Loosier v. Youth Baseball and Softball, Inc., 142 Ill. App. 3d 313, 491 N.E.2d 933, 1986 Ill. App. LEXIS 2062, 96 Ill. Dec. 654

Loosier v. Youth Baseball & Softball, Inc., 142 Ill. App. 3d 313, 491 N.E.2d 933, 1986 Ill. App. LEXIS 2062, 96 Ill. Dec. 654

Appellate Court of Illinois, Fifth District

April 11, 1986, Filed

No. 5-84-0640

Counsel: Carroll L. Owens, of Benton, for appellant.

Feirich, Schoen, Mager, Green & Associates, of Carbondale, for appellee.

Judges: PRESIDING JUSTICE KASSERMAN delivered the opinion of the court. KARNS, J., concurs. JUSTICE HARRISON, specially concurring.

Opinion by: KASSERMAN

Opinion

 [*313] 
 [**934] 
 [****655]  This cause of action arose out of personal injuries suffered by the minor plaintiff when he was struck by a truck while trying to cross Interstate Route 57 west of Benton. Plaintiff filed suit alleging that  [*314]  defendant was negligent in that it was guilty of a breach of a duty owed the plaintiff to supervise, watch over, and care for the plaintiff while the plaintiff was selling baseball raffle tickets.

The defendant, Youth Baseball and Softball, Inc., is a not-for-profit organization which raises funds through raffle ticket sales. Each year prizes are given to the baseball participants who sell the most raffle tickets. The minor plaintiff, Jimmy Loosier, was a member of a baseball team which was under the supervision of the [***2]  defendant’s summer baseball program. Members of the baseball team participated voluntarily with their parents’ permission in the sale of raffle tickets to give away a new automobile as a means of financing the costs of the baseball program.

The raffle tickets were issued to the coaches who then issued tickets to the players to be sold by them. The tickets were initially distributed in lots of 10 to each child by the team coach. After the children sold their initial 10 tickets, they could get more tickets only with their parents’ permission. After the initial 10 tickets were issued to a child, Youth Baseball did not issue any more tickets to the children but, rather, gave them to the children’s parents when their parents asked for additional tickets. Selling the raffle tickets was purely the voluntary decision of each child and his parents. If a child did not participate in the fund-raising activities, the child lost no privileges.

Youth Baseball warned the children, upon distributing the initial 10 raffle tickets to each child who participated, not to sell them by themselves and not to go out without their parents’ permission. Although some individual coaches took their baseball [***3]  players out to sell tickets periodically, it was understood that the overall duty of supervision lay with the child’s parents and not with Youth Baseball.

The plaintiff, Jimmy Loosier, was 11 years old at the time of his injury on July 22, 1982. He had been selling raffle tickets for the youth Baseball program for four years when the accident occurred. When Loosier first began selling raffle tickets his mother warned him about places he should not go, people he should not sell to, and streets and highways he should avoid. She had instructed him to stop, look and listen when crossing streets. The minor plaintiff had also been instructed in safety on highway crossing at school.

On July 22, 1982, plaintiff went to the Wal-Mart store, which was approximately  [**935] 
 [****656]  two miles from his home and across Interstate Route 57, west of Benton. Prior to the accident, Jimmy Loosier had gone to the shopping mall where the Wal-Mart store is located on his own or with his friends 10 to 20 times in order to sell raffle tickets or just to “goof off.” The majority of the times the plaintiff had gone to Wal-Mart  [*315]  to sell tickets, he had gone without adult supervision.  [***4]  Jimmy’s mother knew when he went out to the mall by himself or with his friends and that there was no adult with them.

On the particular day the plaintiff was injured while crossing Interstate Route 57, he informed his mother he was going to Wal-Mart to sell raffle tickets. However another reason plaintiff wanted to go to Wal-Mart that day was to simply “get out of the house” because he was bored. Mrs. Loosier saw that Jimmy had his little black bag with the tickets when he left the house. She knew that Youth Baseball was not providing people to accompany her son whenever he went to sell tickets; yet, she permitted him to sell the tickets anyway.

After arriving at the mall the plaintiff sold seven or eight tickets. Then Johnny Hines and some other kids asked Loosier to steal a “hot wheels car” from Wal-Mart. When Loosier refused, they said they were going to “beat the heck out” of plaintiff if he didn’t. Loosier then left Wal-Mart. While he was standing out in the parking lot, Loosier saw the other kids coming outside so he began running. As he was running, he could see Hines and the other children following him on bikes. Loosier ran toward Interstate 57 and made it safely [***5]  across the southbound lanes of the interstate. When he was in the middle of the northbound portion of the interstate, he saw a semi-truck approaching. He slid and then started to scoot back up and the truck ran over his leg.

The plaintiff alleges that Youth Baseball owed a duty of supervision to him at the time and occasion of his injury. The trial court granted defendant’s motion for summary judgment, finding that Youth Baseball owed no duty to Loosier under the circumstances because the injuries to Loosier did not arise out of a time in which raffle tickets were being sold due to the fact that the sale of tickets had effectively been terminated prior to the activity which led to the plaintiff’s injuries. Plaintiff appealed from that portion of the trial court’s order. The trial court further held that the complaint stated a cause of action in that Youth Baseball had a duty to provide supervision for raffle ticket sales. Youth Baseball cross-appealed from this portion of the trial court’s order.

The first issue we must determine is whether the trial court appropriately granted defendant’s motion for summary judgment on the grounds that Youth Baseball had no duty to exercise [***6]  ordinary care for Loosier under the circumstances of the instant case.

It is fundamental that HN1[] there can be no recovery in tort for negligence unless the defendant has committed a breach of duty owed to the plaintiff. Whether under the facts of a given case, such a relationship  [*316]  exists between the parties so as to require a legal obligation be imposed upon one for the benefit of another is a question of law to be determined by the court. ( Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1045, 462 N.E.2d 502, 505.) In the absence of any showing upon which the court could infer the existence of a duty, no recovery is possible as a matter of law and summary judgment in favor of the defendant is proper. Keller v. Mols (1984), 129 Ill. App. 3d 208, 210, 472 N.E.2d 161, 163.

Whether the law imposes a duty upon a defendant for injuries to a plaintiff does not depend upon the factor of foreseeability alone but rather the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden upon the defendant must also be taken into account. (Cf. Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231, 233.)  [***7]  In the case at bar the same standard applies for imposition of a legal duty which we set forth in Zimmermann.  [**936] 
 [****657]  As we noted in Zimmermann, the existence of a legal duty is not dependent on the factor of foreseeability but requires consideration of public policy and social requirements. ( Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1047, 462 N.E.2d 502, 506.) In Zimmermann we stated as follows:

HN2[] “Whether a defendant should have ‘foreseen’ harm to a party injured is the test to be used by a jury in determining negligence. ‘Foreseeability’ enters into the negligence format only after the court has concluded that, at the time of the occurrence in question, the defendant was under a duty to guard against injury to the plaintiff.” 122 Ill. App. 3d 1042, 1048, 462 N.E.2d 502, 507.

Continuing, we stated further:

“‘The duty issue, being one of law, is broad in its implication; the negligence issue is confined to the particular case and has no implications for other cases. There are many factors other than foreseeability that may condition a judge’s imposing or not imposing a duty in the particular case, but the only factors for [***8]  the jury to consider in determining the negligence issue are expressed in the foreseeability formula.’ Green, Foreseeability in Negligence Law, 61 Colum. L. Rev. 1401, 1417-18.” ( Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1048, 462 N.E.2d 502, 507, citing Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E. 2d 307.)

In Zimmermann we clarified the role of “foreseeability of harm” and the fact that it enters the negligence format only after the court determines that at the time of the occurrence in question there existed  [*317]  a duty on the part of the defendant to guard against injury to plaintiff. We additionally analyzed the policy basis of duty in Zimmermann. Quoting from Professor Prosser regarding the policy foundation of duty, we stated:

HN3[] “‘”[D]uty” is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say the particular plaintiff is entitled to protection.

* * *

[T]he courts have merely ‘reacted to the situation in the way in which the great mass of mankind customarily react,’ and that as our ideas of human relations change the law as to duties has changed with [***9]  them. Various factors undoubtedly have been given conscious or unconscious weight, including convenience of administration, capacity of the parties to bear the loss, a policy of preventing future injuries, the moral blame attached to the wrongdoer, and many others. Changing social conditions lead constantly to the recognition of new duties. No better general statement can be made, than that the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists.’ (Prosser, Torts sec. 54, at 326-27 (4th ed. 1971).)” 122 Ill. App. 3d 1042, 1053, 462 N.E.2d 502, 510.

