allegations.

2 Compl. ¶ 7.

The Complaint contains five counts: three counts raise tort-based claims including negligence, gross negligence, and recklessness; 3 one count raises a [*2] breach of contract claim, 4 and one count raises a claim that Defendants violated John Doe’s substantive due process right to bodily integrity. 5 Defendants move to dismiss all counts for lack of subject matter jurisdiction and improper venue, and also based on a pre-injury release signed by Jane Doe. Defendant Aspen also moves to dismiss for lack of personal jurisdiction. Upon review of the motion, and the responses thereto, the Court determines that the forum selection clause of the operative contract (selecting California as the exclusive forum) is enforceable as to all of the parties and, as such, the motion to dismiss this action must be GRANTED.

3 Compl. ¶¶ 11-20, 26-29, 30-31.

4 Compl. ¶¶ 21-25.

5 Compl. ¶¶ 32-39.

II.

On September 15, 2007, Jane Doe entered into a contract with Cedars (hereinafter “the Agreement”) to enroll her minor son, John Doe, as a full time student at the Cedars Academy in Bridgeville, Delaware. 6 Cedars Academy is a private preparatory boarding school for students who demonstrate a need for academic and social skill development. 7 The Agreement between Ms. Doe and Cedars contained the following provisions relevant to the controversy sub judice:

5. Assumption of [*3] the Risks; Releases and Indemnities: Sponsor acknowledges serious hazards and dangers, known and unknown, inherent in the Program, including but not limited to vocational activities, emotional and physical injuries, illness or death that may arise from strenuous hiking, climbing, camping in a natural environment, exposure to the elements, plants and animals, running away from the Program, “acts of God” (nature), physical education activities, water sports, stress, involvement with other students, self-inflicted injuries, and transportation to and from activities. Sponsor understands that in participating in the Program Student will be in locations and using facilities where many hazards exist and is aware of and appreciates the risks, [sic] which may result. Sponsor understands that accidents occur during such activities due to the negligence of others, which may result in death or serious injury. Sponsor and Student are voluntarily participating in the Program with knowledge of the dangers involved and agree to accept any and all risks. In consideration for being permitted to participate in the Program, Sponsor agrees to not sue, to assume all risks and to release, hold harmless, [*4] and indemnify Cedars and any and all of its predecessors, successors, officers, directors, trustees, insurers, employees … including, but not limited to, Aspen Education Group, Inc. (collectively all of these above persons and entities shall be referred to as the “Released Parties” hereafter) who, through negligence, carelessness or any other cause might otherwise be liable to Sponsor or Student under theories of contract or tort law. Sponsor intends by this Waiver and Release to release, in advance, and to waive his or her rights and discharge each and every one of the Released Parties, from any and all claims for damages for death, personal injury or property damage which Sponsor may have, or which may hereafter accrue as a result of Student’s participation in any aspect of the Program, even though that liability may arise from negligence or carelessness on the part of the persons or entities being released, from dangerous or defective property or equipment owned, maintained, or controlled by them, or because of their possible liability without fault. Additionally, Sponsor covenants not to sue any of the Released Parties based upon their breach of any duty owed to Sponsor or Student [*5] as a result of their participation in any aspect of the Program. Sponsor understands and agrees that this Waiver and Release is binding on his or her heirs, assigns and legal representatives. 8

15. Binding Arbitration: Any controversy or claim arising out of or relating to this contract, except at Cedars’ option the collection of monies owed by Sponsor to Cedars, shall be settled by binding arbitration conducted in the State of California in accordance with the rules of the American Arbitration Association; 9 and

21. Governing Law/Venue: This Agreement, and all matters relating hereto, including any matter or dispute arising between the parties out of this Agreement, tort or otherwise, shall be interpreted, governed and enforced according to the laws of the State of California; and the parties consent and submit to the exclusive jurisdiction and venue of the California Courts in Los Angeles County, California, and any qualified (American Arbitration Association-approved) arbitration service in the State of California, County of Los Angeles, to enforce this Agreement. The parties acknowledge that this Agreement constitutes a business transaction within the State of California. 10

6 Compl. [*6] ¶ 2.

7 Pls.’ Resp. Defs.’ Mot. to Dismiss Ex. A.

8 Agreement ¶ 5.

9 Agreement ¶ 15.

10 Agreement ¶ 21.

On September 21, 2007, John Doe began attending Cedars Academy and residing in one of its dormitories. 11 While there, John Doe was propositioned by another student to perform sexual acts. According to the Complaint, on one or more occasion, the other student (not named as a defendant or otherwise in the Complaint) entered John Doe’s dormitory room, threatened him and sexually assaulted him. 12 Plaintiffs allege that these sexual assaults resulted in physical and emotional injuries to John Doe and economic damages to both Plaintiffs. 13 A fair reading of the Complaint indicates that Plaintiffs allege Defendants are liable for their damages both as a result of having breached the Agreement and having breached common law duties of care. 14

11 Compl. ¶ 7.

12 Id.

13 Compl. ¶¶ 7-10.

14 See Id. (Counts I through IV).

III.

