PPA v. Jesse W. Eddy (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 111

INTRODUCTION

The plaintiff has filed a writ, summons and complaint dated June 25, 2013 with a Return date of July 30, 2013.   The original complaint contained two Counts alleging negligence and recklessness.   The defendant is a young man by the name of Jesse W. Eddy. The plaintiff filed an amended complaint on August 28, 2013 which contained the same causes of action.   The defendant filed a motion to strike Count Two alleging recklessness.   On October 30, 2013, the court, Judge Matasavage, granted the motion to strike count two.   The defendant has filed an answer and special defenses.   One of the special defenses claims that the defendant has immunity pursuant to the federal Volunteer Protection Act, 42 U.S.C. § 14501.  (VPA.) The defendant filed this motion for summary judgment dated December 10, 2013 as to the First Count.   The plaintiff filed a memorandum in opposition dated December 30, 2013.   The defendant filed a reply dated January 2, 2014 and there was a surreply filed by the plaintiff dated January 9, 2014.   The court heard argument on January 6, 2014.

FACTUAL BACKGROUND

This action was initiated by the plaintiff through his parents for an injury that occurred during the course of a youth football game.   The plaintiff is fourteen years old and played recreational football for the Amity football team.   On September 5, 2013, the plaintiff took part in a game at Cheshire with the football team.   The team is operated by Cheshire Junior Football, Inc. On this date, the defendant, Jesse Eddy, was attending the game with his parents to see his younger brother play.  (Amended Complaint ¶ 5.)   While sitting in the stands with his parents, the defendant was asked by a representative of the Cheshire football team if he would agree to be part of the chain crew.   The defendant was 16 years of age at the time of this event.   The defendant agreed to assist.   He met with the officials and was instructed by the linemen.   He took a place in the field area where he held the first down marker.   In the beginning of the fourth quarter, a play caused the players to run off the field in the area where the defendant was holding the marker.   The plaintiff ran into the marker and alleges that he received significant injury as a result of the defendant's negligence.¹  The plaintiff has filed this action through his parents.   The defendant contends that summary judgment must be granted because he is immune from liability pursuant to the Federal Volunteer Protection Act.

DISCUSSION

A. GENERAL LAW

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and 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.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790–91, 936 A.2d 625 (2007).

“In ruling on a motion for summary judgment the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn, 1, 10–11, 938 A.2d 576 (2008).

“The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Id., 11.

“A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like.”   Practice Book § 17–45.  “[B]efore a document may be considered by the court in support of a motion for summary judgment, ‘there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.   The requirement of authentication applies to all types of evidence, including writings ․’ Conn.Code of Evid. § 9–1(a), commentary.   Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.”  New Haven v. Pantani, 89 Conn.App. 575, 679, 874 A.2d 849 (2005).

“[Section 17–46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding.   The material must:  (1) be based on personal knowledge;  (2) constitute facts that would be admissible at trial;  and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit.”  (Internal quotation marks omitted.)  Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995).   The court may consider not only the facts presented by the parties' affidavits and exhibits, but also the “inferences which could be reasonably and logically drawn from them ․” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).

“A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  Internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

B. FEDERAL VOLUNTEER PROTECTION ACT

The Federal Volunteer Protection Act (VPA) provides in relevant part:  “(N]o volunteer of a nonprofit organization ․ shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization or entity if ․ the volunteer was acting within the scope of the volunteer's responsibilities in the nonprofit organization ․ at the time of the act or omission ․” 42 U.S.C. § 14501.   The defendant contends that this act is applicable to the present action and provides immunity for the alleged negligence of Jesse Eddy while holding the line marker for the game sponsored by Cheshire Junior Football, Inc. The plaintiffs argue that the defendant does fit within the definition of volunteer and that the actions of the defendant exhibiting gross negligence are an exception to the immunity.

