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Sewermonger
09-Jul-2007, 08:25 PM
This is the monthly reminder that a self exam should be performed.

Cancer has no regard for any of us, but when I reminded Nancy she told
I had one on my shoulders.


--
Time flies like an arrow, fruit flies like a banana.

Kim Groneman
10-Jul-2007, 04:47 PM
Sewermonger,

> self exam should be performed

1 - How much is 2x2?
Answer: 4.
2 - What is the speed of light?
Answer: 186,000 miles/second.
3 - Bobby, age ten, attended Golden Sunshine Camp during the second week of
July 2001. On the morning of July 10, the camp counselors decided not to
postpone a previously scheduled softball game for the campers despite the
fact that the grassy field on which the game was to be played was wet from
a recent heavy rain. When Bobby came to bat, he hit the ball past the
outfield. As he was running between first base and second base, Bobby
slipped on the wet grass, and he fell, sustaining a fracture of his left
arm.

Don, a handyman at the camp, who had been watching the softball game, drove
Bobby to a local emergency room for medical care. On the way to the
hospital, Don said to Bobby that he told the camp director not to let the
children play softball on the wet grass that day, because he thought
someone might slip and get hurt.

At the time he registered his son for camp and paid the required fee,
Bobby's father signed a form captioned "RELEASE," which provided, "It is
hereby agreed that in consideration of the opportunity to participate in
Golden Sunshine Camp (the Camp), I, as the parent of a camper, fully
release and discharge the Camp of and from any and all potential liability
to me or my child in the event my child is injured during the course of
participation in any events held at the Camp."

1. Can Bobby's father bring timely claims for his son for his injuries and
for himself for medical expenses associated with the softball accident?

2. Assuming a claim can be timely asserted, and without regard to the
release, provide a detailed analysis of the camp's potential liability.

3. Assuming Bobby is ruled competent to testify at trial, discuss the
admissibility of his testimony regarding Don's statement.

4. Does the release signed at the time of registration bar any claims?

Answer:

1. At issue is the Statute of Limitations for a negligence action under New
York law.

Under New York law, the Statute of Limitations controls the amount of time a
plaintiff has to commence an action against a defendant. The Statute of
Limitations for a negligence action is three years from the negligent act.
The Statute of Limitations is tolled for a defendant who is 1) a minor or
2) insane and thus unable to commence an action. The tolled time period
allows a minor to commence the action within three years (the original
Statute of Limitations in this case) from the date of the minor’s 18th
birthday (when his incapacity/disability ends).

Here, the alleged negligent act took place in July 2001 and thus, the
Statute of Limitations to commence an action would expire in July of 2004
(three years from the negligent act). In this case, assuming he had a valid
claim, Bobby’s father would be unable to commence an action for himself
based in negligence because three years have passed since July 2001.

The toll applies to Bobby however, as he was a minor at ten years of age
when he fell and fractured his arm. Thus because of the toll, Bobby may
commence an action on his own when he reaches 18 and will have three years
to do so. His father may not, at this point, commence an action on Bobby’s
behalf, as the original Statute of Limitations has expired. Thus, Bobby’s
father may not bring timely claims for his son’s injuries and for himself.

2. At issue is whether the camp will be held liable for the actions of its
counselors.

Under New York law, an employer will be held vicariously liable for the
negligence of its employees acting within the scope of their employment.
The concept of respondent superior applies. This concept was developed so
that a harmed defendant might recover damages for her injuries from the
employer, who likely has more economic security than the employee.

Here, camp counselors are working to serve the Golden Sunshine Camp. Camp
counselors receive salaries and tips in exchange for their service of
employment. Thus, while acting within the scope of their employment, their
negligence will be passed to the camp through vicarious liability. The camp
will only be held liable however, if the counselors were negligent and thus
caused Bobby’s injuries.

Negligence is duty owed to the plaintiff, breach of that duty by the
defendant, causation (actual/proximate), and damages caused by the breach.

The counselors had a duty to act without negligence under 1) the reasonable
person standard and 2) because the counselor/camper special relationship.
The counselors breached that duty when they refused to postpone a softball
game, despite knowing that the field was wet from a very heavy rain. Common
sense would have revealed that such muddy conditions were likely to cause
an injury. Here, Bobby played in the game scheduled by the counselors,
fell, and fractured his arm. But for the counselors’ decision to schedule a
game in dangerous conditions, he would not have been injured. Thus, a
fractured left arm was the result (both actual and proximate because no
intervening/superceding event) of the counselors’ breach. Hence, because
the counselors were negligent while acting as "servants" of the employer,
the camp will be held liable for Bobby’s injuries.

3. The issue is whether Don’s statement qualifies as an admission, an
exception to hearsay under the federal rules of evidence.

Hearsay is an out-of-court statement, made by someone other than the
declarant who is testifying, to prove the truth of the matter asserted. An
admission is an exception to the hearsay rule under New York law. An
admission is an incriminating statement made by a party to the case or one
of his agents. Under New York law, an agent must be authorized to speak.

Here, Don’s statement was hearsay as it was made out of court and offered
for its truth. Don, a handyman, however would not be considered an agent of
the camp, because he did not have "speaking authority". While his statement
would have been admitted had he been the camp owner (party to case) or an
agent with speaking authority (lawyer), his statement will not be admitted
as an admission/exception to hearsay.

Don’s statement may be offered for its relevance however. Relevant
information/evidence tends to make a material fact more or less likely.

Here, the camp’s knowledge of wet grass and the fact that a child might slip
and get hurt would be relevant to proving negligence. Furthermore, it would
be admitted, absent a showing it is unduly prejudicial, to prove the camp’s
knowledge of a dangerous situation. Thus, Don’s statement would be
admitted.

4. At issue is whether the release signed by Bobby’s father bars his ability
to bring a claim against the camp.

Under New York law, an individual who pays a required fee may not be denied
his right to bring a claim against a negligent party who benefits from that
fee.

Under New York law, a parent who pays a required fee to a camp expects that
his child will be treated without negligence, as the existence of a special
relationship exists. Camp counselors are receiving a salary to supervise
children. The fee requires extra attention, as it is indicative of a
contract.

A child who is injured because of a camp’s or counselor’s negligence has a
right to receive damages for such injury.

Potentially, the camp could argue that Bobby "assumed the risk" by
participating and consenting to play in a sports event, but when such
injury is caused by a counselor’s negligence and not the inherent danger of
a game, the camp will be held liable. Thus, the release did not bar a claim
for negligence.

Ok....self exam complete. I pass.

--
Kim

Sewermonger
11-Jul-2007, 12:57 AM
slip slidding away
--
Time flies like an arrow, fruit flies like a banana.