In support of their motion, Defendants argue that the Agreement is enforceable against Jane Doe as the signatory and John Doe as a third party beneficiary. 15 Because both parties are bound by the Agreement, Defendants argue that Delaware’s preference for enforcing choice of forum provisions [*7] should prevail when, as here, the selected jurisdiction (California) has a “material connection” with the transaction. 16 Finally, Defendants assert that the arbitration provision of the Agreement should be honored because Jane Doe freely entered into the Agreement for the benefit of her minor son and John Doe received the benefit of the Agreement in the form of student housing, meals, and education. 17 According to the Defendants, he “who accepts the benefits of the contract, is also bound by any burdens or restrictions created by it.” 18

15 Defs.’ Letter Mem. pgs. 1-4.

16 Id. at 5.

17 Id. at 4.

18 Id.

In response, Plaintiffs first argue that the Agreement is not enforceable as to Jane Doe or John Doe because its “assumption of the risks; releases and indemnities” provision is invalid as a matter of law. According to Plaintiffs, Delaware courts look with disfavor upon clauses which exculpate a party from the consequences of that party’s own negligence. 19 Moreover, Plaintiffs argue that parents do not have the authority to execute a pre-injury release on behalf of their children. Such pre-injury releases “deprive children of the legal relief necessary to redress negligently inflicted injuries,” [*8] according to Plaintiffs, and are thus void as against public policy. 20 Because the Agreement contains a pre-injury release provision that purports to release a minor’s claim, and an invalid indemnification provision, Plaintiffs contend that the entire Agreement is unenforceable. 21

19 Pls.’ Resp. Defs.’ Letter Mem. pg. 2.

20 Id. at 7.

21 Id. at 6-7.

Plaintiffs next argue that even if the Agreement is enforceable against Jane Doe, it is not enforceable against John Doe because he is not a party to the Agreement. In this regard, Plaintiffs contend that the Agreement fails to identify John Doe as a party to the Agreement, that John Doe is not a signatory to the Agreement, and that there is no language in the Agreement to suggest that Jane Doe was contracting on John Doe’s behalf. 22 Thus, according to the Plaintiffs, the Agreement is between Jane Doe and Cedars only and does not bind John Doe. 23 Plaintiffs further contend that even if John Doe is considered a third party beneficiary, he is still not bound to the Agreement because he did not sign it. 24

22 Id. at 4.

23 Id.

24 Id. at 6.

Finally, Plaintiffs assert that the choice of forum and arbitration provisions of the Agreement are unenforceable [*9] against both Plaintiffs because the Agreement is over-broad and unconscionable. 25 The Plaintiffs contend that the Agreement is too broad because there is no evidence that the parties contemplated “Cedars’ common law duty to prevent sexual assaults on John Doe or the manner in which breaches of that duty would be redressed when they entered into the Agreement.” 26 In addition, they argue that the Agreement is unconscionable because “John Doe was in need of specialized care and Cedars purported to be uniquely qualified to render such care,” leaving Jane Doe with little choice but to “sign on the dotted line.” 27

25 Id. at 8-10.

26 Id. at 9.

27 Id. at 10.

IV.

[HN1] In evaluating a Motion to Dismiss under Superior Court Civil Rule 12(b)(6), the Court must assume all well plead facts in the complaint to be true. 28 A complaint will not be dismissed unless the plaintiff would not be entitled to recover under any reasonable set of circumstances susceptible of proof. 29 Stated differently, a complaint may not be dismissed unless it is clearly not viable, which may be determined as a matter of law or fact. 30

28 Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998).

29 Nix v. Sawyer, 466 A.2d 407, 410 (Del. Super. 1983).

30 Diamond State Tel. Co. v. Univ. of Del., 269 A.2d 52, 58 (Del. 1970).

V.

Plaintiffs’ [*10] Motion and the Defendants’ response implicate the following issues, which the Court will address seriatim: (A) whether the Agreement is binding as to Jane Doe; (B) whether the Agreement is binding as to John Doe; (C) whether the pre-injury release provision renders the entire Agreement unenforceable; and, if not (D) whether the choice of law, choice of forum, and/or arbitration provisions of the Agreement are controlling.

A. Jane Doe Is Bound By The Agreement She Entered Into With Cedars On Behalf Of Her Son

[HN2] Both Delaware and California measure the formation of a contract by an objective test. 31 Specifically, a contract is formed if “a reasonable person would conclude, based on the objective manifestations of assent and the surrounding circumstances, that the parties intended to be bound to their agreement on all essential terms.” 32 At the outset, the Court notes that [HN3] it is counter-intuitive to seek enforcement of an agreement that one alleges to be invalid. Stated differently, a party cannot “simultaneously seek to avoid the contract … and at the same time sue for damages for breach of [that] contract ….” 33 And yet, this is precisely what the Plaintiffs are attempting to do in [*11] this case. 34

31 The Court has considered both Delaware and California law in construing the Agreement given the Agreement’s choice of California law. See Leeds v. First Allied Conn. Corp., 521 A.2d 1095, 1097 (Del. Ch. 1986); Founding Members of Newport Beach Country Club v. Newport Beach Country Club, Inc., 109 Cal. App. 4th 944, 955, 135 Cal. Rptr. 2d 505 (Cal. Ct. App. 2003).

32 Leeds, 521 A.2d at 1101. See also Founding Members, 109 Cal. App. 4th at 955 (“California recognizes the objective theory of contracts, under which [it] is the objective intent, as evidenced by the words of the contract, rather than the subjective intent of one of the parties, that controls interpretation.”).

