Opinion
No. 04-4001071
May 22, 2007
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
On October 26, 2001, nine-year-old Sean Hallahan attended a meeting of the Webelos Den of Cub Scout Pack 32 at the Lyme Congregational Church. Under the supervision of Den Leaders Brenda Cartmel and Vincent Agostine, the boys worked on the "Geology Badge." Guidelines for the activity and requirements for the badge are found in the Webelos Scout Book which the den leaders Brenda Cartmel and Vincent Agostine used to plan the meeting.
Ms. Cartmel and Mr. Agostine did not provide safety glasses for the scouts to wear during the activity. They provided full glass bottles of tonic water to each scout and directed the boys to scratch rocks on the bottles. The goal was to demonstrate the relative hardness of mineral samples.
After the boys completed the geology activity, the shaken and scratched bottles of tonic water were set aside while the den leaders led a related discussion. Two of the bottles exploded. One flying piece of glass from an exploded bottle hit Sean Hallahan in his left eye, lacerating his lower eyelid, severely damaging his cornea, and cutting through the lens. His vision in that eye is permanently impaired.
Plaintiffs filed this suit against Brenda Cartmel and Vincent Agostine individually, Lyme Grange #147 (Lyme Grange), the sponsoring organization holding the Charter for the Pack, the Connecticut State Grange, the Boy Scouts of America (BSA), and the Connecticut Rivers Council of the Boy Scouts of America (Rivers Council).
Defendants BSA and Rivers Council have filed a motion for summary judgment. They assert they are entitled to judgment as a matter of law because: (1) they are not liable under the doctrine of respondeat superior for the Den Leaders' actions as the leaders were not agents, employees or servants of Rivers Council or BSA and (2) having no notice, knowledge, involvement or control over the events alleged, they owed no duty to the plaintiffs in this case.
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted 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. . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . A material fact. . . [is] a fact which will make a difference in the result of the case." (internal quotations omitted) Deming v. Nationwide Mut. Ins. Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006). "It is not enough, however, for the opposing party merely to assert the existence of. . . a disputed issue. Mere assertions of fact. . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment.]" Water Way Properties v. Clot's Mfg. Co., 230 Conn. 660, 665, 646 A.2d 143 (1994).
"In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . The test is whether a party would be entitled to a directed verdict on the same facts." (Internal citations omitted.) Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A motion for summary judgment "is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." Perrile v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985).
Under the theory of respondeat superior, "A master is liable for the willful torts of his servant committed within the scope of the servant's employment and in furtherance of his master's business." Pelletier v. Bilbiles, 154 Conn. 544, 547, 227 A.2d 251 (1967). A master-servant relationship is essential to a finding of vicarious liability under the theory of respondeat superior.
Under the principles of agency, "(1) A master is a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service. (2) A servant is an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master. (3) An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking. He may or may not be an agent." REST 2d AGEN § 2 (1958).
"The determination of the status of an individual as an independent contractor or employee is often difficult. . . and, in the absence of controlling considerations, is a question of fact. It has long been established that [t]he fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work. The test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent." (Citations omitted, internal quotation marks omitted.) Tianti, ex rel. Gluck v. William Raveis Real Estate, Inc. 231 Conn. 690, 696-97, 651 A.2d 1286 (1995). "The decisive test is: Who has the right to direct what shall be done and when and how it shall be done? Who has the right to the general control?" Thompson v. Twiss, 90 Conn. 444, 97 A. 328, 330 (1916).
Connecticut has no precedent which addresses whether Boy Scouts of America or its local Council can be held vicariously liable for the negligence of volunteer leaders engaged in the internal activities of their locally chartered affiliates. However, other jurisdictions have considered claims of this nature against local councils of BSA and have not found council vicariously liable.
Local council was not vicariously liable for leader negligence when a boy scout was fatally electrocuted during a weekend scout troop camping trip when scouts raised an aluminum pipe to touch power lines. Council had no "right to control" where evidence showed the organization of BSA provided for troop and troop leader autonomy for troop activities. Wilson v. St. Louis Area Council, Boy Scouts of America, 845 S.W.2d 568, 571 (Mo.App.E.D. 1992).
When a boy scout on a troop camping trip was injured when he fell over a precipice, evidence did not support a finding of local council vicarious liability for troop leader's negligence. Instead, it showed that as an "umbrella organization. . . [local council] charters individual troops and, as part of that annual process of initial chartering and charter renewal, tries to assure itself that the troop will have responsible adult leadership. But it does not choose or in any way directly supervise the scoutmaster." McGarr v. Baltimore Area Council, Boy Scouts of America, Inc., 536 A.2d 728, 729, 735 (Md.App. 1988).
Where a boy scout on an overnight troop camping trip fell from a tree and was injured when its branch broke under his weight, the local council was found not vicariously liable for troop leader negligence because it exercised "no supervision or control over the activities of a scout troop." Davis v. Shelton, 33 A.D.2d 707, 708, (N.Y.A.D. 1969).
Connecticut Superior courts considering summary judgment have found issues of material fact regarding local council "right to control" in situations where local affiliates were operating under the direct guidance or control of local council. In one case, a scout was injured while participating in a roller skating event sponsored by the local council. Kosloff v. Fairfield County Boy Scouts, 1993 WL 407804, 1 (Conn.Super. 1993). In the second case, a scout was injured while participating in a recruiting activity designed to meet a membership goal set by the local council. Bahre v. Long River Council, Inc., 1994 WL 401274, 2 (Conn.Super. 1994).
