Recreation and Parks Law Reporter (RPLR) case report, © copyright 1998 NRPA FAILURE TO SUPERVISE BOY SCOUT ON WILDERNESS HIKE
McGARR v. BOY SCOUTS OF AMERICA
536 A.2d 728 (Md.App. 1988)
Court of Special Appeals of Maryland
February 5, 1988In this case, plaintiff Chadwick McGarr was injured on a camping excursion while a member of Boy Scout Troop No. 366. McGarr, age 11, "was injured when he fell over a precipice into a partially frozen stream." The facts of the case were as follows:
The accident occurred on March 1, 1980, at the Lill-Aaron Straus Campground, a 900-acre campground near Hancock, Maryland, owned by defendant Baltimore Area Council, Boy Scouts of America (BAC). Troop 366, led by defendant Charles Fowler, arrived around noon that day for an overnight excursion; it had received permission from BAC to camp at Tabler Lodge, one of several cabins on the campground. Tabler Lodge sits on a peninsula, with the Potomac River to the south and Sideling Creek to the north and east. It is a wilderness area, heavily wooded and hilly...
McGarr's application to become a scout was dated and filed the very day of the camping trip and showed him as a "New Boy Scout." Although he had been to two or three prior meetings of Troop No. 366, he had received no training or instruction in camping and had never before been overnight camping. He was told simply to bring warm clothes and certain "camping gear."... After lunch, the scouts, led by some senior scouts, went hiking on a path parallel to the Potomac River. Fowler, apparently, remained at the lodge.
McGarr knew only two of the other scouts - 10-year-old Chris Maxie and David Hummer. At some point on the hike, Maxie became frightened because of the steepness of the grade and decided to return to the lodge. McGarr agreed to accompany him. After informing the scout leaders, McGarr and Maxie turned around and walked back toward the lodge.
According to McGarr, as they got to the lodge, they saw Fowler, who "asked us to go get some firewood - kindling for the fire." He gave them no specific instruction as to where to go to get the firewood. According to McGarr, he and Maxie gathered and brought back two loads of wood. In the course of searching for a third load in the area between the lodge and Sideling Hill Creek, Maxie said "he thought he heard some water and we were curious so we went - we went down to see where it was."
The area, said McGarr, was heavily wooded and covered with leaves and branches. Snow had begun to fall, making the ground slippery. From McGarr's and Maxie's testimony and from the photographs in evidence, it appears that the land sloped away from the lodge, gradually at first and then more steeply. McGarr said that they "had to walk side-to-side and slide some of the ways by holding on to the trees." At some point, they were sliding down on their backsides.
Eventually, they stopped. McGarr was just ahead of Maxie and was holding onto a tree. He was apparently just at the edge of a 15 to 40 foot cliff but could not see the creek below. Other evidence in the case also indicated that, because of the trees and brush, the precipice was not readily visible. Maxie, however, said that he saw what "looked like there was a drop off and I couldn't see anything after that." He yelled to McGarr not to go any farther. McGarr said he heard Maxie yell something, but could not hear what it was. Just then, the tree he was holding onto broke, and he fell over the cliff.
In his complaint, McGarr alleged that the area where he "fell was dangerous and that Fowler neglected to familiarize himself with the area, to warn McGarr of the danger, and to give proper supervision to McGarr." McGarr further alleged that the BAC was liable "as owner of the land where the accident occurred and as a principal vicariously responsible for Fowler's negligence." The trial court dismissed McGarr's claims against both BAC and Fowler. In addition, the trial court found that McGarr had assumed the risk of injury and was contributorily negligent. McGarr appealed.
The question before the appeals court was whether the trial court had erred in dismissing McGarr's case prior to consideration by a jury on the issues of assumption of risk and contributory negligence. Quoting Prosser and Keeton, authorities on tort law, the appeals court described the legal standard to which children are held as follows:
The capacities of children vary greatly, not only with age, but also with individuals of the same age; and it follows that no very definite statement can be made as to just what standard is to be applied to them. To a great extent it must necessarily be a subjective one. The standard which is ordinarily applied, and which is customarily given to the jury, is to measure the child's conduct against what would be reasonable to expect of a child of like age, intelligence and experience. There is something of an individual standard: the capacity of the particular child to appreciate the risk and form a reasonable judgment must be taken into account.