Using the foregoing analysis which we set forth in Zimmermann as our guide, we turn to the consideration of the issue of whether Youth Baseball owed a duty to Loosier to protect him from injury at all times when he might sell a raffle ticket or be enroute to sell a raffle ticket. Consideration of this issue depends on public policy considerations and not merely foreseeability as we noted in Zimmermann.

To the extent that public policy enters into the analysis, no reasons sounding in public policy would require that a duty of continuous protection be imposed. Youth Baseball [***10]  provides a service to the community by sponsoring sports activities for young people without charge and it raises money for these activities by the sale of raffle tickets by its members on a voluntary basis. The sale of tickets is done only with parental permission. Ticket sales are made by the players at times other than when they are under the supervision of the coaches on the playing field. In fact, the ticket sales are made by the youths who participate in the program at any time when they are not either playing or practicing.  [**937] 
 [****658]  We find that public policy does not require that citizens, who do volunteer work in coaching baseball and softball teams, provide supervision of all team members at the time when a team member is engaged in the activity of selling a raffle ticket. We find that the contrary is dictated by public policy, because  [*318]  such a requirement would impose an unreasonable burden upon those who operate and sponsor the Youth Baseball program.

While defendant has a duty to supervise the activity of baseball and softball games while the players are on the field actively participating in the sport and entrusted by their parents to their [***11]  coaches, we are unwilling to conclude that they are required to supervise those same players at any hour of the day or night when they might decide to sell a raffle ticket while they are under the care of their parents. Under the circumstances of the case at bar, public policy is best served by placing the burden of the care of the children upon their parents who permit them to participate in the raffle ticket sales. In the case at bar, we find that the care and control of the minor was with his parents. At the time of the accident the care of the minor had not been entrusted to youth Baseball. Loosier was selling tickets with the consent of his parents. He had gone to the shopping center with his friends with his mother’s permission to sell tickets which were obtained from the defendant by his father. The only involvement of Youth Baseball was that it had provided the tickets that Loosier was selling with the permission of and while in the care of his parents. Under these circumstances, we find that Youth Baseball had no duty of supervision and affirm the trial court’s entry of summary judgment in defendant’s favor.

As an aside, we note that if foreseeability were to play [***12]  a rule in the determination of duty, it is not reasonable or likely that a boy going to a shopping center with his teammates to sell raffle tickets will be requested by one of those teammates to steal from the store in which they are selling tickets; that when he refuses his teammates will threaten to beat him for not stealing; that his teammates will then chase him; and that in the chase he will run across an interstate highway and be struck by a truck. We find that the likelihood of such an occurrence was not even remotely foreseeable.

In addition to finding that Youth Baseball owed no duty to Loosier under the circumstances of this case, resulting in the entry of a summary judgment in defendant’s favor, the trial court further found that Youth Baseball owed a duty to Loosier to provide supervision of raffle ticket sales, even though it did not define under what circumstances such a duty would exist. Defendant Youth Baseball cross-appealed from this portion of the trial court’s order.

The defendant points out that the single issue before the trial court in the Motion for Summary Judgment was: “Did Youth Baseball owe a duty to Loosier to take measures to protect him from the injury [***13]  he received as a result of the described occurrence?” The trial  [*319]  court determined the answer to that question was no. The defendant notes however that in its order the court seemed to indicate that there would be some other circumstances when the plaintiff would be actively engaged in the sale of tickets under which a duty would be owed. We agree with the defendant that this finding of the trial court was erroneous inasmuch as it did not define under what circumstances such a duty would exist. HN4[] Liability for negligence is predicated upon the requirement that a defendant use reasonable and ordinary care to protect a plaintiff under the circumstances in question. ( Sims v. Chicago Transit Authority (1954), 4 Ill. 2d 60, 122 N.E.2d 221.) As we noted in Zimmermann, the courts in Illinois frequently have been called upon in negligence cases to determine whether a duty exists under the specific facts presented. ( Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1046, 462 N.E.2d 502, 505-06.) HN5[] Although the issue regarding duty is broad in its implication, a duty, when created as a matter of law, is required to have a particular set of  [**938] 
 [****659] 
 [***14]  circumstances as a basis for its creation. In the case at bar, the trial court held that there may be some other circumstances under which the plaintiff would be actively engaged in the sale of tickets under which a duty would be owed by the defendant. We conclude that such portion of the trial court’s order is erroneous inasmuch as the court appears to hold that a duty to use due care may arise under circumstances not presented to it for determination.

Concluding, we find that the trial court appropriately found that Youth Baseball owed no duty to exercise ordinary care for the plaintiff under the circumstances of the case at bar; consequently, that portion of the trial court’s order is affirmed. Furthermore, we reverse that portion of the trial court’s order which denied defendant’s motion to dismiss plaintiff’s complaint inasmuch as it was not based upon circumstances present in the case at bar.

Affirmed in part, reversed in part.

Concur by: HARRISON

Concur

JUSTICE HARRISON, specially concurring.

Although I agree with the result reached in the majority opinion, I cannot accept the majority’s unwillingness to recognize the relevance of foreseeability regarding the duty question for [***15]  the reasons discussed in the dissenting opinion in Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1054-56, 462 N.E.2d 502, 511-12 (Harrison, J., dissenting).


New York Summer Camp cases are examples of helicopter parenting; I gave you a perfect child, and no injuries shall occur to my child in your care, if one occurs, I will sue.

A minor at a Scout camp runs out of a shower house and falls down. The parents sue for his injuries claiming he was not supervised. At the same time, the BSA Youth Protection Training prevented adults in showers with youth. The court in this case realized the absurdity of the plaintiff’s claims and held for the defendants.

Gomes v. Boy Scouts of America, et al., 51 Misc. 3d 1206(A); 2016 N.Y. Misc. LEXIS 1088; 2016 NY Slip Op 50444(U)

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

Plaintiff: Davide E. Gomes

Defendant: Northern New Jersey Council, Inc., Boy Scouts of America (Council) and Boy Scout Troop 141 (troop)

Plaintiff Claims: negligent supervision

Defendant Defenses: assumption of the risk, no duty

Holding: for the defendants

Year: 2016

The thirteen-year-old  plaintiff was a Boy Scout. He and his troop from New Jersey were at a Scout Camp in the Adirondacks of New York for a canoe trip. While at the camp, the youth walked a few minutes to a bath house. While in the bath house, the plaintiff was fooling around and ran out of the bath house and fell suffering a head injury.

According to plaintiff, the main purpose of the trip to Floodwood was to take a 15-mile canoe trip. On the day of the accident, the scouts and the Troop leaders spent time outside in their campsite within the camp, where “there was a little bit of horsing around,” “a little bit of pushing, playing around,” and all of the scouts were pushing and shoving each other during and after a game of touch football, which the leaders told them to stop. As he walked to the shower house the night of his accident, plaintiff wore a functioning headlamp; the area around the shower house was dark. He does not recall what happened from the time the group walked to the shower house to when he regained consciousness on the ground, bleeding from his head.

The plaintiff does not remember the incidence.

Other Scouts at the shower house reported the incident this way.

It is undisputed that other scouts reported that while they were in the shower house, plaintiff took a water pump from the wall and squirted water on them. When one of the scouts told him to stop, plaintiff ran out of the shower house and fell to the ground. None of the scouts knew what had caused the fall.

The plaintiff had been in Scouting since he was 9. He participated  in monthly camp outs with his scout troop.

The plaintiffs brought claims against the troop, the New Jersey Boy Scout council where the troop was chartered and who owned the camp and the Boy Scouts of America and the individual unit leaders.

The claims where the youth were not properly supervised, and the area around the shower house were full of roots, sticks, rocks, etc.

One issue that runs throughout the decision which is not explained is the BSA Youth Protection Program. The program requires youth to always do things in groups or at least two and prohibit adults from actively being in a position where they can observe the youth in the shower.  Even if an adult was with the youth, there would have to be two adults.

This program was put in place to protect both the youth and the adults in the Scouting program.

Another issue in this case is the camp was located in New York. The New York State Department of Health (DOH) had massive and strict rules for children’s camps and substantial ability to issue sanctions for violations of those rules. Some of those rules violate or make conforming to the BSA Youth Protection Program difficult.

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

The court first looked at the New York State Department of Health (DOH) rules concerning this case.

As pertinent here, the regulations require adequate supervision, and that “as a minimum . . . there shall exist visual or verbal communications capabilities between camper and counselor during activities and a method of accounting for the camper’s whereabouts at all times.”

The council had a written plan to confirm to the DOH rules.