33 In re Verilink Corp., 405 B.R. 356, 378 (N.D. Ala. 2009).

34 Compl. ¶¶ 21-25.

Moreover, a reasonable person would conclude that Jane Doe objectively manifested her assent to be bound by the terms of the Agreement by paying tuition to Cedars Academy as required by the Agreement and entrusting her son to the school as contemplated by the Agreement. 35 As a person with the capacity to contract, and in the absence of allegations of fraud, duress, or undue influence, Jane Doe is bound to the Agreement she signed with Cedars so that [*12] her son could attend Cedars Academy. 36

35 Compl. ¶¶ 5 and 22.

36 2 Williston on Contracts § 6:44 (4th ed.) (“Because the offeree’s action naturally indicates assent, at least in the absence of an invalidating cause such as fraud, duress, mutual mistake, or unconscionability, where an offeree signs a document it is generally held to be bound by the document’s terms, even if the offeree signs in ignorance of those terms.”). See, e.g., Indus. Am., Inc v. Fulton Indus., Inc., 285 A.2d 412, 415 (Del. 1971) (“Where an offeror requests an act in return for his promise and the act is performed, the act performed becomes the requisite overt manifestation of assent if the act is done intentionally; i.e., if there is a ‘conscious will’ to do it.”); Main Storage & Trucking Inc. v. Benco Contracting and Eng’g Inc., 89 Cal. App. 4th 1042, 1049, 107 Cal. Rptr. 2d 645 (Cal. Ct. App. 2001)( [HN4] “Every contract requires mutual assent or consent, and ordinarily one who signs an instrument which on its face is a contract is deemed to assent to all its terms.”).

B. John Doe Is Bound By The Agreement Entered Into On His Behalf By His Mother

The parties focused much of their energy on whether John Doe should be considered a third party [*13] beneficiary of the Agreement. This focus, however, misses the mark in that it ignores the realities of the relationship between parent and child. As a matter of law, and as a practical matter, John Doe, a minor, could not obtain a private boarding school education from a facility like Cedars Academy without his mother contracting for such services on his behalf. 37 As the guardian of John Doe, Jane Doe was authorized to provide for her minor son’s education in the manner she saw fit. 38

37 6 Del. C. § 2705 ( [HN5] A person does not have the capacity to contract until he or she reaches the age of majority); Cal. Fam. Code Ann. § 6700 (West 1994)(“A minor may make a contract … subject to the power of disaffirmance.”); Cal. Fam. Code Ann. § 6500 (“A minor is an individual who is under 18 years of age.”).

38 Ide v. Brown, 178 N.Y. 26, 70 N.E. 101, 102 ( N.Y.1904) (“As guardian, we assume that [father] had the power to provide for her support and maintenance during [daughter’s] minority.”); Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534-35, 45 S. Ct. 571, 69 L. Ed. 1070 (1925) (Parents have the liberty “to direct the upbringing and education of children under their control.”); Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 1565, 274 Cal. Rptr. 647 (Cal. Ct. App. 1990)(same).

To [*14] conclude that John Doe is not bound by the Agreement’s otherwise enforceable terms, as Plaintiffs contend, simply because he is a minor would be tantamount to concluding that a parent can never contract with a private school (or any other service provider) on behalf and for the benefit of her child. As a practical matter, no service provider would ever agree to a contract with a parent if a child could ignore the provisions of the contract that pertain to him without recourse. 39 Such a result is inconsistent with the law’s concept of the family which “rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.” 40 In this case, as a parent, Jane Doe was authorized to enter into the Agreement with Cedars on behalf of her minor son and to bind him to its enforceable terms.

39 For instance, in this case, Cedars reserved the right to terminate John Doe’s enrollment in Cedars Academy if he engaged in “illegal, uncontrollable, or dangerous behavior” or “for any other reason … deem[ed] necessary for the protection of [John Doe], any other student(s) or the integrity of Cedar’s program.” [*15] Agreement, ¶ 9. This provision implicitly imposes upon John Doe certain obligations to behave in an appropriate manner. If this obligation was deemed by the Court to be non-binding upon John Doe simply because he is a minor, then Cedars, in turn, would lose its authority to discharge him or any other student whose behavior justified termination from the program. No private school would ever enroll a student under such circumstances.

40 Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979).

C. Even If The Pre-Injury Release Provision Is Invalid, It is Severable and Does Not Affect The Overall Enforceability Of The Agreement

Plaintiffs argue that parents do not possess the authority to bind their children to pre-injury releases. 41 According to Plaintiffs, the pre-injury release is invalid, 42 and, therefore, John Doe should not be bound by the balance of the Agreement’s terms. 43

41 Agreement ¶ 5.

42 Pls.’ Resp. Defs.’ Letter Mem. pg. 7.

43 Pls.’ Resp. Defs.’ Mot. to Dismiss ¶ 8.

It appears that no Delaware court has specifically addressed whether parents can bind their children to a pre-injury release. Further, it appears that there is a split among those jurisdictions that have addressed the issue. 44 This [*16] Court need not weigh in on behalf of Delaware, however, because even if the pre-injury release is invalid, the presence of the provision would not render the entire Agreement unenforceable. 45 [HN6] When “determining whether a contract is divisible … the essential question … is ‘did the parties give a single assent to the whole transaction, or did they assent separately to several things?'” 46 If there is evidence that clearly shows that the parties intended to enter into an integrated contract, then the contract should be read in its entirety. 47 In this regard, Delaware courts recognize that “[t]he parties’ intent to enter into a divisible contract may be expressed in the contract directly, through a severability clause.” 48 The Agreement between the parties in this case contains a clear and unambiguous severability clause. 49 Accordingly, the invalidity of the pre-injury release would not render the remainder of the Agreement unenforceable.

44 Compare Cooper v. Aspen Skiing Co., 48 P.3d 1229 (Colo. 2002)(holding that Colorado’s public policy affords minors significant protections which preclude parents or guardians from releasing a minor’s own prospective claim for negligence); Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062 (Utah 2001)(holding [*17] that a parent cannot release a child’s causes of action against a third party before or after an injury); with Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738 (Mass. 2002)(holding that releases of liability for ordinary negligence involving private parties are valid as a general proposition in the Commonwealth and, thus, it was not contrary to the purposes of the Tort Claims Act to allow city to use releases as a precondition for student’s participation in voluntary, nonessential activities, such as cheerleading at public school activities); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201 (Ohio 1998) (Holding that mother had authority to bind her minor child to exculpatory agreement in favor of volunteers and sponsors of nonprofit soccer organization, where cause of action sounded in negligence; agreement could not be disaffirmed by child on whose behalf it was executed).

