Davis v. Shelton
| Decision Date | 06 November 1969 |
| Citation | 304 N.Y.S.2d 722,33 A.D.2d 707 |
| Parties | Michael Eugene DAVIS, Appellant, v. Keith SHELTON et al., Defendants, and Susquenango Council, Boy Scouts ofAmerica, Inc., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
James M. Barber, Binghamton (Martin F. Holleran, Jr., Binghamton, of counsel), for plaintiff-appellant.
Kramer, Wales, Robinson & Stearns, Conrad E. Stearns, Binghamton, for defendant-respondent, Susquenango Council, Boy Scouts of America, Inc.
Chernin & Gold, Richard N. Matties, Binghamton, for defendant-respondent, Saint Andrew's Church of Binghamton, New York.
Coughlin, Dermody & Guy, Richard B. Long, Binghamton, for defendants-respondents, Frederick C. Lawrence and Eugene A. Lawrence.
Before HERLIHY, P.J., and REYNOLDS, STALEY, GREENBLOTT and COOKE, JJ.
Appeal from orders of the Supreme Court at Special Term, entered in Broome County on November 22, 1968 and November 25, 1968, which granted respondents' motions for summary judgment dismissing the complaint as to them, and from judgments entered thereon.
Appellant, then 14 years of age, was seriously injured on October 16, 1959 when a limb of a tree which he was climbing, broke under his weight, hurling him to the ground. He was a member of Boy Scout Troop 39 which was at the time on an all-night camping trip on land owned by the defendants Lawrence. The troop was sponsored by the defendant St. Andrew's Church of Binghamton, New York, under a charter granted by National Council, Boy scouts of America, Inc., after having been approved by the Susquenango Council, Boy Scouts of America, Inc. The remaining defendants in the action, Keith Shelton, the scout master, and Stanley Guinane, the assistant scout master of the troop, did not join in the motions to dismiss the complaint. Shelton had obtained permission from the Lawrences to use a portion of their lands for the camping trip. The campsite was located about three miles from a dairy bar operated by the Lawrences. After arriving at the site and setting up the camp, Shelton and Guinane left the campsite to procure a 40-quart can of milk, which had been left in a car at the side of the road some distance away. The boys began to play a game of hide-and-seek. Appellant climbed a tree and fell when a limb broke.
Appellant alleges that St. Andrew's Church and the Susquenango Council were negligent both under the Respondeat superior theory, and in providing incompetent and inexperienced leaders whom they had not properly trained. He alleges that the Lawrences owed him a duty of care as an invitee, and were negligent in that they maintained their land in a dangerous condition.
It should be observed that the only affidavits submitted by appellant in opposition to the motion were the conclusory affidavits of counsel, which primarily repeated the allegations in the complaint. Such affidavits of an attorney not having personal knowledge of the event, and not stating evidentiary facts are insufficient on a motion for summary judgment (Ford v. Burns, 28 A.D.2d 1157, 284 N.Y.S.2d 324).
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...to the owner." Id. at 742. These definitions are consistent with those employed by New York courts. See, e.g., Davis v. Shelton, 33 A.D.2d 707, 304 N.Y.S.2d 722, 725 (1969); LeMay v. General Elec. Co., 114 Misc.2d 445, 451 N.Y.S.2d 990, 993 Because plaintiffs concede that they were "license......
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