Council’s written plan for Floodwood requires that supervision of campers “be maintained for the duration (24/7) of their stay at the camp.” Council’s Leaders Guide for Floodwood provides that “running and horseplay have no place at Scout Camps,” and all scout units must have two adult leaders with the unit at all times.

DOH did find issues with the camp’s plan. The Camp and DOH reached a settlement on those issues. However, by law the information and the settlement cannot be entered into evidence in court.

DOH investigated the incident, after which it and Council entered into a stipulation providing that DOH had alleged that Council had violated various camp regulations, including those relating to the supervision of scouts, and that the parties were thereby settling the matter by Council agreeing not to contest it, paying a fine, and submitting a revised camp safety plan. Additionally, by its terms, the stipulation is

not intended for use in any other forum, tribunal or court, including any civil or criminal proceeding in which the issues or burden of proof may differ, and is made without prejudice to [Council’s] rights, defenses and/or claims in any other matter, proceeding, action, hearing or litigation not involving [DOH] [and] is not intended to be dispositive of any allegations of negligence that may be made in a civil action for monetary damages.

The DOH requires that after any incident, a form be completed. In this case, the form was completed by a camp staffer who had no training in completing the form and had never completed a form before. DOH requires that after any incident a form be completed. In this case the form was completed by a camp staffer who had no training in completing the form and had never completed a form before.

Richard Saunders testified at an EBT that at the time of plaintiff’s accident, he was 18 years old and employed at Floodwood as a camp health officer. He described Floodwood as a “high-adventure base” for scouts older than 13 to do back-country exploring. After the accident, he completed a form as required by the DOH, on which he noted, under the category “Supervision During Incident,” that the “activity was inadequately addressed in the written plan,” by which he intended to convey that he had reviewed the scout’s written plan for the trip and saw nothing therein related to super-vision of the scouts while in the shower house. He also wrote that no camp staff was present when the accident occurred. Although Saunders had first written that the supervision was “adequate,” he changed it to “inadequate” based on the absence of an adult when plaintiff was injured. Saunders had never before filled out such a form, nor was it part of his job.

The plaintiff argued that because he was unable to remember the accident, a relaxed standard of care applied to the plaintiff’s case.

Plaintiff argues that his inability to remember the accident permits a relaxed standard of proof on summary judgment, and contends that there are two possible explanations for his accident: (1) that he was struck over the head with a blunt object by a fellow scout, or (2) that he tripped and fell while running over the uneven and non-illuminated area around the shower house, and that in either scenario, the accident would not have happened if defendants had adequately supervised that night.

The court found issues with this.

A plaintiff who, due to a failure of memory, cannot describe what led to his injury is not held to as high a degree of proof on his or her cause of action.

However, even when a plaintiff suffers from amnesia, he is not relieved of the obligation to provide “some proof from which negligence can be reasonably inferred.”

The court then looked at the duty owed by the defendants.

A “summer camp is duty-bound to supervise its campers as would a parent of ordinary prudence in comparable circumstances” And, while the degree of supervision required depends on the surrounding circumstances, “constant supervision in a camp setting is neither feasible nor desirable.”

The New York requirement for supervision allowed for reality in not requiring constant supervision. The court then looked at the applicable standard of care.

The standard for determining whether a duty to supervise a minor has been breached is “whether a parent of ordinary prudence placed in the identical situation and armed with the same information would invariably have provided greater supervision.”

Moreover, this standard requires prior knowledge on the part of the camp of dangerous conduct.

Moreover, “in determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow [campers], it must be established that [camp] authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury, that is, that the third-party acts could reasonably have been anticipated.”

Lack of supervision alone is not enough to create a cause of action. The court found the supervision was adequate. The scouts walked to the shower house as a group without incident. Until the plaintiff started horsing around, there were no supervision issues.

The court then looked at why kids go to camps and how parents should deal with those issues.

Moreover, a parent who permits his or her child to attend an overnight camping trip in the woods where the child will be taught skills related to understanding and surviving outdoor conditions, is presumably aware of the hazards and risks of injury associated with such conditions, and it would be illogical for that same parent to require or believe it necessary for the child to be escorted personally to and from every area within the camp. Such a degree of supervision “in a camp setting is neither feasible nor desirable” and camps “cannot reasonably be expected to continuously supervise and control all of [the campers] movements and activities”

Quoting another case the court stated:

The Court observed that ” [r]emembering that this is a Summer camp, it will be seen that constant supervision is not feasible . . . Nor is it desirable. One of the benefits of such an institution is to inculcate self-reliance in the campers which an overly protective supervision would destroy.”

The DOH report was also dismissed by the court because the person who had completed the report:

…because he had no authority to bind defendants to his conclusion, but also based on the circumstances that he was an 18-year old who had never before filled out or even seen a DOH report, and who had received no training or guidance as to how it should be filled out or the meanings of the terms therein.

The court reasoned. The DOH report also had failures because it stated there lacked supervision just because an adult was not present. Supervision is not only based on an adult’s presence.

Reliance on the DOH requirement of “visual or verbal communication” between campers and counselors and Council’s plan for Floodwood which required the supervision of campers “24/7” is misplaced as neither requires that the Troop leaders be constantly present with the scouts

At the same time, the supervision issue was irrelevant if the accident was not foreseeable. There was no evidence presented that the scouts would engage in dangerous conduct or misbehave. Even if some of the misbehavior was foreseeable, there was no evidence that, and it was not foreseeable that the plaintiff would bolt from the shower house, trip and fall and receive an injury.

As it is undisputed that defendants had no notice of the possibility of misbehavior among the scouts, they have established that plaintiff’s accident was not foreseeable.

Even if the Troop leaders had escorted the scouts to the shower house and stood outside while they showered, the alleged misbehavior occurred inside the shower house, and thus the leaders would neither have observed it nor been in a position to stop it. And unless the leaders blocked the entrance, they would not have been able to stop plaintiff from running out of the shower house and falling down.

On top of all of that, even if leaders were present the accident happened too quickly for anyone to have stopped it. Besides, the acts leading to the injury were solely done by the plaintiff, without interference or prodding from anyone other youth or leader. “Moreover, it was plaintiff’s own impulsive and reckless conduct in squirting the other scouts with the water pump and then running out of the shower house, that led to his injury.”

Thus, as the accident occurred in a very short time span and as plaintiff’s own impulsive conduct led to his injury, defendants have demonstrated that there is no proximate cause between their allegedly inadequate supervision and plaintiff’s accident.

The final issue tackled by the courts was the lighting and conditions of the area where the shower house was located. Because the plaintiff could not identify what caused him to fall, it could not be said the fall was caused by inadequate lighting.

Thus, as the accident occurred in a very short time span and as plaintiff’s own impulsive conduct led to his injury, defendants have demonstrated that there is no proximate cause between their allegedly inadequate supervision and plaintiff’s accident.

On top of that, the plaintiff was wearing a headlamp at the time of the accident so even if lighting were to blame the plaintiff had brought his own. Identifying the area around the shower house without being able to identify which of those conditions caused his injury is not enough to argue a legal claim.

Plaintiff was able, however, to recall the conditions outside of the shower house, which consisted of typical conditions in any wooded or camp area, i.e., rocks, dirt, branches, etc., and having been on several camp trips, was presumably aware of the existence and risks of such conditions. He did not identify or recall any unusual, unexpected, or dangerous conditions, nor have any such conditions been alleged.

The decision of the trial court was upheld, and the plaintiff’s claims were dismissed.

So Now What?

First, more information needs to be given to parents to try to educate them of the risks of any youth activity. On top of this, programs designed to protect kids need to be explained both to why they are used and what the adults can and cannot do, like the BSA YPT program.

On top of that, you need to develop proof that your parents knew the risks of the activity. New York does not allow a parent to sign away a minor’s right to sue. (See States that allow a parent to sign away a minor’s right to sue.) As such the only real defense you would have would be assumption of the risk. (See Assumption of the Risk and Assumption of Risk — Checklist)

I would include in that assumption of the risk form statements about the kid’s age and prior camping/outdoor experience as in this case. Ask the parents to relate or checkbox their outdoor experience.

You can use the form to determine who else can help your unit or program, and you can use the form to prove the parents knew and assumed the risk.

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Gomes v. Boy Scouts of America, et al., 51 Misc. 3d 1206(A); 2016 N.Y. Misc. LEXIS 1088; 2016 NY Slip Op 50444(U)

Gomes v. Boy Scouts of America, et al., 51 Misc. 3d 1206(A); 2016 N.Y. Misc. LEXIS 1088; 2016 NY Slip Op 50444(U)

Davide E. Gomes, Plaintiff, against Boy Scouts of America, et al., Defendants.