45 See McInerney v. Slights, 1988 Del. Ch. LEXIS 47, 1988 WL 34528, *7 (Del. Ch. Apr. 13, 1988)(“… where a contract as negotiated cannot be enforced by reason of a legally-recognized policy, a court should simply [imply] a severability clause in the contract if to enforce such an implied term may be done sensibly.”); Abramson v. Juniper Networks, Inc. 115 Cal. App. 4th 638, 658-59, 9 Cal. Rptr. 3d 422 (Cal. Ct. App. 2004)(“Where [*18] a contract has several distinct objects, of which one at least is lawful, and one at least is unlawful, in whole or in part, the contract is void as to the latter and valid as to the rest.”).

46 Orenstein v. Kahn, 13 Del. Ch. 376, 119 A. 444, 446 (Del. Ch. 1922) (“Although the consideration is apportioned on the face of a contract, if there be a special agreement to take the whole or nothing, or if the evidence clearly shows that such was the purpose of the parties, the contract should be entire.”).

47 Id.

48 15 Williston on Contracts § 45:6 (4th ed.). See also Evans, 872 A.2d at 552 (“Generally, a severability clause is enforceable.”).

49 Agreement ¶ 22 (“In the event that any provision of this agreement, or any operation contemplated hereunder, is found by a court of competent jurisdiction to be inconsistent with or contrary to any law, ordinance, or regulation, the latter shall be deemed to control and the Agreement shall be regarded as modified accordingly and, in any event, the remainder of this agreement shall continue in full force and effect.”).

D. The Choice of Forum Provision is Controlling

Having determined that the pre-injury release provision may be excised, the Court now turns to the balance of [*19] the Agreement to determine if any remaining provisions support the Defendants’ motion. In this regard, the Court’s attention is drawn immediately to provisions of the Agreement which suggest that the parties intended to resolve their disputes in California, not Delaware. Not surprisingly, Defendants interpret these provisions as requiring the Court to dismiss this action so that Plaintiffs’ claims may be brought in California as intended. Plaintiffs, not surprisingly, argue that the Agreement’s arbitration and choice of forum provisions do not apply here. The parties’ differing views of these provisions require the Court to interpret the Agreement and to determine in which forum this controversy belongs.

[HN7] Both Delaware and California courts honor the parol evidence rule. 50 This rule provides that “[w]hen two parties have made a contract and have expressed it in a writing to which they have both assented as to the complete and accurate integration of that contract, evidence . . . of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing.” 51 To ensure compliance with the parol evidence rule, the court first must determine [*20] whether the terms of the contract it has been asked to construe clearly state the parties’ agreement. 52 In this regard, the court must remember that a contract is not rendered ambiguous simply because the parties disagree as to the meaning of its terms. 53 “Rather, a contract is ambiguous only when the provisions in controversy are reasonably or fairly susceptible of different interpretations or may have two or more different meanings.” 54 Upon concluding that the contract clearly and unambiguously reflects the parties’ intent, the court’s interpretation of the contract must be confined to the document’s “four corners.” 55 The court will interpret the contract’s terms according to the meaning that would be ascribed to them by a reasonable third party. 56

50 See Rhone-Poulenc Basic Chem. Co. v. American Motorists Ins. Co., 616 A.2d 1192, 1196 (Del. 1992); Wolf v. Walt Disney Pictures & Television, 162 Cal. App. 4th 1107, 1126, 76 Cal. Rptr. 3d 585 (Cal. Ct. App. 2008).

51 26 Corbin on Contracts § 573 (1960).

52 Comrie v. Enterasys Networks, Inc., 837 A.2d 1, 13 (Del. Ch. 2003)(citing In Re. Explorer Pipeline Co., 781 A.2d 705, 713 (Del. Ch. 2001)); Wolf, 162 Cal. App. 4th at 1126 (“[w]hen a contract is reduced [*21] to writing, the intention of the parties is to be ascertained from the writing alone, if possible….”)(citation omitted).

53 See Rhone-Poulenc Basic Chem. Co. v. American Motorists Ins. Co., 616 A.2d 1192, 1196 (Del. 1992)(“A contract is not rendered ambiguous simply because the parties do not agree upon its proper construction.”); Curry v. Moody, 40 Cal. App. 4th 1547, 1552, 48 Cal. Rptr. 2d 627 (Cal. Ct. App. 1995)(“When the parties dispute the meaning of a contract term, the trial court’s first step is to determine whether the term is ambiguous … “).

54 Id. (citation omitted).

55 See O’Brien v. Progressive Northern, Ins. Co., 785 A.2d 281, 288-89 (Del. 2001); Wolf, 162 Cal. App.4th at 1126.

56 Comrie, 837 A.2d at 13 (citations omitted); Wolf, 162 Cal. App. 4th at 1126.

As directed by the parol evidence rule, the Court looks first to the Agreement itself (the text within the “four corners”) to determine if it unambiguously reflects the parties’ intent with respect to choice of forum. To discern the parties’ intent, the Court has utilized certain settled tenets of contract interpretation. 57 The first, and [HN8] perhaps most fundamental, tenet of contract interpretation requires the court to render a “reasonable, [*22] fair and practical” interpretation of the contract’s clear and unambiguous terms. 58 In addition, the court must be mindful that “[a] contract should be read as a whole and every part should be interpreted with reference to the whole, and if possible should be so interpreted as to give effect to its general purpose.” 59 In this regard, the court must interpret the contract “so as to conform to an evident consistent purpose” and “in a manner that makes the contract internally consistent.” 60

57 “An abstract distinction exists between ‘construction’ and ‘interpretation,’ in that ‘construction’ is the drawing of conclusions from elements known from, given in, and indicated by the language used, while ‘interpretation’ is the art of finding the true sense of the language itself ….” 17A Am. Jur. 2d Contracts §328.

