Reed v. Nat'l Council Of The Boy Scouts Of Am. Inc

• Decision Date: 03 February 2010
• Docket Number: Civil No. 08-cv-45-JL.
• Citation: 706 F.Supp.2d 180
• Parties: Brahms REEDv.NATIONAL COUNCIL OF the BOY SCOUTS OF AMERICA, INC. and Boston Minuteman Council, Inc.
• Court: U.S. District Court — District of New Hampshire

706 F.Supp.2d 180

Brahms REEDv.NATIONAL COUNCIL OF the BOY SCOUTS OF AMERICA, INC. and Boston Minuteman Council, Inc.

Civil No. 08-cv-45-JL.

United States District Court,

D. New Hampshire.

Feb. 3, 2010.

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John W. Laymon, Law Offices John W. Laymon, Boston, MA, Francis X. Quinn, Jr., Boynton Waldron Doleac Woodman & Scott, Portsmouth, NH, for Plaintiff.

Jonathan M. Shirley, Devine Millimet & Branch PA, Manchester, NH, Michael J. Mazurczak, Erin J.M. Alarcon, Melick Porter & Shea LLP, Boston, MA, for Defendant.

OPINION AND ORDER

JOSEPH N. LAPLANTE, District Judge.

This personal injury action raises questions about the liability of a landowner who allows sledding on its property, as well as New Hampshire's application of the collateral source rule. Brahms Reed has sued the National Council of the Boy Scouts of America, Inc. (the “BSA”) and one of its affiliated entities, the Boston Minuteman Council, to recover for serious injuries he suffered falling off a sled during an outing with another one of BSA's chartered organizations, Troop 469, headquartered in Portsmouth, New Hampshire. Reed, who was eleven years old at the time, alleges that these injuries occurred because scoutmasters from the troop failed to supervise him and because Boston Minuteman, who owns the property where Reed's accident occurred, failed to warn him of the dangers of sledding.

Boston Minuteman has moved for summary judgment, arguing that the dangers of sledding were obvious, even to an eleven-year old, so it had no duty to warn of them. In the alternative, Boston Minuteman argues that Reed's claims against it are barred by New Hampshire's recreational use statute, N.H.Rev.Stat. Ann. § 508:14. BSA, whose own motion for summary judgment was denied in an oral order,¹ has moved in limine to exclude evidence of Reed's medical expenses and lost earnings from the upcoming trial. This court has diversity jurisdiction over this action between Reed, a New Hampshire citizen, and the defendants, out-of-state corporations. See 28 U.S.C. § 1332(a)(1).

After oral argument, the court grants Boston Minuteman's motion for summary judgment because, as a matter of law, it had no duty to warn Reed of the risks of sledding and, in the alternative, there is no dispute that Boston Minuteman allowed members of the general public to use the land in question for recreational purposes, conferring immunity under the recreational use statute. As to BSA's motions in limine, the court rules that (1) Reed cannot recover the medical expenses he incurred before he reached the age of majority in this action, because the financial responsibility for those expenses fell to his mother, who is not a party here, (2) under the collateral source rule, Reed may introduce evidence of any post-majority medical bills, even if they were “written off” by his providers as a result of their agreements with his insurers, and (3) Reed cannot recover future lost wages because he lacks the necessary expert testimony discounting those sums to net present value.

I. Background

The facts relevant to the pending motions are more or less undisputed. At the beginning of the 2000-2001 school year, when Reed was eleven years old, his mother registered him to participate in scouting activities with Troop 469, which had been organized by a group of parents at Portsmouth Middle School. The troop was what the BSA refers to as a “chartered organization,” meaning that the parents had received a charter from the BSA that entitled the troop to make use of BSA emblems, uniforms, scouting manuals, and other literature. Under the charter, though, the troop retained “considerable flexibility in determining what portions of the Scouting program should be emphasized in [its] activities.” For example, BSA exercised no authority over the troop's day-to-day activities or the selection, training, or supervision of its scout leaders.

Even the decision to issue the charter to Troop 469 was not made by the BSA, but by Daniel Webster Council, a non-profit organization itself chartered by the BSA. Like the BSA, the council had no involvement in the troop's day-to-day operations or the selection of its scout leaders. The council did, however, provide some training to Troop 469's adult scoutmaster at a weekend course covering subjects like leading a troop, organizing activities, and handling emergencies. For reasons that are not apparent from the record, neither Troop 469 nor the Daniel Webster Council was named as a defendant here.