115435/10

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

51 Misc. 3d 1206(A); 2016 N.Y. Misc. LEXIS 1088; 2016 NY Slip Op 50444(U)

March 10, 2016, Decided

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

PRIOR HISTORY: Gomes v. Boy Scouts of America, 2013 N.Y. Misc. LEXIS 4622 (N.Y. Sup. Ct., Oct. 9, 2013)

COUNSEL: [*1] For plaintiff: Scott W. Epstein, Esq., Antich, Erlich & Epstein, LLP, New York, NY.

For Council and Troop 141: Brian P. Morrissey, Esq., Connell Foley, LLP, New York, NY.

JUDGES: Barbara Jaffe, JSC.

OPINION BY: Barbara Jaffe

OPINION

Barbara Jaffe, J.

By notice of motion, defendants Northern New Jersey Council, Inc., Boy Scouts of America (Council) and Boy Scout Troop 141 (troop) (collectively, defendants) move pursuant to CPLR 3212 for an order granting them summary dismissal of the complaint against them. Plaintiff opposes.

I. PERTINENT BACKGROUND

By decision and order dated October 8, 2013 (NYSCEF 110), I granted defendant Boy Scouts of America’s (BSA) motion for an order summarily dismissing the complaint against it. As set forth therein, the background of the case is as follows:

On July 24, 2005, plaintiff, then a 13-year-old Boy Scout, was participating in a Boy Scout excursion at Floodwood Mountain Scout Reservation in the Adirondacks. Plaintiff was a member of Boy Scout Troop 141. He and other scouts were accompanied by volunteer [**2] adult leaders. Near or in the shower house at the Reservation, plaintiff sustained head injuries.

In accident and witness reports created after the accident, the other scouts who were at the showers [*2] at the time of plaintiff’s accident stated that they saw plaintiff run from the shower area and discovered him lying prone on the ground and bleeding. None of them saw him fall.

In his amended complaint, plaintiff alleges that as he was walking along the common area and/or grassy area at or near the showers, he fell due to defendants’ failure to keep the area safe, in good repair, well-lit and free from obstruction or defect and supervise him and the other scouts.

In plaintiff’s supplemental verified bill of particulars, he describes the dangerous condition which caused his fall as follows: “that the area in front of the showers where the [ ] accident occurred was not lit, and/or was poorly lit, and/or was inadequately lit; was raised and un-leveled, and had rocks and/or tree limbs/branches strewn about it,” all of which defendants had constructive notice.

At an examination before trial held on December 16, 2011, plaintiff testified that he did not recall his accident or what had caused his fall, and that his last memory before falling was of walking to the showers. At the time of his accident, it was dark outside and there was no lighting outside the showers, although it was lit inside, [*3] and he noticed that there were many rocks on the ground around the shower house. He was wearing a working head lamp as he approached the showers.

(NYSCEF 110).

On this motion, the following relevant facts are undisputed:

(1)Council owns and operates Floodwood and Troop made reservations to attend camp there;

(2)plaintiff had been a scout for several years and had attended previous camping trips;

(3)defendants Lopes and Figueiredo were the two adult Troop leaders in charge of plaintiff’s troop at Floodwood;

(4)the night of plaintiff’s accident, he and the other Troop members were told to put equipment into the Troop’s van and take showers at the camp’s shower house;

(5)of the five other Troop members that accompanied plaintiff to the shower house that night, one was 14 years old, one was 15 years old, and three were 16 years [**3] old;

(6)the adult leaders did not accompany them to the van or the shower house;

(7)the shower house was used by both female and males at alternating hours, and the Troop members had to wait until 10 pm to use it; and

(8)there had been no prior incidents of misbehavior during the trip or among the Troop members.

(NYSCEF 151).

The New York State Department of Health (DOH) promulgates [*4] specific rules for children’s camps. (10 NYCRR § 7-2 et al.). As pertinent here, the regulations require adequate supervision, and that “as a minimum . . . there shall exist visual or verbal communications capabilities between camper and counselor during activities and a method of accounting for the camper’s whereabouts at all times.” (10 NYCRR § 7-2.5[o]).

Council’s written plan for Floodwood requires that supervision of campers “be maintained for the duration (24/7) of their stay at the camp.” (NYSCEF 174). Council’s Leaders Guide for Floodwood provides that “running and horseplay have no place at Scout Camps,” and all scout units must have two adult leaders with the unit at all times. (NYSCEF 175).

At a deposition held on December 16, 2011, plaintiff testified that he had been a scout since age nine, and that while a scout he participated in monthly weekend scout camping trips. During the trips, the Troop leaders would show the scouts how to use tools, and gather firewood; when gathering firewood, the scouts would go into the woods using the buddy system, which requires that scouts be accompanied by at least one other scout. When the scouts went to the bathroom, they also used the buddy system. At a camp attended [*5] by the Troop the week before the one at Floodwood, plaintiff visited the shower facilities using the buddy system or with several scouts. At Floodwood too, the buddy system was used. (NYSCEF 162).

According to plaintiff, the main purpose of the trip to Floodwood was to take a 15-mile canoe trip. On the day of the accident, the scouts and the Troop leaders spent time outside in their campsite within the camp, where “there was a little bit of horsing around,” “a little bit of pushing, playing around,” and all of the scouts were pushing and shoving each other during and after a game of touch football, which the leaders told them to stop. As he walked to the shower house the night of his accident, plaintiff wore a functioning headlamp; the area around the shower house was dark. He does not recall what happened from the time the group walked to the shower house to when he regained consciousness on the ground, bleeding from his head. (NYSCEF 162).

It is undisputed that other scouts reported that while they were in the shower house, plaintiff took a water pump from the wall and squirted water on them. When one of the scouts told him to stop, plaintiff ran out of the shower house and fell to [*6] the ground. None of the scouts knew what had caused the fall. (NYSCEF 167-171, 176).

Pictures taken by the parties at Floodwood after the accident depict the shower house as a building stationed in a large clearing or space in front of a wooded area. (NYSCEF 161; 192).

According to the Troop leaders present that day, it was not scouts’ practice to have adult leaders accompany scouts to camp showers. Both leaders testified that they had known plaintiff and the other scouts for several years, had been with them at another camp the week before they went to Floodwood, and had had no disciplinary issues or previous incidents of misbehavior between them. The leaders testified that Scout protocol differentiated between active activities, such as swimming or rock climbing, and passive activities, such as going to shower or the bathroom or retrieving firewood, and that active activities required adults to be present while passive activities did not necessarily require an adult presence. (NYSCEF 163, 164).

Lopes testified that they defined supervision as permitting the scouts to travel throughout the camp as long as the leaders knew their whereabouts, and that he believed that Scout guidelines [*7] prohibited the leaders from walking the scouts to the shower house and waiting outside while they showered in order to avoid any appearance of impropriety. He testified that it was a three to five-minute walk from the Troop’s campsite to the shower house. (NYSCEF 164).

Figueiredo testified that the Troop’s campsite was located approximately a three-minute walk from the parking lot, that the shower house was located in the general camp, and that it was a three to four-minute walk from the Troop’s campsite to the shower house. He found out about plaintiff’s accident when two of the scouts found him at their campsite, and when he arrived at the shower house, he found plaintiff sitting on the ground in front of the shower house. He investigated the incident by interviewing the other scouts, and concluded that the other scouts were inside the shower house when plaintiff fell outside the shower house. (NYSCEF 163).

Figueiredo testified that although they did not accompany the scouts to the bathroom or shower, they had them use the buddy system and knew their whereabouts and when to expect them to return, which he defined as their supervision of the scouts:

[t]hey were not in a vast wilderness, they [*8] were in a camp. So there are other people in camp, so they’re within earshot of a number of people that are in camp. It is not like . . . I sent them out into the African plains; there were other people around. They were reasonably within earshot to a bunch of people and I knew their whereabouts.

(NYSCEF 163).

At an examination before trial held on March 16, 2012, Grey Rolland, Council’s director of support services, testified, as pertinent here, that he was unaware of any other injuries to scouts at Floodwood before or after plaintiff’s accident, and that plaintiff and the other scouts used the buddy system, which Rolland considers adequate. He did not believe that the adult Troop leaders should have accompanied the scouts to the shower house given the BSA prohibition against permitting adults and youths in shower houses together, and he asserted that it would not be considered “appropriate” for the adults to escort the scouts to the shower house. He acknowledged that if a Troop leader observed scouts running around or engaging in horseplay, it was incumbent upon the leader to tell them to stop. (NYSCEF 165).

