Lesser ex rel. Lesser v. Camp Wildwood

• Decision Date: 16 September 2003
• Docket Number: No. 01 Civ.4209 RWS.,01 Civ.4209 RWS.
• Citation: 282 F.Supp.2d 139
• Parties: Jory LESSER, a minor, by his parents and natural guardians, David LESSER and Diane Lesser, and David Lesser and Diane Lesser, individually, Plaintiffs, v. CAMP WILDWOOD, Mark Meyer, Peter Meyer, and the Meyers Partnership, Defendants.
• Court: U.S. District Court — Southern District of New York

282 F.Supp.2d 139

Jory LESSER, a minor, by his parents and natural guardians, David LESSER and Diane Lesser, and David Lesser and Diane Lesser, individually, Plaintiffs, v. CAMP WILDWOOD, Mark Meyer, Peter Meyer, and the Meyers Partnership, Defendants.

No. 01 Civ.4209 RWS.

United States District Court, S.D. New York.

September 16, 2003.

Shafran & Mosley by Kevin L. Mosley, New York City, for Plaintiffs.

Traub Eglin Lieberman Straus by Stephen D. Straus, Gerard Benvenuto, Hawthorne, NY, for Defendants.

OPINION

SWEET, District Judge.

The defendants Camp Wildwood, Mark Meyer, Peter Meyer and the Meyers Partnership, have made two motions: (1) to preclude the use at trial of evidence, including opinions and testimony, from plaintiffs' retained experts on the grounds that the opinions and conclusions do not meet the standards of reliability imposed by Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and related cases; and (2) for partial summary judgment on plaintiffs' claims for negligent supervision and for premises liability.

For the reasons set forth below, the motion to preclude the use of evidence is denied in part and granted in part, and the motion for partial summary judgment is denied.

Prior Proceedings

The Lessers commenced this action on April 10, 2001 in New York State court. On May 16, 2001, the action was removed to the United States District Court, Southern District of New York on the basis of diversity jurisdiction. Discovery was concluded on May 14, 2003.

The motion by defendants to preclude the testimony of plaintiffs' experts was submitted in conjunction with defendants' motion for partial summary judgment on plaintiffs' negligent supervision and premises liability claims. Both motions were filed on June 4, 2003. After submission of briefs, the motions were considered fully submitted on July 9, 2003.

Facts

The following facts are taken from the parties' Rule 56.1 statements and, as required, are construed in the light most favorable to the non-movant, as applicable. They do not constitute findings of fact by the Court.

In the summer of 2000, plaintiff Jory Lesser, then 12 years old, was a camper at Camp Wildwood, a summer camp in Bridgton, Maine owned and managed by the defendants. On July 4, 2000, Jory Lesser was injured at the camp when a pine tree fell on him during a thunderstorm which arose after the start of a fireworks display on the waterfront of the camp.

Each summer, the camp services approximately 200 boys ranging from eight to fifteen years of age. The boys are divided by age into groups and housed with their peers in cabins.

The camp is an accredited member of the American Camping Association, ("ACA"), a private non-profit organization that promulgates standards for camps throughout the United States. The camp is also licensed by the state of Maine. Pursuant to state licensing requirements and the ACA accreditation process the camp is subject to inspection by both entities.

In connection with their ACA accreditation requirements, the camp is required to have procedures in place for emergency situations. With respect to dangers posed by severe weather conditions, the camp had the following protocol:

Severe Storm

In the case of anticipated high winds, heavy rain or electrical storm, the camp will be notified of storm warnings by the Bridgton Police Department.

The campers and staff are brought to upper camp (away from the waterfront and densely treed areas) and placed along the walls of the Gym for safety until the storm has passed and Head of Maintenance and Admin have had an opportunity to walk the grounds and identify the hazards and damage. (Naturally, if the Police Chief believes the impending storm warrants evacuation to a prepared area, that will be our response.)

Unexpected Storms

Storms sometimes build with amazing speed and can slam into Wildwood from the lake with little or no warning.

In this event, everyone will be evacuated from the waterfront and lower camp immediately. Counselors will escort all campers to the gym where a count will be taken and boys and staff will take protective positions along the gym walls until Admin declares an "All-Clear." No one will leave the building until possible damage has been located and assessed by Maintenance and Admin. Decisions will be made at that time, based on all available information, of which further course to follow and directions to staff and campers will be given accordingly.