In January 2001, Troop 469 embarked on an overnight camping trip to T.L. Storer Camp in Barnstead, New Hampshire, a facility owned by defendant Boston Minuteman. Reed was the youngest scout to make the trip; the boys were joined by their scoutmaster and assistant scoutmaster, both adults with minor sons in the troop. While T.L. Storer charges for the use of its cabins-and Troop 469 had to pay a “facilities fee” to use them-members of the general public who wish to use the property for recreational purposes are allowed to do so for free.

The morning after their arrival, the scouts, accompanied by their scoutmasters, began sledding and snowboarding down a hill at the camp. At some point, the boys began building a jump out of snow near the bottom of the hill; at some later point, both the scoutmaster and the assistant scoutmaster returned to the cabins to begin preparing lunch, leaving the scouts without adult supervision. This was done in derogation of the BSA's Guide to Safe Scouting, which provides that “winter activities must be supervised by mature and conscientious adults (at least one of whom must be age 21 or older) who understand and knowingly accept responsibility for the well-being and safety of the youth in their care.... Direct supervision should be maintained at all times by two or more adults when Scouts are ‘in the field.’ ” Nobody from Boston Minuteman warned the scouts of the dangers of sledding or snowboarding, and there were no signs to that effect posted anywhere at T.L. Storer.

Before the scoutmasters left, many of the scouts were sledding over the jump, while either sitting or standing on toboggans. During this period, Reed noticed that some of the other scouts had stumbled, but not fallen, in attempting the jump while standing. When Reed first attempted the jump while standing, he slipped and landed on his back, but was not hurt.

After the scoutmasters left, Reed attempted the jump a second time while standing. This time, he landed awkwardly, breaking his right leg and injuring the growth plate. This caused Reed's right leg to stop growing at the same rate as his left leg, necessitating a number of corrective surgeries and other interventions, the vast majority of which occurred while he was still a minor. For reasons that are not apparent from the record, this action was not brought until after Reed had reached the age of majority. See N.H.Rev.Stat. Ann. § 508:8 (tolling the limitations period on actions by a minor until two years after he reaches the age of majority).

II. AnalysisA. Boston Minuteman's motion for summary judgment

Summary judgment is appropriate where the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In making this determination, the “court must scrutinize the record in the light most flattering to the party opposing the motion, indulging all reasonable inferences in that party's favor.” Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir.2003).

Boston Minuteman moves for summary judgment on two independent grounds: first, that Reed's claim against it is barred by New Hampshire's recreational use statute and, second, that Boston Minuteman had no duty to warn Reed of the risks of sledding because those risks are obvious, even to an eleven-year old. Boston Minuteman is correct on both counts.

1. The recreational use statute

The New Hampshire recreational use statute provides that “[a]n owner ... who without charge permits any person to use land for recreational purposes ... shall not be liable for personal injury ... in the absence of intentionally caused injury or damage.” N.H.Rev.Stat. Ann. (“RSA”) § 508:14, I. The New Hampshire Supreme Court has interpreted the phrase “any person,” as it appears here, to mean “any person as a member of the general public. Thus, for RSA 508:14, I to grant immunity, private landowners must permit members of the general public to use their land for recreational purposes.” Estate of Gordon-Couture v. Brown, 152 N.H. 265, 271, 876 A.2d 196 (2005) (citation omitted).

Reed acknowledges that he is seeking to hold Boston Minuteman liable, as the owner of the T.L. Storer Camp, for personal injury that was negligently, as opposed to intentionally, caused. He argues, however, that § 508:14 does not apply because Boston Minuteman does not “permit members of the general public to use T.L. Storer for recreational purposes.” As noted above, members of the general public who wish to use T.L. Storer for recreational purposes are allowed to do so free of charge, according to an affidavit submitted by a Boston Minuteman executive. To attempt to dispute this, Reed relies on solely on the testimony of the T.L. Storer “campmaster,” that “[o]nly Boy Scouts and Cub Scouts can stay at the camp.” ²

A limitation on who can “stay at the camp,” though, is not the same as a limitation on who can “use [the] land for recreational purposes,” which is the relevant inquiry under the statute. Gordon-Couture, 152 N.H. at 271, 876 A.2d 196. As one of the decisions cited approvingly in Gordon-Couture makes clear, “a landowner need not allow all persons to use the property at all times” for recreational use immunity to apply. Snyder ex rel. Snyder v. Olmstead, 261 Ill.App.3d 986, 199 Ill.Dec. 703, 634 N.E.2d 756, 761 (Ill.App.Ct...