Richard Saunders testified at an EBT that at the time of plaintiff’s accident, [*9] he was 18 years old and employed at Floodwood as a camp health officer. He described Floodwood as a “high-adventure base” for scouts older than 13 to do back-country exploring. After the accident, he completed a form as required by the DOH, on which he noted, under the category “Supervision During Incident,” that the “activity was inadequately addressed in the written plan,” by which he intended to convey that he had reviewed the scout’s written plan for the trip and saw [**4] nothing therein related to supervision of the scouts while in the shower house. He also wrote that no camp staff was present when the accident occurred. Although Saunders had first written that the supervision was “adequate,” he changed it to “inadequate” based on the absence of an adult when plaintiff was injured. Saunders had never before filled out such a form, nor was it part of his job.

Saunders described Floodwood as consisting of a main camp area, which includes the buildings where food is organized and meetings occur, and the individual campsites which are approximately a five-minute walk away. The shower house was located between the campsites and the camp buildings. He estimated that the shower house was [*10] a two-minute walk from the Troop’s campsite and in “an area where boys don’t want to have adults and it would be illegal to have them being watched while showering.” As a scout and troop member attending camps like Floodwood, Saunders recalled that adult leaders did not escort scouts to the showers or stand outside while the scouts showered. (NYSCEF 166).

DOH investigated the incident, after which it and Council entered into a stipulation providing that DOH had alleged that Council had violated various camp regulations, including those relating to the supervision of scouts, and that the parties were thereby settling the matter by Council agreeing not to contest it, paying a fine, and submitting a revised camp safety plan. Additionally, by its terms, the stipulation is

not intended for use in any other forum, tribunal or court, including any civil or criminal proceeding in which the issues or burden of proof may differ, and is made without prejudice to [Council’s] rights, defenses and/or claims in any other matter, proceeding, action, hearing or litigation not involving [DOH] [and] is not intended to be dispositive of any allegations of negligence that may be made in a civil action for [*11] monetary damages.

(NYSCEF 177).

By affidavit dated August 3, 2015, Michael J. Peterson states that he is an expert on camp and conference center management, and opines, based on his experience and review of relevant documentation in this case, that defendants violated the DOH regulation which requires, at a minimum, visual or verbal communications capabilities between a camper and a counselor, and that plaintiff’s accident was reasonably foreseeable as the scouts were allowed to remain “totally unsupervised and unregulated for a lengthy period of time in a potentially dangerous/hazardous environment.” He also posits that if the Troop leaders had accompanied the scouts to the shower house, “the level of horse play outside the shower house would have been minimal to non-existent, the boys would have taken their showers without incident, and safely returned to their camp site.” He also states that the defendants should have provided adequate lighting around the shower house. (NYSCEF 193).

II. CONTENTIONS

Defendants deny that they were negligent in any manner related to the physical conditions outside the shower house as they were the ordinary and expected conditions present in a wooded camp. [*12] Troop denies having had any obligation to maintain the area. Defendants also deny having breached a duty to supervise plaintiff absent any prior incidents between plaintiff and any [**5] other Troop member that would have put them on notice of the need to supervise them more closely, and argue that plaintiff’s injury or misbehavior was not reasonably foreseeable. They observe that plaintiff cannot remember how he was injured or whether his injuries were caused by a premises condition or an assault by another scout, and deny having had notice of any prior incidents or accidents around the shower house. (NYSCEF 151).

Plaintiff argues that his inability to remember the accident permits a relaxed standard of proof on summary judgment, and contends that there are two possible explanations for his accident: (1) that he was struck over the head with a blunt object by a fellow scout, or (2) that he tripped and fell while running over the uneven and non-illuminated area around the shower house, and that in either scenario, the accident would not have happened if defendants had adequately supervised that night. He asserts that a jury could conclude that a reasonably prudent parent would not permit [*13] six minors “to wander around the woods at 10:00 pm, for an indefinite period of time, without any adult supervision whatsoever,” and maintains that any “horseplay” should have and would have been discouraged by the Troop leaders. He also observes that defendants violated their own policies by failing to have a troop leader with the troop “at all times” or “for the duration (24/7)” of their trip. (NYSCEF 190).

Plaintiff relies on the stipulation entered into between defendants and DOH, Saunders’s conclusion that factors contributing to the incident included inadequate supervision, and Peterson’s opinion, to demonstrate the lack of adequate supervision. He also argues that Council had a duty to illuminate the area around the shower house, which he characterizes as a “rugged” and “uneven and unpaved camp area containing, inter alia, grass, dirt, rocks, trees, and tree roots.” (Id.).

In reply, defendants maintain that they established, prima facie, their lack of prior knowledge or notice of any scout misbehavior at the camp or any dangerous condition around the shower house. They deny that plaintiff offers evidence that he suffers from any medical condition causing a failure of memory, and [*14] assert that his inability to remember the incident does not warrant relieving him of his burden of proof. They also dispute that the scouts were “traipsing or wandering” through the woods, observing that both Troop leaders testified that they were within the camp, not the woods, where they were within earshot, and were directed to go to the shower house, which they did. (NYSCEF 200).

Defendants also contend that Peterson’s expert affidavit is based on speculation, and that his reliance on the DOH requirement of visual or verbal communication capabilities during “activities” is inapplicable as showering or walking to the shower house is not an activity within the meaning of the rule. They observe that Peterson cites no regulations that defendants allegedly violated relating to the lighting around the shower house, that Peterson never inspected the area, and that in any event, the conditions alleged are ordinary elements of a wooded area. They also deny that Saunders’s statements in the DOH form constitute party admissions, as his completion of the form was not within the scope of his authority at Floodwood. (Id.).

III. ANALYSIS

“The proponent of a summary judgment motion must make a prima [*15] facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” (Ayotte v Gervasio, 81 NY2d 1062, 1062, 619 N.E.2d 400, 601 N.Y.S.2d 463 [1993] [citation [**6] omitted]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]). “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers.” (Winegrad, 64 NY2d at 853; see also Lesocovich v 180 Madison Ave. Corp., 81 NY2d 982, 985, 615 N.E.2d 1010, 599 N.Y.S.2d 526 [1993]).

Once the proponent’s prima facie burden is satisfied, the opposing party bears the burden of presenting evidentiary facts sufficient to raise triable issues of fact. (Zuckerman v City of New York, 49 NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]; CitiFinancial Co. [DE] v McKinney, 27 AD3d 224, 226, 811 N.Y.S.2d 359 [1st Dept 2006]). Summary judgment may be granted only when it is clear that no triable issues of fact exist (Alvarez v Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]), and “should not be granted where there is any doubt as to the existence of a triable issue” of fact (Am. Home Assur. Co. v Amerford Intl. Corp., 200 AD2d 472, 473, 606 N.Y.S.2d 229 [1st Dept 1994]; see also Color by Pergament, Inc. v Pergament, 241 AD2d 418, 420, 660 N.Y.S.2d 431 [1st Dept 1997] [“Summary judgment is an exercise in issue-finding, not issue determination, and may not be granted when material and triable issues of fact are presented”]). The court must examine the evidence in a light most favorable to the party opposing the motion. (Martin v Briggs, 235 AD2d 192, 196, 663 N.Y.S.2d 184 [1st Dept 1997]).

A plaintiff who, due to a failure of memory, cannot describe what led to his injury is not held to as high a degree of proof on his or her cause of action. (Noseworthy v City of New York, 298 NY 76, 80 N.E.2d 744 [1948]; see Bah v Benton, 92 AD3d 133, 936 N.Y.S.2d 181 [1st Dept 2012] [plaintiff who presented medical evidence establishing loss of memory due [*16] to accident at issue entitled to lesser standard of proof applicable to party unable to present party’s version of facts]). However, even when a plaintiff suffers from amnesia, he is not relieved of the obligation to provide “some proof from which negligence can be reasonably inferred.” (Alotta v Diaz, 130 AD3d 660, 11 N.Y.S.3d 868 [2d Dept 2015]; see Schechter v Klanfer, 28 NY2d 228, 269 N.E.2d 812, 321 N.Y.S.2d 99 [1971] [even if amnesiac plaintiff is held to lesser degree of proof, it does not “shift the burden of proof or eliminate the need for plaintiffs to introduce evidence of a prima facie case”]; Santiago v Quattrociocchi, 91 AD3d 747, 937 N.Y.S.2d 119 [2d Dept 2012] [same]).

A. Did defendants breach their duty to supervise plaintiff?

A person, other than a parent, who undertakes to control, care for, or supervise an infant, is required to use reasonable care to protect the infant . . . Such a person may be liable for any injury sustained by the infant which was proximately caused by his or her negligence. While a person caring for entrusted children is not cast in the role of an insurer, such an individual is obligated to provide adequate supervision and may be held liable for foreseeable injuries proximately resulting from the negligent failure to do so.