The first issue raised by the parties addresses the status of the defendant as a volunteer.   The VPA defines a volunteer as “an individual performing services for a nonprofit organization or a governmental entity who does not receive:  (A) compensation (other than reasonable reimbursement or allowance for expenses actually incurred;  or (B) any other thing of value in lieu of compensation, in excess of $500 per year, and such term includes a volunteer serving as a director, trustee, or direct service volunteer.”  42 U.S.C. § 14505(6).   The plaintiffs contend that the defendant has not satisfied his burden to demonstrate that the defendant should be immune as a volunteer.   The court will first explore this argument.   The plaintiffs in contesting the applicability of the federal statute discuss the need to demonstrate that the defendant was performing tasks “for,” “of,” or “on behalf of” the nonprofit.   Without any supporting basis except to contradict the defendant, the plaintiffs argue that the defendant cannot satisfy that he is “for,” “of” or “on behalf of” the nonprofit.   The plaintiffs without support argue that the defendant was not acting within the scope of the volunteer responsibilities in the non-profit organization.   This argument is contrary to the affidavit of the defendant and an analysis utilizing some inferences that can be drawn from the affidavit, the actions of the defendant and the actions of the nonprofit.   In particular, the defendant provided an affidavit which simply states that he was attending the football game as a spectator.   He states specifically that when he was in the stands with his parents, a representative of Cheshire Junior Football asked me to volunteer (Emphasis added) as a member of the chain crew ․” (Affidavit ¶ 5.)   No one disputes the fact that the defendant was asked to assist on the field by a member of the Cheshire Jr. Football, Inc. The plaintiffs argue that this participation is not “for,” “of,” or “on behalf of” because he agreed to help on this limited basis.   The plaintiffs argues that the cases that support this immunity involve individuals who have a more active volunteer status such as a coach.   While the cases in support of the arguments do involve individuals who are directors, or officers or coaches there is nothing in the VPA which restricts the volunteer status to a fixed actor.   In particular the definition as volunteer leaves open the determination to a “direct service volunteer” which can include an individual who works one time in the concession stand, cooking hotdogs, collecting tickets, giving direction or a multitude of volunteer tasks in many nonprofit organizations.   This argument ignores the entire purpose of the act to encourage people to help or volunteer their services “to promote the interests of social service program beneficiaries and taxpayers and to sustain the availability of programs, [and] nonprofit organizations ․ that depend on volunteer contributions ․” 42 U.S.C. § 14501(b).  This argument of the plaintiffs place a new element or restriction for immunity that requires some undefined connection to the nonprofit.   The argument ignores the many nonprofits that organize events which seek volunteers for a single event which would be incapable of sponsoring the event(s) without enormous volunteer support.   To find that there is a requirement beyond simply volunteering for the event to permit immunity would negate the act and lead to the diminishing of volunteers for fear of liability.

It is obvious based upon the affidavit of Jesse Eddy, that the defendant did precisely what is encompassed by the Act, that is, volunteer so that the young athletes would have an opportunity to play the sport.   As to the organization, he was a volunteer working for the Cheshire Junior Football, Inc. which operated and organized the games.   The affidavit of Richard Orvis clearly supports a finding that the organization was a 501(c)(3) nonprofit.  (Exhibit B, ¶ 4.)   In further support, the defendant refers to another complaint filed by the same plaintiffs against the Cheshire Junior Football, Inc. and others in which the plaintiffs allege that the “coaches, referees and persons manning the first down pole were agents of the defendants ․” (Emphasis added.)  (Hochman v. Cheshire Jr. Football, Inc. et al., NNH CV 126032929).   This pleading provides a further evidentiary admission that supports the argument that the defendant Eddy was an agent of the Cheshire Junior Football, Inc. to afford him the immunity.   The plaintiff does not offer support that demonstrates otherwise.   The plaintiff does not offer evidence that contradicts the affidavit of Jesse Eddy that he was a volunteer without compensation for the Cheshire football game.   It is clear that the defendant performed the task of chain crew on behalf of the nonprofit so that the game could take place.²  The plaintiff argues that the New Haven Officials are not part of the non-profit but this argument is not relevant in the instant action given the finding that Jesse Eddy was a volunteer for a nonprofit even if some of his contact also involved the referees at the game.   Therefore, the defendant is a volunteer as defined and recognized in the Federal Volunteer Protection Act.