58 Id. at §338.

59 Id. at §376.

60 Id.

Here, the Agreement’s choice of law and choice of forum provisions are combined in one paragraph, and together they state, in pertinent part, as follows: “This Agreement, and all matters pertaining hereto, including any matter or dispute arising between the parties out of this Agreement, tort or otherwise, shall be interpreted, governed and enforced [*23] according to the laws of the State of California; and the Parties consent and submit to the exclusive jurisdiction and venue of the California Courts … to enforce this Agreement.” 61 After reading this provision, the Court can mine only two sources of possible ambiguity in relation to the facts sub judice: (1) whether the choice of forum provision applies only to actions “to enforce the Agreement;” and, if not (2) whether Plaintiffs’ claims, including their tort claims, “aris[e] out of the Agreement” such that they implicate the choice of law and choice of forum provisions. As discussed below, neither of these phrases render the Agreement ambiguous.

61 Agreement ¶ 21.

As the Court considers whether Plaintiffs’ claims implicate the Agreement’s choice of forum provision, the Court takes notice of the placement of the semicolon to separate the choice of law and choice of forum provisions. At first glance, the semicolon might suggest an intent to separate the two provisions such that one will not modify the other. And, if the provisions are separated, one might read the choice of forum provision as applying only to actions “to enforce the Agreement.” But this reading would run counter to [*24] the theme of the entire Agreement, which is designed to ground all aspects of the parties’ relationship in California. For instance, the Agreement provides that payments, notices, and correspondence between Jane Doe and Cedars are to be mailed to a California location; 62 disputes between the parties are to be resolved by arbitration that must occur in California; and California law is to apply to all disputes between the parties, whether based in tort or contract. 63 Given the parties’ clear intent to base their relationship in California, the Court will not read the placement of a semicolon as an intent to limit the scope of the choice of forum provision. 64

62 Id. at ¶ 17.

63 Id. at ¶ 21.

64 See Reliance-Grant Elevator Equipment Corp. v. Reliance Ball-Bearing Door Hanger Co., 205 A.D. 320, 199 N.Y.S. 476, 478 (N.Y. App. Div. 1923) (“If for the comma we substitute a period, and make the phrase an independent sentence, all ambiguity will disappear, and the cancellation proviso will clearly refer to the duration of the agreement, and not to the making of extensions.”). See also 11 Williston on Contracts § 32:9 (4th ed.) (“Attention is often paid to grammar and punctuation in determining the proper interpretation [*25] of a contract, but a court will disregard both grammatical constructs and the punctuation used in the written agreement where the context of the contract shows that grammatical or punctuation errors have occurred.”); 17A Am. Jur. 2d Contracts § 365 ( [HN9] “while a court, in construing a contract, will give due force to the grammatical arrangement of the clauses, it will disregard the grammatical construction if it is at variance with the intent of the parties as indicated by the contract as a whole.”).

The semicolon issue aside, the choice of law/choice of forum paragraph, according to its terms, applies to all actions that “aris[e] out of the Agreement.” The question, then, is whether Plaintiffs’ tort and contract claims may properly be said to “aris[e] out of the Agreement.” [HN10] “Where there is a contractual relationship between the parties, a cause of action in tort may sometimes arise out of the negligent manner in which the contractual duty is performed, or out of a failure to perform such duty.” 65 The Agreement mandates that “[o]n the arrival date, [Jane Doe] shall transfer, by a Power of Attorney … temporary custody of the Student [John Doe] to Cedars ….” 66 From the moment Jane Doe [*26] dropped her son off at Cedars Academy, therefore, the school was entrusted with “duties correspondent to the role of a caregiver.” 67 All of Plaintiffs’ claims, based as they are on an alleged failure to protect John Doe while he resided in a Cedars Academy dormitory, directly involve Cedars’ contractual undertaking to care for John Doe as “temporary custod[ian].” As such, the Court is satisfied that the claims “aris[e] out of the Agreement.”

65 Eads v. Marks, 39 Cal. 2d 807, 810-11, 249 P.2d 257 (Cal.1952). See also N. Am. Chem. Co. v. Superior Court, 59 Cal. App. 4th 764, 775, 69 Cal. Rptr. 2d 466(Cal. Ct. App. 1997); Southgate Recreation & Park Dist. v. California Assn. for Park & Recreation Ins., 106 Cal. App. 4th 293, 301-02, 130 Cal. Rptr. 2d 728 (Cal. Ct. App. 2003).

66 Agreement ¶ 3.

67 People v. Toney, 76 Cal. App. 4th 618, 621-22, 90 Cal. Rptr. 2d 578 (Cal. Ct. App. 1999)(citing People v. Cochran, 62 Cal.App. 4th 826, 832, 73 Cal. Rptr. 2d 257 (Cal. Ct. App. 1998))(” The terms ‘care or custody’ do not imply a familial relationship but only a willingness to assume duties correspondent to the role of a caregiver.”).