(Alotta v Diaz, 130 AD3d 660, 11 N.Y.S.3d 868 [2d Dept 2015], quoting Appell v Mandel, 296 AD2d 514, 745 N.Y.S.2d 491 [2d Dept 2002]).

A “summer camp is duty-bound to supervise its campers as would a parent of ordinary prudence in comparable [*17] circumstances.” (Phelps v Boy Scouts of Am., 305 AD2d 335, 762 N.Y.S.2d 32 [1st Dept 2003]). And, while the degree of supervision required depends on the surrounding circumstances, “constant supervision in a camp setting is neither feasible nor desirable.” (Id. at 335-6).

The standard for determining whether a duty to supervise a minor has been breached is “whether a parent of ordinary prudence placed in the identical situation and armed with the same [**7] information would invariably have provided greater supervision.” (Mayo v New York City Tr. Auth., 124 AD3d 606, 3 N.Y.S.3d 36 [2d Dept 2015], quoting Mary KK v Jack LL, 203 AD2d 840, 611 N.Y.S.2d 347 [3d Dept 1994]).

Moreover, “in determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow [campers], it must be established that [camp] authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury, that is, that the third-party acts could reasonably have been anticipated.” (Ragusa v Town of Huntington, 54 AD3d 743, 864 N.Y.S.2d 441 [2d Dept 2008], quoting Mirand v City of New York, 84 NY2d 44, 637 N.E.2d 263, 614 N.Y.S.2d 372 [1994]). Although if an accident occurs in “so short a span in time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the . . . defendants is warranted.'” (Atehortua v Lewin, 90 AD3d 794, 935 N.Y.S.2d 102 [2d Dept 2011], quoting Nash v Port Wash. Union Free School Dist., 83 AD3d 136, 922 N.Y.S.2d 408 [2d Dept 2011]).

1. Was the supervision adequate?

Even though plaintiff does not remember the accident, the [*18] other boys’ versions of it are consistent and uniform, and present the following picture: Plaintiff and the other scouts walked to the shower house and went inside without incident, whereupon plaintiff obtained a water pump and started spraying water on them. When one of the scouts told plaintiff to stop, he ran out of the shower house, and fell.

Plaintiff’s contention is that for defendants’ supervision to have been adequate that night, the Troop leaders should have escorted or walked the scouts to the shower house, waited outside while they showered, and then walked them back to their campsite. As it is undisputed that the scouts ranged in age from 13 to 16, that they were at Floodwood to learn skills related to survival in the woods and to partake in a 15-mile canoe trip, that the scouts utilized a buddy system when at various camps and that Troop leaders never escorted them to the bathrooms or showers, that the shower house was approximately a three to five-minute walk from their campsite, and that the shower house was located within the camp area where other campers and adults were present and within earshot, defendants have demonstrated that a parent of ordinary prudence placed [*19] in the identical situation and armed with the same information would not have provided greater supervision than that provided by defendants.

Moreover, a parent who permits his or her child to attend an overnight camping trip in the woods where the child will be taught skills related to understanding and surviving outdoor conditions, is presumably aware of the hazards and risks of injury associated with such conditions, and it would be illogical for that same parent to require or believe it necessary for the child to be escorted personally to and from every area within the camp. Such a degree of supervision “in a camp setting is neither feasible nor desirable” (Phelps v Boy Scouts of Am., 305 AD2d 335, 762 N.Y.S.2d 32 [1st Dept 2003]), and camps “cannot reasonably be expected to continuously supervise and control all of [the campers] movements and activities” (Harris v Five Point Mission – Camp Olmstedt, 73 AD3d 1127, 901 N.Y.S.2d 678 [2d Dept 2010]).

On point is Kosok v Young Men’s Christian Assn. of Greater New York, where a group of boys at a summer camp injured the plaintiff while playing a prank involving attaching a pail to a fishing rod and letting it descend onto the heads of other unsuspecting boys. The group of boys, ranging in age from 12 to 15, occupied a cabin by themselves; the camp counselor did not stay [*20] in [**8] the cabin with them during the midday break. The Court dismissed the case, finding that there was no negligence by defendants in failing to supervise “the rest period of boys of high-school age for a short period.” (24 AD2d 113, 264 N.Y.S.2d 123 [1st Dept 1965], affd 19 NY2d 935, 228 N.E.2d 398, 281 N.Y.S.2d 341 [1967]). The Court observed that ” [r]emembering that this is a Summer camp, it will be seen that constant supervision is not feasible . . . Nor is it desirable. One of the benefits of such an institution is to inculcate self-reliance in the campers which an overly protective supervision would destroy.” (24 AD2d at 115; see also Gustin v Assn. of Camps Farthest Out, Inc., 267 AD2d 1001, 700 N.Y.S.2d 327 [4th Dept 1999] [same]).

Plaintiff’s reliance on Phelps v Boy Scouts of Am. is misplaced. As I held in granting summary judgment to Boy Scouts of America:

In Phelps . . . “very young campers” were placed in bunks at a camp with “much older campers,” who allegedly assaulted the young campers . . . The court also allowed that very young campers often require closer supervision than older campers, and that placing the younger campers in the bunks with the older campers was an apparent violation of camp policy.

Here, there is no issue of very young campers being unsupervised or placed in risky circumstances as plaintiff and his fellow scouts were all teenagers and there is no evidence that [*21] any camp policy was violated . . .

(305 AD2d 335, 762 N.Y.S.2d 32 [1st Dept 2003]).

Moreover, plaintiff’s reliance on Saunders’s conclusion or opinion in the DOH report that the accident was caused by inadequate supervision is not conclusive here, not only because he had no authority to bind defendants to his conclusion, but also based on the circumstances that he was an 18-year old who had never before filled out or even seen a DOH report, and who had received no training or guidance as to how it should be filled out or the meanings of the terms therein. In any event, Saunders testified that he wrote that there was inadequate supervision based only on the fact that the Troop leaders were not physically present at the time of the accident, which is an insufficient basis for the conclusion.

Plaintiff’s submission of the stipulation between DOH and defendants to establish that there was inadequate supervision is barred by the stipulation’s own terms.

Peterson’s expert opinion is based on speculation and is conclusory, and he cites no regulation or requirement that specifies that adequate supervision in this context means that the Troop leaders were required to escort the scouts to the shower house and wait outside until they finished [*22] showering. Indeed, any claim that such supervision is required in camps is undermined by the undisputed fact that at the camp that the scouts attended a week before going to Floodwood, the scouts went to the shower house unescorted and used only the buddy system. Reliance on the DOH requirement of “visual or verbal communication” between campers and counselors and Council’s plan for Floodwood which required the supervision of campers “24/7” is misplaced as neither requires that the Troop leaders be constantly present with the scouts. (See eg, Harris v Five Point Mission – Camp Olmstedt, 73 AD3d 1127, 901 N.Y.S.2d 678 [2d Dept 2010] [while expert concluded that camp was negligent in failing to provide plaintiff with shin guards during soccer game in which he was injured, he failed to allege that camps generally provide shin guards during games or that rules requiring use of shin guards in soccer leagues have been implemented by or [**9] accepted as accepted practice at camps]; Cherry v State of New York, 42 AD2d 671, 344 N.Y.S.2d 545 [4th Dept 1973], affd 34 NY2d 872, 316 N.E.2d 713, 359 N.Y.S.2d 276 [1974] [where camper was injured when nail he struck with hammer while building tent platform struck him, expert’s opinion that the camp was required to provide campers with safety goggles was expert’s personal opinion and neither statute nor regulations required goggles]). [*23]

References to the “traipsing” or “wandering” in the woods unsupervised have no basis in the record; the scouts remained in the camp and never went into the woods. Moreover, the accident did not occur in the woods, and there is no correlation between the woods and plaintiff’s accident.

In any event, whether or not defendants’ supervision of plaintiff was adequate is irrelevant if the accident was not foreseeable or was not proximately caused by the allegedly inadequate supervision.

2. Was plaintiff’s accident foreseeable?

As it is reasonably inferred that the accident occurred as described by the other scouts, there is no evidence suggesting that defendants were on notice that plaintiff and/or the scouts would engage in any dangerous conduct or misbehavior at the shower house. Moreover, even if some of the behavior was foreseeable, plaintiff’s bolting from the shower house, and subsequent fall, was not a foreseeable consequence of any misbehavior.

Kosok is again on point here, with the Court finding that “[a]ssuming that the boys were reasonably quiet – and there is no indication that they were not – no occasion for looking in on them was presented.” The Court also observed that:

[a] certain amount [*24] of horseplay is almost always to be found in gatherings of young people, and is generally associated with children’s camps. It is only to be discouraged when it becomes dangerous. Nothing in the incident itself or surrounding circumstances indicates any notice to defendant that such was likely to result here.