Defendants BSA and Rivers Council submitted affidavits of the Deputy Regional Director of Operations of the Northeast Region of BSA (Childers) and the Scout Executive of Rivers Council (Pokorny) in support of their motion. Childers and Pokorny averred that: The BSA delivers the scouting program to American youth through existing community organizations. The Rivers Council offers the scouting program through existing community organizations such as churches, school, service clubs, or fraternal organizations. Neither the BSA nor the Rivers Council directs or supervises the day-to-day activities of local troops. Neither BSA nor Rivers Council had notice or advance knowledge of the Webelos Den meeting held by Pack 32 on October 26, 2001 and neither provided equipment for or supervised the activity. Community organizations, in this case, the Lyme Grange, apply to the council for a charter. The charter authorizes the Lyme Grange to offer aspects of the scouting program it believes will best serve the needs of its youth. The Lyme Grange owns and operates Cub Scout Webelos Pack 32. Lyme Grange selects and retains volunteer leaders to administer the scouting program for Pack 32.
Plaintiffs argue that there is a disputed issue of material fact as to whether BSA and Rivers Council had the "right to control" the manner in which the scouting program was delivered by den leaders Agostine and Cartmel in the October 26, 2001 Webelos den meeting of Pack 32. They rely on the Charter and Bylaws of the Boy Scouts of America to show that BSA reserves the right to terminate, refuse to grant or refuse to renew a local council charter contingent on the council fulfilling the basic purpose of the scouting movement according to BSA Bylaws and Rules. They also provide evidence that BSA, with the involvement of Connecticut Rivers Council reserved the right to deny adult membership in BSA based on a criminal background check or any past negative history with the BSA program. They show that BSA published guidance for Webelos scouts and Den leaders as well as minimum requirements for earning scout awards. However, Plaintiffs' evidence also shows that as a general proposition, the activities of Pack 32 and its Webelos Den were locally controlled. The BSA Webelos Scout Book indicates the badge requirements can be completed in den meetings or at home with den leader permission.
The material facts concern the right to control what, when and how the Webelos Den meeting of October 26, 2001 was carried out. Plaintiffs have shown that BSA, operating through Rivers Council, established the terms under which Pack 32 operated, screened and reserved the right to deny adult membership based on adverse criminal or BSA history, and made training and program materials available. These facts do not contradict the movants' showing that the local charter granted under the BSA Rules and Regulations granted the Lyme Grange independent authority to implement the BSA program to meet the needs of its youth.
The BSA authority to establish the terms under which individuals and organizations could affiliate with the organization did not establish a "right to control" local den leader activity unless it actually established such terms. Regulations which might have been written under the terms of the Boy Scout Charter and Bylaws are not material to this dispute. The evidence shows that Rivers Council provided resources which it made available to support Pack 32 but did not retain the right to schedule, plan or direct the activities of its Webelos den. Defendants Cartmel and Agostine were not servant-agents of BSA or Rivers Council during the October 26, 2001 Webelos Den meeting.
"The existence of a duty is a question of law and `[o]nly if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.'" Petriello v. Kalman, 215 Conn. 377, 382-83, 576 A.2d 474 (1990). "Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual. Although it has been said that no universal test for [duty] ever has been formulated; our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised. . . By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" Thus, initially, if it is not foreseeable to a reasonable person in the defendant's position that harm of the type alleged would result from the defendant's actions to a particular plaintiff, the question of the existence of a duty to use due care is foreclosed, and no cause of action can be maintained by the plaintiff." (Internal citations omitted, internal quotation marks omitted.) RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 385-86, 650 A.2d 153 (1994).
Defendants BSA and Rivers Council have shown that they had no advance notice or knowledge of the activities conducted in the Webelos den meeting of Pack 32 on October 26, 2001. They did not provide materials used by the den leaders in conducting that meeting.
Plaintiffs have shown that the activities of the meeting were planned by defendants Agostine and Cartmel to meet the requirements of the "geologist badge." That badge is one of 20 activity badges boys can earn in the BSA Webelos scouting program. In order to earn the badge, a scout must complete five of seven activities. The activity in question is described in the BSA Webelos Scout Book as: "Make a scale of mineral hardness for objects found at home. Show how to use the scale by finding the relative hardness of three samples." The chapter illustrates a "Hardness Scale for Minerals" which shows the hardness of a mineral to be determined by a "scratch test" ranging from talc which scratches "easily with fingernail" to diamond which "scratched corundum; hardest mineral" and including scratch testing by penny, knife blade, glass, steel and other minerals. The chapter detailing the "geologist badge" provides a list of "Geologist's Equipment" including "safety glasses to protect your eyes" and "heavy gloves for rough work." The BSA Webelos Scout Book indicates the badge requirements can be completed in den meetings or at home with den leader permission. That Pack 32 Webelos Den might be working on the "geologist badge" as described in the Webelos Scouting manual during a den meeting was clearly foreseeable to both BSA and Rivers Council.
The bottles of tonic water used in the meeting were not provided by BSA or Rivers Council nor were the materials recommended by BSA or Rivers Council for the "geologist badge" activity. Defendants BSA and Rivers Council did not supervise or control the den leaders in the activity. They were not aware of the unsafe conditions that developed in the course of the October 26, 2001 Webelos den meeting.
The general nature of Sean Hallahan's injury was that which might be caused by an exploding glass bottle. Based on the information that was known or that should have been known to them, BSA and Rivers Council would not reasonably have foreseen any of the materials used in the geologist activity exploding and sending bits of glass flying towards unprotected scouts. It was not reasonably foreseeable to defendants BSA and Rivers Council that harm of the general nature sustained by Sean Hallahan was likely to occur in a local den meeting when scouts worked on the "geologist badge."
Summary judgment is granted in favor of defendant BSA on Counts Three and Eight and to defendant Rivers Council on Counts Two and Seven of Plaintiffs' Complaint.