After reviewing all of the provisions within the four corners of the Agreement, the Court concludes that the parties intended to consent to the exclusive jurisdiction [*27] of California courts or arbitration panels to litigate their claims. [HN11] When “there is a forum selection clause in a contract, even when the venue where the suit is filed is proper, the court should decline to proceed when the parties freely agreed that litigation should be conducted in another forum.” 68 Unless the forum selection clause “is shown by the resisting party to be unreasonable under the circumstances,” such clauses are prima facie valid. 69 A choice of forum provision will be deemed “unreasonable” only when its enforcement would seriously impair the plaintiff’s ability to pursue its cause of action.” 70 Mere inconvenience or additional expense is not sufficient evidence of unreasonableness. 71

68 Eisenmann Corp. v. Gen. Motors Corp., 2000 Del. Super. LEXIS 25, 2000 WL 140781, *7 (Del. Super. Jan. 28, 2000) (citing Elia Corp. v. Paul N. Howard Co., 391 A.2d 214, 216 (Del. Super. 1978)).

69 Id. (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972)). Defendants have argued that the forum selection provision should be enforced if California has a “material connection” to the controversy. This inquiry is implicated by a choice of law analysis, but not by a choice of forum analysis. See Weil v. Morgan Stanley DW, Inc., 877 A.2d 1024 (Del. Ch. 2005).

70 Id.

71 Elia Corp., 391 A.2d at 216.

Other [*28] than arguing that the Agreement is invalid in its entirety because it is unconscionable, Plaintiffs do not provide any support for their contention that the Court should ignore the forum selection clause. 72 They have not, for instance, pointed to any circumstance that would suggest that litigating their claims in California “would seriously impair [their] ability to pursue [their] cause of action.” 73 Having determined that the Agreement is valid and enforceable as to both Jane Doe and John Doe, the Court is left with no basis in fact or law to suggest that the forum selection clause seriously impairs the Plaintiffs’ ability to pursue their cause of action. 74 Accordingly, given the well settled law [HN12] in Delaware that choice of forum provisions are enforceable absent a showing of unreasonableness, the Court must enforce the provision here and decline to exercise jurisdiction in this matter.

72 Beyond the pre-injury release provision, Plaintiffs have pointed to nothing in the Agreement to support an unconscionability argument, and the Court has discerned no basis for the argument on its own.

73 Eisenmann Corp., 2000 Del. Super. LEXIS 25, 2000 WL 140781 at 7 (citing M/S Bremen, 407 U.S. 1 at 10, 92 S. Ct. 1907, 32 L. Ed. 2d 513).

74 Here again, Plaintiffs [*29] have not argued that their ability to pursue their claims in California would be “seriously impaired,” e.g. by virtue of a statute of limitations that would bar their claims there or otherwise, and the Court can fathom no reason why the identical claims sub judice could not be raised in California.

Since the Court has determined that it should decline to exercise its jurisdiction over this dispute for the reasons set forth above, the Court need not decide the validity of the mandatory arbitration provision, nor whether Aspen should be dismissed based upon a lack of personal jurisdiction. These questions will be left to the California forum (be it a court or arbitration panel) that ultimately decides this case.

VI.

Based on the foregoing, Defendants’ Motion to Dismiss is hereby GRANTED.

IT IS SO ORDERED.

/s/ Joseph R. Slights, III

Joseph R. Slights, III, Judge


Is there a duty to notify parents when an investigation is being conducted by the state to protect campers?

Camp Illahee Investors, Inc., v. Blackman, 870 So. 2d 80; 2003 Fla. App. LEXIS 17549; 28 Fla. L. Weekly D 2672

Parents claim the camp was negligent in not informing them the state department of social services was going to or had interviewed their kids.

The problem is the case does not answer the question. This again, is a jurisdiction and venue motion that was appealed. The defendant camp was located in North Carolina. The plaintiffs were Florida’s residents. The only contact the camp had with Florida was 22% of its campers came from Florida, and one of the owners would spend a week in Florida every year drumming up business for the next summer.

The initial allegations giving rise to the litigation are very interesting. The plaintiff’s claim, the camp and the owners were negligent because the:

…Defendants had a duty, after being informed that the North Carolina County Department of Social Services desired to interview the Plaintiffs’ minor children, to notify the Plaintiffs of the fact that the minor children were to be interviewed by the North Carolina County Department of Social Services about possible child abuse….

There was a second allegation that a junior counselor had injured one of the plaintiff’s when he stepped on her feet. (Where they dancing?) This claim was not resolved in this appeal either.

Summary of the case

The plaintiff’s sued in Florida, and the defendants moved to dismiss. The trial court did not dismiss for lack of jurisdiction, and the defendants appealed. The defendants argued that they were:

…not subject to the jurisdiction of a Florida court and, even if jurisdiction existed in Florida, that North Carolina was an adequate alternative forum. Camp Illahee further argued that it was immune from suit under North Carolina law and that Florida’s impact rule required dismissal.

To support their argument the defendant must show the facts that prove their allegations. That is usually done by affidavits of the defendants and possibly others to prove the issue, or really, the lack of contact with the state.

Camp Illahee is a North Carolina corporation; the summer camp is located in North Carolina; Camp Illahee has no offices in Florida; it has no employees in Florida, although some of the employees who work at the camp during the summer are from Florida; Camp Illahee does no advertising in Florida by newspapers, radio, or television, but it has a one and one-half page posting on its internet website advising of “fall reunion and video shows.”

The court must then look at the State Long Arm Statute to determine if the facts make the defendant subject to the jurisdiction of the court. Under Florida’s law that analysis is:

…whether (1) there are sufficient jurisdictional facts to bring the action within the purview of the long-arm statute; and (2) the nonresident defendant involved has sufficient minimum contacts with Florida to satisfy constitutional due process requirements.

