PPA v. LTD (2013)

MEMORANDUM OF DECISION RE U.S. LACROSSE, INC. MOTION FOR SUMMARY JUDGMENT (# 159)

On May 24, 2013, the plaintiff, Patrick Rider, filed an amended four-count complaint against the defendants, Tennis Enterprises, Ltd., Farmington Farms Tennis & Athletic Club, Inc., the town of Farmington, and U.S. Lacrosse, Inc.,¹ on behalf of his son, the minor plaintiff, Daniel Rider.

The plaintiff alleges the following facts.   On March 19, 2010, the minor plaintiff, a member of the Farmington Youth Lacrosse Club (FYLC), was participating in a lacrosse practice on a tennis court located at 94 Brickyard Road, Farmington, Connecticut.   The premises are owned by Tennis Enterprises, Ltd. and operated by Farmington Farms Tennis & Athletic Club. The minor plaintiff was under the supervision of the FYLC when he struck his left thigh on an open tennis net hook, which caused him to sustain injuries.   The FYLC is authorized to conduct practices and athletic activities under the auspices of the defendant.   In order to be a member of the FYLC, the minor plaintiff was required to be a member of the defendant.   The defendant owed a duty of care to the minor plaintiff to adequately and properly train and instruct the coaches who supervised, managed, and controlled the activities of the FYLC. The minor plaintiff's injuries and losses were caused by the negligence and carelessness of the defendant in that it failed to adequately train the coaches and supervisors of the FYLC to recognize potentially dangerous conditions and failed to train the FYLC coaches and supervisors to warn players of potentially dangerous conditions or to take measures to mitigate, remedy or avoid potentially dangerous conditions.

On July 26, 2013, the defendant filed a supplemental motion for summary judgment and a supporting memorandum of law.²  On September 10, 2013, the plaintiff filed an objection.   On September 17, 2013, the defendant filed a supplemental memorandum.   On September 20, 2013, the plaintiff filed a supplemental memorandum of law in opposition to the defendant's motion.   These are the only pleadings considered by the court in connection with the supplemental motion.

I

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ․ However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  footnote omitted;  internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012).

In the present case, the defendant argues in its supplemental memorandum of law that its alleged conduct, even if proven true, is too remote from the manner in which the minor plaintiff sustained his injury to be considered a proximate cause as a matter of law.   The defendant also argues it is immune from liability under the Volunteer Protection Act (VPA), 42 U.S.C. § 14501 et seq. (1997).

In support of its motion, the defendant submits the affidavit of Michael Colavecchio, the president of FYLC, and two affidavits of Steven Stenersen, the defendant's chief executive officer.   Colavecchio states in his affidavit that FYLC is a nonprofit organization, that all coaches are unpaid volunteers, and that at the time of the incident, “it was within the scope of responsibility of FYLC Coaches to oversee and supervise FYLC practices and athletic activities.”   Stenersen states in his first affidavit, dated January 14, 2013, that the defendant offers voluntary individual memberships to lacrosse players, coaches, officials, program administrators, and other individuals involved in or supportive of the sport.   He states that the defendant does not and cannot require lacrosse players from FYLC to become members of U.S. Lacrosse.   Stenersen also states that (1) the defendant and the FYLC are two separate and distinct entities;  (2) the defendant is not affiliated with FYLC or the other defendants named in this action and that the FYLC is completely independent from the defendant;  (3) the defendant has no control over the operations or decisions of FYLC or the other defendants named in this action and is not responsible for the training or supervision of its coaches and adult supervision;  (4) the defendant was not involved in selecting or ensuring the suitability for lacrosse play where the alleged accident occurred;  (5) the FYLC does not act under the auspices of the defendant;  (6) the defendant does not own, possess, or control the premises where the alleged accident is set to have occurred, nor does the defendant have any obligations to maintain, inspect or repair the premises or the equipment located thereon;  (7) the defendant is not responsible for the set-up, design, condition, or arrangement of equipment at the premises where the alleged accident occurred;  (8) no employee or representative of the defendant is responsible for supervising, controlling, or managing the FYLC members;  and (9) no employee or representative of the defendant inspected, maintained, or approved the location or equipment used at the premises, nor did they have the responsibility to do so.   Stenersen states in his second affidavit, dated July 25, 2013, that (1) the defendant is a separate and distinct entity from FYLC;  (2) FYLC coaches are independent from the defendant;  (3) the defendant exercises no control over FYLC coaches;  and (4) the defendant does not pay nor employ FYLC coaches.