(24 AD2d at 115; see also Gibbud v Camp Shane, Inc., 30 AD3d 865, 817 N.Y.S.2d 435 [3d Dept 2006] [same]).

Even if plaintiff had been assaulted by a fellow scout rather than having tripped and fallen, there is no evidence that defendants were on notice of the possibility of an assault. (See eg Alvero v Allen, 262 AD2d 434, 692 N.Y.S.2d 116 [2d Dept 1999] [boy scout sued troop leader for injury caused by snowball fight; absent proof that leader had notice of ongoing and dangerous snowball fight, plaintiff could not prevail on inadequate supervision claim]; see also Osmanzai v Sports and Arts in Schools Foundation, Inc., 116 AD3d 937, 983 N.Y.S.2d 848 [2d Dept 2014] [injury caused by impulsive, unanticipated act of fellow camper ordinarily will not give rise to negligence claim absent proof of prior conduct that would have given notice to protect against injury-causing act]).

As it is undisputed that defendants had no notice of the possibility of misbehavior among the scouts, they have established that plaintiff’s accident was not foreseeable.

3. Was plaintiff’s accident proximately caused by defendants’ allegedly inadequate [*25] supervision?

Even if the Troop leaders had escorted the scouts to the shower house and stood outside while they showered, the alleged misbehavior occurred inside the shower house, and thus the leaders would neither have observed it nor been in a position to stop it. And unless the leaders blocked the entrance, they would not have been able to stop plaintiff from running out of the shower house and falling down.

Plaintiff’s and Peterson’s belief that the mere presence of the Troop leaders outside the shower house would have been sufficient to stop any horseplay from taking place inside is not only speculative, but unwarranted as the scouts had engaged in horseplay earlier that day while the leaders were with them. (See eg, Stephenson v City of New York, 85 AD3d 523, 925 N.Y.S.2d 71 [1st Dept 2011], affd 19 NY3d 1031, 978 N.E.2d 1251, 954 N.Y.S.2d 782 [2012] [suggestion that student’s assault on plaintiff would have been prevented by his mother accompanying her almost 14-year-old son to school every day did not rise above speculation]; see also Lizardo v Bd. of Educ. of City of New York, 77 AD3d 437, 908 N.Y.S.2d 395 [1st Dept 2010] [rejecting plaintiff’s expert’s assertion that collision between children would have been preventable by teacher watching play more closely, and opinion that incident might have been prevented by closer supervision valid only in retrospect]; Walsh v City School Dist. of Albany, 237 AD2d 811, 654 N.Y.S.2d 859 [3d Dept 1997] [finding unpersuasive allegation [*26] that presence of supervisor could have kept plaintiff and fellow student attentive and injury would have been prevented]).

In any event, the accident occurred too quickly to enable the Troop leaders to prevent it had they been outside the shower house. As in Kosok, “[e]ven if the cabin counsellor had been within earshot of the cabin, it is difficult to see how the accident would have been prevented.” (24 AD2d at 115; see Harris v Five Point Mission – Camp Olmstedt, 73 AD3d 1127, 901 N.Y.S.2d 678 [2d Dept 2010] [as plaintiff was injured at camp during 15-second time span, camp established that it did not negligently supervise him]; see also Jorge C. v City of New York, 128 AD3d 410, 8 N.Y.S.3d 307 [1st Dept 2015] [defendant established that student’s injury did not arise from inadequate supervision, but from impulsive and unanticipated acts of fellow student of finding balloon, filling it with water, and attempting to throw it at plaintiff, and plaintiff running away and looking backwards rather than ahead]).

Moreover, it was plaintiff’s own impulsive and reckless conduct in squirting the other scouts with the water pump and then running out of the shower house, that led to his injury. (See Gibbud v Camp Shane, Inc., 30 AD3d 865, 817 N.Y.S.2d 435 [3d Dept 2006] [plaintiff’s own impulsive and reckless act in grabbing camp counselor from behind, causing counselor to drop plaintiff and fracture plaintiff’s [*27] ankle, led to his injury]).

Thus, as the accident occurred in a very short time span and as plaintiff’s own impulsive conduct led to his injury, defendants have demonstrated that there is no proximate cause between their allegedly inadequate supervision and plaintiff’s accident.

B. Did Council breach their duty to illuminate adequately the area around the shower house?

Plaintiff has not identified what caused him to fall, whether it was part of the shower house or something on the ground, either a rock or tree branch or uneven patch of dirt. Absent any such evidence and even if plaintiff is unable to recall, there is no basis on which it may be found that plaintiff’s injury was proximately caused by the lack of lighting around the area. (See Lynn v Lynn, 216 AD2d 194, 628 N.Y.S.2d 667 [1st Dept 1995] [plaintiff’s amnesia did not reduce her burden of proving that allegedly defective condition of stairway was proximate cause of fall]).

Moreover, plaintiff was wearing a working headlamp at the time of the incident, and neither plaintiff nor his expert identified a regulation or rule requiring defendants to light the area around the shower house at all or in any particular manner.

Plaintiff was able, however, to recall the conditions outside of the [*28] shower house, which consisted of typical conditions in any wooded or camp area, i.e., rocks, dirt, branches, etc., and [**10] having been on several camp trips, was presumably aware of the existence and risks of such conditions. He did not identify or recall any unusual, unexpected, or dangerous conditions, nor have any such conditions been alleged.

In Kimbar v Estis, a young camper had wandered off a camp path at night and hit a tree. The Court found that the camp owners had no duty to illuminate the path in the absence of any particular danger on the path, finding:

We have before us a simple camper-camp relationship and the rustic, outdoor camp life that is the very raison d’e tre [sic] of summer establishments such as defendants’. There are certain risks incidental to camping, but these are part of an adventurous summer camp life, and are necessarily assumed by those who would participate therein . . .

Indeed, it is expected that a camp will have trees, that paths will lead through woods and that woods will be dark at night. It is not to be anticipated that floodlights will be supplied for campers through woodland paths. One naturally assumes many ordinary risks when in the woods and in [*29] the country trails are not smooth sidewalks, paths are not paved, trees, brush and insects are to be expected, and even snakes may appear occasionally. These and more are all a part of accepted camp life.

To hold summer camps to a duty of floodlighting woods would not only impose upon them a condition almost impracticable under many circumstances but would be unfair, as well, to the youth who seek the adventure of living closer to nature, participating in outdoor astronomical study at night or bird study before dawn, or when overnight hikes take them for study and adventure far from any source of electrical power. Such a duty, in short, would frequently compel camps to keep boys confined after dark and thereby effectively spell the end of some of the most desirable activities of real camping life.

1 NY2d 399, 135 N.E.2d 708, 153 N.Y.S.2d 197 [1956]).

Defendants thus establish that they breached no duty to illuminate the area around the shower house and that, in any event, the area did not constitute a dangerous condition for which they may be held liable. (See Torres v State of New York, 18 AD3d 739, 795 N.Y.S.2d 710 [2d Dept 2005] [park owner not liable for injury sustained when plaintiff tripped over tree stump in park; “landowners will not be held liable for injuries arising from a condition on the property [*30] that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it”]; Mazzola v Mazzola, 16 AD3d 629, 793 N.Y.S.2d 59 [2d Dept 2005] [dismissing claim by infant plaintiff who tripped and fell over exposed tree roots in backyard as alleged defect was inherent to nature of land]; Moriello v Stormville Airport Antique Show & Flea Market, Inc., 271 AD2d 664, 706 N.Y.S.2d 463 [2d Dept 2000] [owner of field not liable for injuries to plaintiff who tripped on flat rock while walking on unpaved roadway; rock was inherent to nature of unpaved roadway]; Csukardi v Bishop McDonnell Camp, 148 AD2d 657, 539 N.Y.S.2d 408 [2d Dept 1989] [campground owner not liable to person who tripped over grass-covered stump in wooded area, as stump was incidental to nature of campground and could be reasonably anticipated by persons traversing wooded area]; Alcantara v Fed. Girl Scout Councils of Nassau County, Inc., 24 AD2d 585, 262 N.Y.S.2d 190 [2d Dept 1965] [plaintiff could not recover for injury sustained at camp when she tripped over tree stump; [**11] defendant conducted rustic outdoor camp and paths were unpaved, and condition of premises was thus incidental to nature of camp and to be ordinarily expected by plaintiff]).