The Florida Long Arm Statute sets forth the minimum requirements to establish jurisdiction over out of state parties.

Section 48.193(1)(a)

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:

(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.

Section 48.193(2):

A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.

The court then applies the information presented by the parties to the requirements of the statutes to see if the defendant has the necessary minimum contacts with the state to be sued in that state and subject to the laws of that state.

So Now What?

The trend from the courts is to allow you to be brought into distant states and their judicial system. This case is a rarity. This is another example of where the agreement between the camp and the parents or any parties to any outdoor recreation, should agree in advance to where any litigation will be developed.

As far as notifying parents of an interview by social services for possible child abuse, I think I would always lean towards notifying the parents. In fact, I think I would notify the parents immediately. A parent must believe that their child is safe. Whether the child is safe is put into question, if social services is investigating your camp.

This may be a PR nightmare or disaster for any camp or program dealing with minors. You will need to make sure you bring in PR professionals and probably your attorney if this situation arises.

You should also set up a program and working relationship where anyone can come and talk to you about problems. Hopefully, before social services had been called, you are on top of the issue and have dealt with it.

What do you think? Leave a comment.

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ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp

This case shows how standards, written by a great organization with good intentions can be used to help, encourage and support lawsuits against its own members.

This case was settled, but it is full of information that everyone who may be a defendant needs to understand.
This case was started by a woman, the plaintiff, more than five years after she had spent a couple of weeks at a summer camp. She was not a camper nor was she working at the camp. She had been invited out by a staff member to give her a break from home. Allegedly, she was (consensually although there may have been statutory issues) sexually assaulted by an older staff member. She sued the staff member and the camp.

The plaintiff, to support her position, hired an expert witness. This is a common practice to support a claim. The expert witness’s job is to prove the defendant camp had acted in violation of the standard of care for camps. The plaintiff’s expert was an ACA standards visitor. The Expert Opinion by the ACA standards visitor was used in the plaintiff’s motion to support a claim that the defendant Camps actions warranted an award of Punitive Damages.

Punitive damages, are damages awarded by the jury above and beyond actual or compensatory damages. The damages are meant to punish the defendant. Punitive damages are not covered by insurance, are not dischargeable in bankruptcy and are in addition to any other damages. The defendant must pay punitive damages, if awarded, no matter what. Consequently, if the court approves the motion to ask for punitive damages in a case, it almost always forces the defendant to settle for fear of having to pay money out of their own pocket. The facts are never thoroughly litigated because they fear of the punitive is overriding. Even if you are 100% right, you may still settle in if punitive damages is a real threat.

The expert for the plaintiff (no relationship to me) was listed as an expert because she was an American Camp Association Accreditation Standards visitor. The experts Resume listed her ACA membership and her ACA Associate Visitor status second only to her education. The “Standards” allegedly violated were the 1998 ACA Accreditation Standards for Camp Programs and Services.

The expert opinion listed five areas that the camp had violated the standard of care for camps. Those areas are listed in the report as Opinion 1 through 5. ACA standards were used to support the expert’s opinion in three of the violations.

The first opinion rendered was the defendant camp violated the then ACA Accreditation Standards – HR-10. HR-10 states no camp staff member is to be under 16 years of age. The plaintiff at the time she was visiting camp was 14.

The first issue is the standard was applied to a fact situation that really had nothing to do with the claim. However, because there was a standard that could be linked to the claim, no matter how remote, the standard was alleged to be violated by the defendant. The plaintiff in this case was not a camp staff member, was not a volunteer, and was not getting paid. She was there for a break from her family. Nevertheless, the standard was applied to show the defendant camp should be held liable for punitive damages.

The second issue is the standard created by the trade association that the camp was a member of, was used to show the camp was negligent. That is just wrong!

Opinion 4 stated that 4 ACA Camp Standards were violated:

HR-11 requires six days of pre-camp staff training of employees.

HR-12 required late hire training for employees.

HR-13 requires implementation of in-service training for employees.

HR-19 requires specific training for staff supervisors to maintain staff performance and address inappropriate staff behavior.

The plaintiff had not received any training. I’ve never seen a camp train any visitor. (Although I’m sure you wish you could sometimes!)

All four “Standards” were violated because the plaintiff did not receive any of the training required by the ACA “Standards”. Again, visitors to camp need to go through training? Late hire camp staff training? Hire usually means someone is employed, consequently, paid, which never occurred here.

Opinion No. 5 stated the defendant camp violated ACA Standard HW-19 and ACA Standard HW-20 on the proper system of health care camp record keeping. This was alleged because a cut the plaintiff received was not recorded in the nurse’s log.

What is so interesting about this issue was there was no allegation that the cut the plaintiff had received was received or treated negligently. Nothing in the lawsuit claimed the way the plaintiff received the cut, the first aid or treatment was negligent. The complaint just stated she received a cut and was taken home by her parents. The suit claimed that an older camp staff employee had sexual relations with the plaintiff.

However, this is a perfect example of how plaintiffs use any violation of the standard, whether or not it has anything to do with the claim, to make the defendant look bad in the eyes of the court and the jury. Good defendants do not violate standards. Here the defendant was obviously bad because the standard was not met.

There is no way that any camp can operate and not violate one of the “Standards” at some time during the camp season! 1998 there were just too many of them. In 2011 there are even more.
 