The plaintiff next argues that if the defendant is considered a volunteer, his actions on this date amount to gross negligence and thus he is not immune from liability.   The act states in part:  “Liability, protection for volunteers ․ no volunteers 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 ․” 42 U.S.C. § 14503(a)(3).   The defendant argues that gross negligence is not applicable in this action because there is no recognized cause of action for gross negligence in Connecticut and the complaint is a cause of action in negligence only.   In this regard the plaintiffs contend that the statue relied upon by the defendant is a federal statute and thus the court should follow federal law on the issue of gross negligence.   Additionally, although Connecticut courts do not recognize a specific cause of action for gross negligence, the plaintiffs have the right to avail themselves of the exception to the federal statute and thus determine if the actions alleged amount to gross negligence.   This court has reviewed the allegations in the complaint to determine if it creates a question of fact as to the claim that the actions of Jesse Eddy were grossly negligent so as to preclude immunity under the federal act.   The Amended Complaint states as to the defendant's actions that:  “Phillip's injuries and damages were caused by the negligence and carelessness of the defendant Eddy in that he failed to exercise due care under the conditions then and there existing;  he failed to pay attention to the game and the movement of the players;  he failed to hold the metal down marker/rod a safe distance from the sideline;  he failed to drop the metal yard marker/rod as players, including the plaintiff, approached him running.”  (Amended complaint, ¶ 6.)

Gross negligence is defined as “very great or excessive negligence, or as the want of, or failure to exercise, even slight or scant care or slight diligence ․ [T]his court has construed gross negligence to mean no care at all or the omission of such care which even the most inattentive and thoughtless seldom fail to make their concern, evincing a reckless temperament and lack of care, practically [wilful] in its nature ․ Gross negligence means more than momentary thoughtlessness, inadvertence or error of judgment;  hence, it requires proof of something more than the lack of ordinary care.   It implies an extreme departure from the ordinary standard of care, aggravated disregard for the rights and safety of others, or negligence substantially and appreciably greater than ordinary negligence.”  (Citations omitted;  internal quotation marks omitted.)  19 Perry Street, LLC v. Unionville Water Co., 294 Conn. 611, 631 n.11 (2010).

Viewing the allegations in the complaint favorably to the plaintiff as the law provides does not support a finding that the allegations in the complaint amount to gross negligence on the part of the defendant.   The conduct described of being inattentive, and failing to have enough space or drop the marker on a play where in the heat of the action the players are running toward the marker is not enough to support a finding of complete inattentiveness, aggravated disregard for the safety of others or total lack of ordinary care.   The allegations of the conduct create a description of an event that was a split second of decision making, if that, during the course of an athletic event.   The allegations of the defendant's conduct in a light most favorable to the plaintiff as described are no more than ordinary negligence on the part of a defendant who did not react to a group of football players running towards him.   The complaint is completely lacking in factual support for a determination that gross negligence was displayed by the defendant.   Even accepting the allegations of negligence as true they are not sufficient for a determination of gross negligence.   There is no genuine issue of fact which would prevent a finding that gross negligence is not a part of the allegations in the negligence count.   Therefore, summary judgment cannot be granted on this basis.

C. CONSTITUTIONAL CHALLENGE

Lastly, the plaintiff claims that the act cannot be sustained under Article 1 § 8 clause 3 of the United States Constitution and the 14th Amendment to the Constitution.   The plaintiff contends that the VPA exceeds the power delegated in the Commerce Clause and intrudes on a matter traditionally reserved to the State's basic tort law.   The plaintiff contends that the power to provide immunity to a nonprofit within the state is not a proper exercise of power.   The plaintiff argues that the activity is not a part of interstate commerce which permits control by the federal government.   In a nutshell, the plaintiff attempts to focus on the limited facts here and ignores the intent and purpose of the legislation which created the VPA.