The plaintiff counters in its memorandum of law that the defendant fails to cite any applicable case law for its position regarding causation and that the VPA does not apply to the defendant.   In support of his objection, the plaintiff submits (1) a signed and sworn affidavit of the plaintiff;  (2) a signed and sworn affidavit of Matthew S. Carlone;  and (3) copies of printouts from the defendant's official website.   In his affidavit, the plaintiff states that the minor plaintiff was required to be a member of the defendant;  he paid the minor plaintiff's membership fees;  the minor plaintiff was a member of the defendant;  the plaintiff has received numerous solicitations from the defendant directing the minor plaintiff to sign up for various FYLC camps and leagues through the town of Farmington;  prior to coaching for the FYLC, an individual must be trained and certified by the defendant;  and Coach Ruch and Coach Sopelak, two coaches who conducted the lacrosse practice at the time of the alleged injury, were trained and certified by the defendant.   Carlone states in his affidavit that he visited the official website for the defendant and attached true and accurate printouts from the defendant's official website.   The printouts from the defendant's official website include certification course descriptions and instructional clinics for coaching lacrosse.

“The plaintiff's cause of action invokes the well established proposition that a tortfeasor is liable for all damages proximately caused by its negligence ․ The elements of a negligence cause of action are duty, breach, proximate cause and injury ․ To prevail on a negligence claim, a plaintiff must establish that the defendant's conduct legally caused the injuries ․ [L]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation.   The first component of legal cause is causation in fact.   Causation in fact is the purest legal application of ․ legal cause.   The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct ․ Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions ․ The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant's negligent conduct ․ In negligence cases such as the present one, in which a tortfeasor's conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor's duty to the plaintiff ․ Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action.   The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual ․ Although it has been said that no universal test for [duty] ever has been formulated ․ our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant.   The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.   A simple conclusion that the harm to the plaintiff was foreseeable, however cannot by itself mandate a determination that a legal duty exists.   Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed ․ A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection ․ While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world.”  (Citations omitted;  internal quotation marks omitted.)   Vaillancourt v. Latifi, 81 Conn.App. 541, 545–47, 840 A.2d 1209 (2004).

“[P]roximate cause [is] defined as an actual cause that is a substantial factor in the resulting harm ․ The test for proximate cause is whether the defendant's conduct was a substantial factor in producing the plaintiff's injury ․ This substantial factor test reflects the inquiry fundamental to all proximate cause questions, namely, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence ․ The question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue ․ It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion;  if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact.”  (Citations omitted, internal quotation marks omitted.)  Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 321–22, 852 A.2d 703 (2004).

In the present case, the defendant argues that it is entitled to summary judgment as a matter of law because there is no genuine issue of material fact that it was not the proximate cause of the injuries suffered by the minor plaintiff.   The defendant submits affidavits to demonstrate that the defendant and the FYLC are two separate entities, and that the defendant does not control the operations of the FYLC, employ FYLC coaches, or exercise control over the FYLC coaches.   These affidavits, however, do not demonstrate that the minor plaintiff's alleged injury was not a foreseeable risk created by the defendant's training of the FYLC coaches, nor do the affidavits demonstrate why recovery should be denied if the alleged injury was foreseeable by the defendant.   The defendant has not provided any evidence to demonstrate that the minor plaintiff's injury was not a foreseeable risk created by the defendant's training of the FYLC coaches, who are alleged to have acted negligently.   Accordingly, whether the defendant's alleged conduct is the proximate cause of injury to the minor plaintiff remains a genuine issue of material fact.

In addition, the defendant has failed to demonstrate that it is entitled to summary judgment as a matter of law.   The defendant cites to Vaillancourt v. Latifi, 81 Conn.App. 541, 840 A.2d 1209 (2004), and Sullivan v. Quiceno, Superior Court, judicial district of New Haven, Docket No CV–05–4003173–S (October 5, 2007, Holzberg, J.) (44 Conn. L. Rptr. 338), for the proposition that an entity that provided training to a referee or official cannot be held liable as a matter of law for the training it gave to a referee or official who is alleged to have acted negligently.