To support the allegations made in the plaintiff’s expert report copies of the “Standards” were attached to the report. The following pages were attached to the report:

Cover Page
Title Page
Table of Contents vii
Table of Contents viii
Page 92 HR-10 Staff Age Requirements
Page 93 continuation of HR-10 and HR-11
Page 94 continuation of HR-11, HR-12 and HR-13
Page 97 HR-18 and HR-19
Page 98 continuation of HR-19 and HR-20
Page 67 HW-19 Recordkeeping
Page 68 HW-20 and HW-21

Why only those pages? Because those are the important pages the plaintiff wants the judge to see. There are limits to how big motions can be how many pages the judge will read, pages, etc. Those are all valid arguments and are real for only putting in the important documents as exhibits.

However “standards” are written with disclaimers and limitations and definitions, none of which are ever given to the court. The court is never shown that there may be limitations to what the “Standards” mean or how they are applied.

Even if those were supplied, the court must apply the definitions that are in the statute or by law first and then as used in the community or industry second. See Words: You cannot change a legal definition.

Trade Associations write standards with the mistaken believe that the plaintiff’s experts and the court will apply the standards exactly the way the standards are intended to be written. The facts are once the standards are printed the trade association loses all control no matter how many pages of disclaimers are put in the information.

So the judge in this case, who is pressed for time, reads the report and has a list of standards that are violated. A standard is the optimum word. The camp was below the minimum level of acting or not acting that was set by the camps own trade association. That is all that is needed to keep the case moving forward. Standards were violated. Therefore, there may be negligence. That must go to a jury, there must be a trial and the cost to the defendant (and its insurance company) climbs even higher. (Consequently, your premiums increase also. See Insurance 101 if you don’t fully understand this.)

Even if the additional documentation is put into evidence, the legal definition of the words is going to be used, not how the word is defined in the standards book. See Words: You cannot change a legal definition.

Nor does the court have the opportunity to delve into the standards to find out that most of them are not really standards but suggestions, ideas or just good practices. However, by identifying the book as standard there is a legal definition applied to the work that is just as dangerous as it may be helpful.

Some might say that if the camp was bad then lawsuits get rid of bad camps (or other defendants). However, that never works. This camp did not close up. In fact, in my opinion, this camp was sued because it tried to help out a confused young woman. The end effect is there will be no more attempts to help anyone in the future.

The only real consequence of this lawsuit was the amount of time that spent working on the case. Some money might have moved between the parties, and the attorneys and expert witnesses made money.

Let’s look at the opinion no 1 of the plaintiff’s expert witness. The standard says that employees should not be under the age of 16. Most camps are run by families. Many times there may be two or three generations at the camp. If a staff member sends their 15 year old son to the tool shed to get a tool and in the process the son accidentally knocks over a camper, injuring the camper, the camp has violated that standard. No 16 year olds should be hired by a camp. However, he wasn’t hired. Well, we’ve seen how that does not work, and he was working, providing a benefit for the camp.

The camp has a couple of options.

1. Not allow their children at camp until they are 16.

2. Violate the standard.

You are going to take your kids to camp and have them play video games and watch TV or are you going to put them to work. If you put them to work before they reach the age of 16 you are violating a standard created by a trade association for your benefit.

Say you are an organization that works to install leadership, training and teamwork into the youth. It is common in your organization for the youth to be responsible for other members. (Sound like any organization you know?) Your camps are staffed predominantly by youth because of the training and goals of the organization. Every single one of those camps is in violation of the standard HR-10 (as it was in 1998).
If your youth organization is focused in leadership training and does that by helping youth move up to more advanced and important leadership positions, the entire program will fail if you say to the 14 year olds, wait two years until you turn 16 to move up to the next level, camp staff.

These are just two scenarios where the standard set forth in HR-10 (which is almost identical in the latest version) can be used to sue a camp every single day of the year. However, in both scenarios, nothing has been done wrong other than taking your kid to work and following your youth program guidelines.

Are all standards bad? No, standards for things are great. Concrete “acts” the same way every day. A fight with a spouse, traffic on the way to work, rain, none of this affects concrete. It is going to support XX thousands of pounds of weight. Standards for things work. People and how people operate are subject to millions of things, weather and other people. We don’t’ react the same way. We aren’t affected the same way. We don’t respond the same way, who can you write something down that says we will, no matter what.

For other articles about standards see:

This is how a standard in the industry changes…..but….

Can a Standard Impede Inventions?

Playgrounds will be flat soon

Words: You cannot change a legal definition

Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent

The motion where the expert witness’ report was filed is here.

What do you think? Leave a comment.

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This is how a standard in the industry changes

It moves up because the best get better.

Many people believe that the standards of an industry change three basic ways.

#985 Airport not in Japan

#985 Airport not in Japan (Photo credit: Nemo's great uncle)

1.)    The entire industry gets better.

2.)    The bottom, or worst part of the industry gets better; or

3.)    Written standards are created that makes the industry get better.

All three are incorrect. (The third belief serves the opposite effect and usually promotes lawsuits.)

Standards change when the best get better and move the standard in the industry upward. It was recently reported that the Boy Scouts of America purchased AED’s for all of its offices and camps. That is an example of the standard changing for camps. It may not affect the youth the camps are designed and run for, however it will affect the adults at the camp.

Has this changed the standard of care for adults and visitors at camps?

In this case we have the largest promoter of camping in the US with 4 million members and more than 300 offices and close to 400 camps putting AED’s in their camps. This is a major move on the part of the industry. A significant, as measured by numbers or percentages of the industry now has AED’s at their camps.

If other youth camps, either based on this, or on their own start installing AED’s as their camps the standard in the industry is shifting towards or requiring having AED’s in camps.

The standard changed.

What do you think? Leave a comment.

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History of the Boy Scouts of America

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