Applying these principles to the facts of the case, the appeals court concluded that "a jury question was presented as to whether, and at what point, the danger was a sufficiently obvious one to invoke the doctrine of assumption of risk and as to whether McGarr's conduct, under the circumstances was negligent."
[I]t is clear that the area was potentially dangerous. The ground was slippery, the slope became progressively steeper, ending in a precipice. There were no warning signs; no warnings had been given to the scouts. McGarr and Maxie - 11 and 10 years old, respectively - were inexperienced scouts on their first overnight camping trip. They had been given no special training or instruction in hiking. Neither McGarr nor Maxie saw sufficient danger to deter them from starting down the hill, even from sliding down on their rear ends.
That Maxie - apparently the more cautious of the two given his reluctance to continue on the approved hike to the Potomac River - was able to stop a few feet from the precipice does not mean that McGarr was necessarily "guilty" of contributory negligence or assumption of risk, as least not as a matter of law [i.e. beyond question]. As we indicated, McGarr said that he could not see the precipice and that he did not venture further after a warning from Maxie but simply fell off when the tree he was holding broke.
The appeals court also considered the potential landowner liability of BAC to McGarr. In so doing, the court assumed that McGarr was an invitee on BAC's land. In pertinent part, the court described "the law governing a landowner's obligation to persons on his property" as follows:
Under existing Maryland law, the liability of a property owner to an individual injured on his property is dependent on the standard of care owed to the individual and that, in turn, is contingent upon a determination of the individual's status while on the property, i.e. whether he is an invitee, licensee, or trespasser. An invitee is in general a person invited or permitted to enter or remain on another's property for purposes connected with or related to an owner's business; the owner must use reasonable and ordinary care to keep his premises safe for the invitee and to protect him from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for his own safety, will not discover...
None of the critical elements stated in the standard of care applicable to invitees - reasonable ordinary care, keep the premises safe, unreasonable risk, undiscoverability by the invitee - can be viewed in a vacuum or an abstractions. They take their meaning from the circumstances, and, in particular, from the nature of the premises and the invitee. The duty, itself, of course, remains fixed; what vary are the measures needed to satisfy that duty. What is reasonable in one circumstance may not be reasonable in another... In determining the extent of preparation which an invitee is entitled to expect to be made for his protection, the nature of the land and the purposes for which it is used are of great importance.
Insofar as the nature of the land is concerned, it is self-evident that raw, unimproved, wooded, mountainous, virginal land - wilderness - presents quite different hazards, both latent and patent [i.e. hidden and obvious], than improved residential or commercial property. One naturally assumes many ordinary risks when in the woods and in the country - trails are not smooth sidewalks, paths are not paved; trees, brush and insects are to be expected; and even snakes may appear occasionally. These and more are all part of accepted camp life. The city dweller who chooses to spend his vacation in the great outdoors, must in addition to accepting the fresh air and lake breezes assume the risks of the natural hazards of the outdoors such as flies, mosquitoes, snakes, poison ivy and other natural conditions not found in the urban communities. That does not mean, of course, that the owner of such land is completely absolved from all responsibility. One must also consider the purpose for which the land is used and the type of person likely to use it.
Applying these principles to the facts of the case, the appeals court concluded that a jury could find landowner liability for negligence.