IV. CONCLUSION

For all of these reasons, it is hereby

ORDERED, that the motion of defendants Northern New Jersey Council, Inc., Boy Scouts of America and Boy Scout Troop 141 for summary judgment dismissing the action against them is granted, and the complaint is dismissed as against them, [*31] with costs and disbursements to said defendants as taxed by the Clerk upon the submission of an appropriate bill of costs, and is further

ORDERED, that the clerk is directed to enter judgment accordingly.

ENTER:

Barbara Jaffe, JSC

DATED: March 10, 2016

New York, New York


Colorado Environmental Film Festival is seeking Films from and by Youth for our 2017 Environmental Film

The Colorado Environmental Film Festival is seeking films from and by youth for our 2017 Environmental Film Festival. We are hoping to attract more youth entries and attendance next year. Early bird submission deadline is Aug 15; youth fee is only $20.

Please see submission information at ceffchair or me for more information!

CEFF seeks unique and meaningful films that aim to inspire, educate, and call to action. The largest environmental film festival between the coasts, celebrates their tenth annual festival taking place February 18-20, 2016 in downtown Golden, Colorado. Filmmakers of all abilities and backgrounds are invited to submit their films in the categories of Short Films, Feature Length Films and Youth Submission for filmmakers under 19 years of age.

Colorado Environmental Film Festival prefers online entries submitted via Withoutabox.com, which provides cost-saving, paperless submission to film festivals around the world. Withoutabox’s internet-only submission platform features online applications via one master entry form, online fee payments, press kits, and the option to use Secure Online Screeners, an economical, eco-friendly, and secure alternative to traditional hard-copy DVD submissions.

Fill out one master entry form and take advantage of quick entry, extended deadlines, and powerful submission management tools. There’s no extra cost to you, and by submitting, you’ll join Withoutabox’s global filmmaker community and stay in the loop about international exhibition opportunities.

Deadlines and entry fees:
Early bird – August 15th, 2016 – Price: Regular $30.00 – Student/Youth/Colorado Filmmaker – $20.00
Regular – September 15th, 2016 – Price: Regular $40.00 – Student/Youth/Colorado Filmmaker – $25.00
Late – October 30th, 2016 – Price: Regular $50.00 – Student/Youth/Colorado Filmmaker – $30.00
Extended – November 15th, 2016 – Price: Regular $60.00 – Student/Youth/Colorado Filmmaker – $45.00


$250,000 to get kids into Parks! “Every Kid in a Park”

Today, it was announced that Outdoor Foundation and Outdoor Industry Association put $250,000 seed money into an online crowdsourcing funding opportunity. Please check it out and let your education and nonprofit partners know they can go to https://www.crowdrise.com/everykidinapark and upload their project proposal. This is a fantastic opportunity to find funds for transportation.

Good luck!!!

Here are the basics. There is more on the site:

Commitment:
Outdoor Industry Association and Outdoor Foundation and its partners will launch the Centennial Campaign with an initial investment of $250,000 – giving school and nonprofit partners a kick start to their fundraising efforts and challenging the outdoor industry and other sectors to join the campaign. As part of this commitment and to kick off the campaign, the Foundation will award $100 to the first 100 projects that sign up.

How It Works:
1. School and nonprofit partners register and create their campaign profile that describes their project and fundraising need.
2. Working with Outdoor Industry Association and Outdoor Foundation, partners promote their project by sharing a unique URL with potential funders.
3. In preparation for the park visit, partners should go to the ‘Every Kid in a Park’ website https://everykidinapark.gov to learn more about the initiative and download free park passes.
4. Once the fundraising goal is met, the partner is prompted to submit a few verification documents (i.e. w-9 and letter from participating school) to the Outdoor Foundation.
5. The Foundation will release funds within 30 days of receiving the information.
6. Every Kid in a Park becomes a reality!

Criteria:
1. Only schools and nonprofits are eligible.
2. The park experience must engage 4th graders.
3. The park experience must happen on participating federal lands and water in 2016. CLICK HERE to see all of the agencies and locations supporting Every Kid in a Park.
4. All funds should be used for direct park experience expenses.


Kids get hurt and some kids die

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

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

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

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

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

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

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

So?

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

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

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

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

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

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

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

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

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

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

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

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2012 Recreation Law (720) Edit Law

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Pathways to Natural Resources Careers Summit

I am pleased to announce that we will be holding our follow-up meeting to the Pathways to Natural Resources Careers Summit on April 24th from 9:00 to 11:30 in the Hunter Education Room of the Colorado Parks & Wildlife building located at 6060 Broadway, Denver, CO 80216. The agenda for this event was generated by participants who attended the Pathways to Natural Resources Careers Summit held on February 23rd, co-hosted by CYCA and BLM.. With record numbers of Agency staff poised to retire and youth and young adult unemployment at 20%, this issue is of great importance.

The primary request at the conclusion of the February Summit was to conduct an inventory of existing resources for assisting young people to chart careers in natural resources – especially in State and Federal agencies. To that end, on April 24 we will:

1 – conduct a resource inventory

2 – identify resource gaps (by geographic area, age group, and target population)

Bureau of Land Management logo

Bureau of Land Management logo (Photo credit: Wikipedia)

3 – identify 2-3 action steps we can take in the next 12 months to fill those gaps

As such, please bring any and all of the electronic or hard copy resources you have that pertain to creating a path to employment in the natural resources sector. We will have laptops, and a projector and screen to enable review of electronic resources; please bring several copies of your hard copy materials for review by small groups. Load e-resources on a flash drive. If you are not able to attend, we encourage you to submit resources to us in advance so that they can be considered during the meeting. Please send them to Grant Sanford (gsanford).

Even if you were not able to attend the February Summit, we encourage you to attend this meeting and offer your insight on the topic.

I have attached the summary document from the first Pathways Summit compiled by facilitator Wendy Newman. As this summary illustrates, there are a number of short-term goals that we can collectively achieve through a focused effort. The first step is determining what resources are immediately available and what remains to be created, refined, and implemented. Your assistance and contributions are critical in achieving these goals and ultimately providing natural resource career opportunities to a broad base of young people.

There is no charge for the meeting. To RSVP, follow this link: nweil or 303-863-0603.

Light breakfast refreshments along with coffee and tea will be provided; please bring your own beverage container. RSVP by Tuesday, April 17, 2012.

Feel free to forward this email to other interested individuals.

Pathways_ConclusionsFINAL.docx

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I’ll be Speaking at the 2012 Association of Independent Camps Conference in Atlanta

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A big southern “Hi y’all !!!” to all the camp directors and owners out there. It’s almost time for AIC’s national conference and you need to make sure you have all your plans in place to join us in Atlantaon February 19th- 21st. It’s going to be one of the most informative and fun conferences you’ll ever attend!We’re going to open the conference with award winning author and radio host Charles Sykes. If you’ve ever read any of his books or heard him on the radio, you know you don’t want to miss out on this session.Charlie is senior fellow at the Wisconsin Policy Research Institute and a talk show host at WTMJ radio in Milwaukee, Wisconsin. He has written for The New York Times, The Wall Street Journal, and USA Today and is the author of six books: A Nation of Victims, Dumbing Down Our Kids, Profscam, The Hollow Men, The End of Privacy, and 50 Rules Kids Won’t Learn in School.

Our breakout sessions will include speakers from all aspects of business and camping (tax accountants, lawyers, and staff trainers to name a few) and each one will bring important information that will help you run your camp more productively and efficiently. If you want to survive, and even prosper, in today’s world and economy, these are all topics that you simply can’t learn too much about!

For those of you that haven’t signed up yet, you’ll want to hurry before the spaces get filled and you miss out on what will be one of the best investments your camp will make this year.

But don’t just take my word for how great these speakers are, we Southerners are well-known for stretching the truth. It’s not that we don’t know what the truth is; we just agree with what Mark Twain said, “Get your facts first. Then you can distort them any way you please.” Click on the picture below and see a brief video of our speakers for yourself on YouTube – then decide if you’d like to join us in Atlanta!

larry_johnson

Now for the many of you that already have signed up (and those of you still deciding), click on the link below to get up to date information about the conference as well as travel tips on the easiest way to get to the conference hotel once you arrive in Atlanta. For those of y’all that think you can just ask someone where the hotel on Peachtree street is… well, there’s 55 streets in Atlanta with the word Peachtree in it. Good luck!!! Do yourself a favor and use the link to get the information we’re providing for you, it will be the first of many ways that AIC will be able to help you this year!!

As the date gets closer for the conference, we’ll have one more email with weather updates, and any final tips you might need to know to make this one of the most enjoyable and productive conferences you’ll attend.

AIC Atlanta info

We’re glad you’re coming down to join us and we can’t wait to see ya!!!!
Larry Johnson
AIC kindred chair 2012

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