Straus Decl. Exh. C.

The camp also has procedures for tree maintenance. The camp's caretaker, Glenn Zaidman, inspects the bushes and trees in the active areas of the camp on a daily basis. Zaidman is not a licensed arborist, and is not licensed to inspect trees. If Zaidman notices any problems, he contacts local arborist Paul Protty of Protty Tree Service. The plaintiffs dispute this, noting only that Protty visited the camp on occasion "to undertake certain tree care matters, if requested by defendants." Pl. Rule 56.1 Statement, at 5. The defendants describe Protty's inspections as consisting of "looking at each tree with the naked eye and binoculars for any external signs of fungal infection or rot and knocking on the tree to check for [hollow] areas or easily peeled bark," as well as "observing trees on windy days and climbing trees when necessary." Def. Rule 56.1 Statement at 5. The plaintiffs note that Protty could not testify with certainty that he inspected the tree which fell on Jory Lesser, and did not inspect the tree at or around the point where it failed — 15 to 20 feet above the ground. See Pl. Rule 56.1 Statement at 5.

The fireworks display was set up and launched by Zaidman. In addition to being the camp's caretaker, Zaidman is a pyrotechnician licensed by the State of Maine to discharge fireworks. Zaidman testified that he periodically and repeatedly checked the weather on the internet at "weather.com Yahoo." Straus Decl. Exh. D at 69. The plaintiffs dispute this, citing the testimony of one of the defendants that "[i]n the year 2000 he [Zaidman] wanted nothing to do with computers." Pl. Rule 56.1 Statement at 9. The plaintiffs also note that the possibility of thunderstorms had been noted by the National Weather Service as early as 9:30 PM on July 3. Id. at 9-10.

The fireworks display commenced sometime after sunset, which was at 8:29 P.M. There were approximately 800 counselors, staff and campers in attendance. According to the defendants, there was no wind or rain when the display commenced, although plaintiffs note that defendant Mark Meyer testified that the sky was overcast after dinner, around 7 P.M. Soon after the fireworks display commenced, it started to rain. The rain and wind intensified in a very short period of time. Defendants Mark Meyer and Peter Meyer and non-party Daniel Isdaner testified that they and "all counselors in attendance immediately shouted instructions to evacuate the beachfront and seek shelter in nearby bunks." Def. Rule 56.1 Statement at 6.

Plaintiff Jory Lesser acknowledges having heard and heeded the shouted instructions and proceeded through the Junior Grove. The defendants assert that Jory Lesser was heading toward the bunks, Def. Rule 56.1 Statement at 7, but plaintiffs counter that he "was lost and confused and never saw a bunk." Pl. Rule 56.1 Statement at 13 (citing Mosley Decl. Exh. G at 46-48 (J. Lesser Dep.)). While in the Junior Grove, Jory Lesser was struck and injured by a falling tree. The trunk of the tree snapped approximately 15-20 feet from the ground, and the portion of the tree that fell was approximately 100 feet in length.

Motion to Preclude Expert Testimony

Standard of Review

The standard for the admissibility of expert testimony is set forth in Federal Rule of Evidence 702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the case.

Fed.R.Evid. 702.

The standard was the subject of extensive analysis by the Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Daubert charges "trial judges with the responsibility of acting as `gatekeepers,'" in light of the fact that "the Federal Rules of Evidence `assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.'" United States v. Salim, 189 F.Supp.2d 93, 99-100 (S.D.N.Y.2002) (quoting Daubert, 509 U.S. at 597, 113 S.Ct. 2786). Thus, "[t]he determination as to the relevance and reliability of such evidence is committed to the sound discretion of the trial court." Daubert, 509 U.S. at 591, 113 S.Ct. 2786. In Kumho Tire Co. v. Carmichael, the Supreme Court clarified that this gatekeeper function applies to all expert testimony, not just scientific testimony. 526 U.S. at 147, 119 S.Ct. 1167 (explaining that Rule 702 makes "no relevant distinction between `scientific' knowledge and `technical' or `other specialized' knowledge. It makes clear that any such knowledge might become the subject of expert testimony.").

The Supreme Court provided district courts with a checklist for assessing the reliability of expert testimony. This list of "specific factors" "neither necessarily nor exclusively applies to all experts or in every case." Id. at 141, 119 S.Ct. 1167. Listed considerations include whether an expert's theory can be tested, "whether the theory or technique has been subjected to peer review...