The defendant's reliance on these cases, however, is misplaced.   In both cases, the courts granted the motions for summary judgment because the courts determined that individuals who serve as officials cannot be presumed to foresee malicious and intentional acts of bad sportsmanship.   Here, the plaintiff does not allege that the minor plaintiff was injured by another player, that another player created the dangerous condition or that the condition was the result of an act of bad sportsmanship.   Rather, the plaintiff alleges that the minor plaintiff was injured by the presence of an open tennis net hook, a physical and tangible condition that the coaches, who were trained by the defendants, failed to inspect for and/or remedy.

The defendant also cites to Bailey v. Oyster Bay, 227 A.D.2d 427, 642 N.Y.S.2d 903 (1996);  Simpson v. Byron Dragway, Inc., 210 Ill.App.3d 639, 569 N.E.2d 579, 155 Ill.Dec. 398 (1991), and McInturff v. Battle Ground Academy of Franklin, Tennessee Court of Appeals, Docket No. M2009–00504–COA–R3–CV (December 16, 2009).   Reliance on these cases is also similarly misplaced.   In Bailey and Simpson, the courts held that the defendants did not owe a duty of care as to premises liability because there was no evidence of control or ownership of the premises.   In McInturff, the court held that the umpire was not an agent for the defendant as the plaintiff alleged nor did the defendant control the means and methods as to how the umpires work.

Herein, the plaintiff does not allege that the defendant owed a duty of care as to premises liability;  nor does the plaintiff allege that the FYLC coaches are agents of the defendant or that the defendant controls the means and methods as to how the coaches work.   Rather, the plaintiff alleges that the defendant negligently trained the FYLC coaches, and as a result of that training, they acted negligently in failing to inspect the premises for dangerous conditions, specifically, the open tennis net hook.   The defendant does not cite, nor does research reveal, any authority that dismisses a negligence action against an organization for training and/or certifying coaches who are alleged to have acted negligently in supervising or conducting an athletic activity.

Finally, the defendant argues that the Volunteer Protection Act (VPA), 42 U.S.C. § 14501 et seq. (1997), shields the defendant from all claims in this action.   The VPA provides in relevant part:  “Except as provided in subsections (b) and (d) of this section, no volunteer of a nonprofit organization or governmental entity shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization or entity if—(1) the volunteer was acting within the scope of the volunteer's responsibilities in the nonprofit organization or governmental entity at the time of the act or omission;  (2) if appropriate or required, the volunteer was properly licensed, certified, or authorized by the appropriate authorities for the activities or practice in the State in which the harm occurred, where the activities were or practice was undertaken within the scope of the volunteer's responsibilities in the nonprofit organization or governmental entity;  (3) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer ․” 42 U.S.C.A. § 14503(a).   It further provides, in relevant part:  “[n]thing in this section will be construed to affect the liability of any nonprofit organization or governmental entity with respect to harm caused to any person.”  42 U.S.C.A. § 14503(c).

The defendant's reliance on this statute is misplaced.   The statute serves to shield a volunteer from liability if the volunteer was acting within the scope of the volunteer's duties for a nonprofit organization.   In the present case, the defendant is not a volunteer.   Rather, the defendant is the organization that is alleged to have trained the FYLC coaches who are alleged to have acted negligently.   Whether the coaches are volunteers and whether the FYLC is a nonprofit organization is irrelevant in determining the liability of the defendant to the plaintiff.   Further, the VPA does not shield nonprofit organizations from liability.   Therefore, the VPA does not shield the defendant from liability for the training of the FYLC coaches.

CONCLUSION

Accordingly, for all the foregoing reasons, the motion for summary judgment is hereby denied.

Peck, J.

FOOTNOTES

FN1. As the motion for summary judgment was filed only by U.S. Lacrosse, Inc., hereinafter, it will be referred to as the defendant..  FN1. As the motion for summary judgment was filed only by U.S. Lacrosse, Inc., hereinafter, it will be referred to as the defendant.

FN2. At oral argument, held on September 16, 2013, the defendant represented to the court that it did not intend to proceed on its first motion for summary judgment, docket entry # 142, filed on January 18, 2013.   Therefore, no pleadings associated with the first motion for summary judgment were considered for the purpose of this memorandum of decision..  FN2. At oral argument, held on September 16, 2013, the defendant represented to the court that it did not intend to proceed on its first motion for summary judgment, docket entry # 142, filed on January 18, 2013.   Therefore, no pleadings associated with the first motion for summary judgment were considered for the purpose of this memorandum of decision.

Peck, A. Susan, J.