In H.R.Rep. No. 105–01(1) at 6 (1997) the Committee stated:  “It is not enough to leave it to the States to solve this problem.   Volunteerism is a national activity and the decline in volunteerism is a national concern.   Although every state now has a law pertaining specifically to legal liability of at least some type of volunteers, many volunteers remain fully liable for some actions.   Only about half of the states protect volunteers other than officers and directors.   Moreover, every volunteer protection statute has exceptions.   As a result, state volunteer protection statutes are patchwork and inconsistent ․ this inconsistency hinders national organizations from accurately advising their local chapter as to volunteer liability and risk management guidelines.”   The background of the legislative report as to the intention of the VPA reveals that the purpose of enacting the VPA was not only to create uniform national standards but to provide sufficient legislation to encourage continued volunteerism.   The plaintiffs give no credence to the purpose expressed in the legislative intent and infer that there is no connection to the commerce clause.   However, the plaintiff does not provide any factual basis to support their position.   The plaintiff ignores the significance of a sports program for child development not only from the social aspect but the health benefits.   It is not the specific program that elicits volunteers but the general concept of sports programs for our youth that would be nonexistent without the assistance of volunteers that may not participate if there was a fear of liability.   This is precisely the intent of the VPA and the plaintiff only speculates that such a program does not have a benefit and purpose that exceeds the constitutional challenge.   Congress recognized that the need for the immunity in small communities where there are many nonprofit organizations that depend on volunteers.   Congress emphasizes that “the contributions & these programs to their communities is thereby diminished, resulting in fewer and higher cost programs than would be obtainable if volunteers were participating.”  42 U.S.C § 1450(a).   Connecticut does already limit some liability for volunteers and charity workers.  (See C.G.S. §§ 52–557m, 52–557l and 10–235.)   However, the VPA preempts the laws of any state except for those laws that offer more immunity for a nonprofit or governmental entity than the VPA. Therefore, the VPA will preempt such statutes when it offers more immunity than the statutes such as in the present action.   Connecticut has not elected to enact non-application of the VPA which is permitted by § 14502(b) and thus the federal immunity applies in the instant action.   Therefore, the constitutional argument must fail.

D. CONCLUSION

The court finds that the defendant, Jesse Eddy, is a volunteer pursuant to the Federal Volunteer Protection Act and there are no genuine issues of fact which support the exception for a claim of gross negligence.   The plaintiff has failed to provide a sufficient basis in law or fact that supports the claim that the Federal Volunteer Protection Act is unconstitutional.

The motion for summary judgment is granted as to Count One.

THE COURT

Brazzel–Massaro, J.

FOOTNOTES

FN1. The plaintiff originally alleged in the Second Count that the defendant was reckless but the court granted a motion to strike that count..  FN1. The plaintiff originally alleged in the Second Count that the defendant was reckless but the court granted a motion to strike that count.

FN2. The plaintiff has argued that the nonprofit status cannot apply because the defendant has failed to demonstrate the status as to the officials.   The complaint is clear as well as the affidavit of the defendant that his volunteer status was for the Cheshire Jr. Football, Inc. The Amended Complaint ¶ 2 states that the plaintiff was involved in a football game “operated by Cheshire Jr. Football, Inc.” The only involvement of the officials was to talk to the defendant before the game but the plaintiff does not offer a basis to consider the officials as the nonprofit for consideration in this action..  FN2. The plaintiff has argued that the nonprofit status cannot apply because the defendant has failed to demonstrate the status as to the officials.   The complaint is clear as well as the affidavit of the defendant that his volunteer status was for the Cheshire Jr. Football, Inc. The Amended Complaint ¶ 2 states that the plaintiff was involved in a football game “operated by Cheshire Jr. Football, Inc.” The only involvement of the officials was to talk to the defendant before the game but the plaintiff does not offer a basis to consider the officials as the nonprofit for consideration in this action.

Brazzel–Massaro, Barbara, J.