The campground here was not owned by BAC for some unique private purpose, to the exclusion of others; it was used - perhaps exclusively - for Boy Scout camping trips. Indeed, the evidence showed that BAC solicited Boy Scout troops to use it for that purpose. [In order to use the campground, a Boy Scout troop had to make and application and pay a $25 fee to receive a tour permit.] BAC must have expected, then, that youngsters with varying degrees of outdoor camping and hiking skills would be roaming through the area, including the area [where the accident occurred] near Sideling Hill Creek. It must have expected, or at least should have anticipated, that these children would not be under strict supervision all the time, that children from urban or suburban areas might become curious at the sound of running creeks, and that they might venture off to investigate them. That carries with it some responsibility... [A] possessor of land must consider, in exercising reasonable care to make premises safe from any unreasonable risk of harm to his invitees, the capacity of children to understand dangers.
We do not suggest that BAC was obliged to alter the rugged topography of the land, to change its wooded condition, to erect extensive walls or fences, or to nail a warning sign to every tree. The fact is, however, that the area did present a danger to young, inexperienced hikers, one that, on this record at least, might not be immediately apparent to such hikers. To do nothing - to post no warning signs, to omit any mention of the danger to the scouts or even to the scoutmaster, and to leave the precipice without a guardrail of some kind - a jury could find constituted a failure to use reasonable and ordinary care to keep the premises safe for the young invitees and to protect them from injury caused by an unreasonable risk which the risk which the invitee, using ordinary care for his own safety, will not discover, i.e. negligence.
Based upon the following facts, the appeals court also found that a jury could have found Fowler liable for negligent supervision of McGarr.
There can be little doubt that, as scoutmaster of Troop 366, as leader of the expedition, and as the person to whom McGarr's safety was entrusted, Fowler had a legal responsibility to take reasonable precautions for McGarr's safety. Quite apart from the general legal duty owed by anyone who undertakes the supervision of a child, the Official Scoutmaster Handbook, published by the Boy Scouts of America... states in the section on outings, "All Boy Scout outdoor activities must meet rigorous standards of health, safety, and program. Continued vigilance is necessary to ensure that Scouts have high-quality, outdoor experiences that do not expose them to unnecessary risks. On unit outings as Scoutmaster you assume responsibility for the health and safety for the members of your troop. Adequate supervision of each Scout in your troop through verbal and visual communication is essential.
Fowler acknowledged this duty and admitted that the following preparation was necessary prior to camping in the mountains:
[Y]ou look to see what's around you; you look at your maps of your area and you make an assessment from that and work on that basis... If you go into a new area that you haven't been before you should get advice from someone who has been there, or you should study what's available as far as topo maps and the like.
Despite this knowledge, the appeals court found that "Fowler, who had not previously been to Tabler Lodge, did not surveil the area, did not have a topographical map, and had not consulted anyone knowledgeable about the immediate area." Fowler felt that "the 'sketch map' he obtained from the ranger was sufficient" because he and the scouts "didn't intend to take any extended tours into the back country or anything like that." Although it could be found on a topographical map, Fowler "knew about the precipice." According to Fowler, "unless you were looking specifically for it, I doubt if there's one person in a thousand who would spot that particular thing as being as it really is."
Given these facts, the appeals court concluded that a jury could find Fowler was negligent. Specifically, Fowler was negligent when, upon returning from a hike, he instructed Maxie and McGarr "to go out and gather firewood, without any direction as to where to go or not to go, without any warnings, and without any supervision."
Despite finding Fowler negligent, the appeals court rejected McGarr's argument that BAC was also liable for negligent supervision because Fowler was acting as BAC's agent. In the opinion of the court, the facts of this case "failed to support any such agency relationship" which would impose vicarious liability on BAC for Fowler's actions.
BAC is an umbrella organization; it 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, who is selected by the troop. In these circumstances, it is generally held that the council is not vicariously liable for the negligence of the scoutmaster.
Given the facts of this case, the appeals court concluded that a jury could have found both BAC and Fowler liable for negligence. As a result, the appeals court found that the trial court had erred in dismissing McGarr's negligence claims against BAC and Fowler prior to any consideration by a jury. The appeals court, therefore, vacated the judgments of the trial court in favor of defendants BAC and Fowler and remanded this case back to the trial court for a new trial. On remand, a jury would consider McGarr's allegations of negligence against BAC and Fowler.