Moore v. Boy Scouts of America Los Angeles Area Council, Inc., 2004 Cal. App. Unpub. LEXIS 11180

Moore v. Boy Scouts of America Los Angeles Area Council, Inc., 2004 Cal. App. Unpub. LEXIS 11180

Josephine Moore, Plaintiff and Appellant, v. Boy Scouts of America Los Angeles Area Council, Inc., Defendant and Respondent.

B170389

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE

2004 Cal. App. Unpub. LEXIS 11180

December 10, 2004, Filed

NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBIT COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 977.

PRIOR HISTORY: APPEAL from a judgment of the Superior Court of Los Angeles County, No. NC040331. Elizabeth Allen White, Judge.

DISPOSITION: Affirmed.

CORE TERMS: scout, tent, rope, volunteer, flag, summary judgment, scout camp, causes of action, hazard, marker, adult, guy ropes, feet, dangerous condition, declaration, triable, conspicuity, warning, premises liability, issues of fact, negligently, military, donated, wall tent, lighting, tripped, visible, manual, pole, trip

COUNSEL: Sedgwick, Detert, Moran & Arnold, Thomas A. Delaney and Steven S. Streger, for Defendant and Respondent.

Desjardins Kelly and Warren D. Kelly, for Plaintiff and Appellant.

JUDGES: ALDRICH, J.; CROSKEY, Acting P. J., KITCHING, J. concurred.

OPINION BY: ALDRICH

OPINION

INTRODUCTION

Plaintiff and appellant Josephine Moore (Moore) was setting up a tent for a scout camp site when she tripped over a rope that was securing the tent. Moore appeals from a summary judgment entered in favor of defendant and respondent Boy Scouts of America Los Angeles Area Council. Inc. (the Boy Scouts). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Following the usual rules on appeal, we construe the facts in the light most favorable [*2] to Moore, the party who opposed the motion for summary judgment. (Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1836.)

On July 8, 2001, Moore was setting up a scout camp site. She and other adult volunteers were erecting a wall tent that was secured by poles and ropes. No employee of the Boy Scouts was involved in setting up the tent. The Boy Scouts did not own the tent. The rectangular tent was oblong, about 24 feet long by 16 feet wide. The poles used to hold up the tent were 6 feet long. Beige ropes were used to secure the tent to the ground and to keep the tent upright.

At about 7:00 p.m., the volunteers had been setting up the tent for 30 to 60 minutes. The tent was about four or five feet from a picnic table. One of the other adults asked Moore to retrieve additional stakes from the opposite side of the tent. Moore walked around the tent and picked-up six or seven stakes. Moore walked near the tent, toward the adult who had requested the stakes. In doing so, Moore tripped over one of the ropes that had already been staked into the ground. The stake holding the rope was two to five feet from the tent and two to five feet from the picnic table.

[*3] Moore had not set up the specific pole, rope or stake upon which she tripped.

The ropes coming off the tent were at varying angles and pitches. The ropes varied in length, depending upon location. There were no flags or markers on the ropes.

Before this date, Moore had never been involved in setting up or taking down this tent or this type of tent. However, in years past, Moore had used rope or flags to mark the guy ropes on this tent to make the ropes more visible.

During the time the tent was being set up, Moore was aware that some guy ropes were already in place, extending out from corners of the tent.

Before Moore fell, neither Moore nor any of the other adult volunteers saw anything they considered unsafe or dangerous.

In the past, some of the adult volunteers had used markers (e.g., cloth or fluorescent plastic tape) to make ropes more visible in scout camps and in non-scout camping situations. In prior years, this tent had been used in the Boy Scout camp, and flags had been used to mark the ropes. It is unclear if markers were used each time the tent was used.

The Boy Scout’s manual did not address rope safety and did not instruct that markers were to be used, although [*4] some believed marking the ropes made good sense. The photograph of a wall tent in the manual appeared to have markers on the ropes.

At one Boy Scout volunteer training session held a few years prior to this accident, volunteers were told to flag tent ropes so no one would trip. The Boy Scouts had no documents relating to the use of warnings on ropes.

The scout camp is planned by volunteers. The Boy Scout district executive, Jim McCarthy, attends the planning meetings.

2. Procedure.

Moore sued the Boy Scouts. The complaint stated two causes of action.

In the first cause of action for premises liability, Moore alleged that the Boy Scouts “negligently maintained, managed, controlled, and operated the Scout Camp, in that the guy ropes attached to a certain tent in the Scout Camp were unmarked with flags, or with anything, and were obscured from view without some kind of flag, marker, or other warning, owing to their color, size and geometry, location, time of day, and other factors, which [the Boy Scouts] knew, or in the exercise of reasonable care should have known, constituted a dangerous condition and unreasonable risk of harm of which [Moore] was at all times . . . [*5] unaware. [The Boy Scouts] negligently failed to take steps to either make the condition safe or warn [Moore] of the dangerous condition, all of which caused [Moore] to trip and fall on one of the guy ropes, and to suffer the injuries and damages hereinafter described.”

In the second cause of action for negligence, Moore alleged that the Boy Scouts failed to “use reasonable care in the construction, maintenance, management, and control of the Scout Camp, including but not limited to placing flags or some other kind of marker or warning to identify and call attention to the presence and location of the guy ropes surrounding the tent tarp. [P] . . . [The Boy Scouts] knew or should have known that the construction of the Scout Camp was likely to create during the construction a risk of harm to those who were working on and around the Scout Camp unless special precautions were taken, in that, among other things, guy ropes, which were obscured from view . . . would be emanating from the tent, unmarked and unguarded, in a fashion that constituted a hazard to persons, including [Moore].”

The Boys Scouts brought a motion for summary judgment.

In opposing the motion, Moore submitted [*6] the declaration of psychologist Ilene B. Zackowitz, Ph.D. Dr. Zackowitz declared the following. She was a human factors and safety consultant and a certified professional ergonomist. ¹ She had reviewed the discovery in this case. “When wall tents that are secured with ropes and stakes are used, it is foreseeable that the low conspicuity of the ropes may present a tripping hazard. Despite this foreseeable hazard, [the Boy Scouts have] no stated policy or procedure that addresses the hazard, namely using flags to increase the conspicuity of guy ropes, in the [Scout] Camping merit badge book or the Scouts ‘Guide to Safe Scouting.’ ” “Other Scout Councils recognize the hazard and have policies in place to address the hazard[, such as a troop in Georgetown, Virginia, the Scout Association of Australia, and the Southeast Louisiana Council].” “A stated policy of securing conspicuous flags to the ropes as they are secured to the ground (as opposed to waiting until the entire tent is erected) would greatly increase the conspicuity of the anchoring ropes.” “The incident occurred at dusk such that lighting conditions and contrast were reduced. Under ideal lighting conditions, a rope and [*7] stake would have low contrast with the dirt covered ground surface. . . . There were no visual cues that the hazard was present. . . . A flag on the rope would have provided contrast and would have called attention to the hazard.”

1 Dr. Zackowitz’s curriculum vitae includes information that she serves as a forensic consultant for personal injury accidents, including slips, trips, missteps, and falls, the effectiveness of warnings, visibility, conspicuity, and lighting.

The trial court granted the summary judgment motion. In the order granting summary judgment, the trial court found there were no triable issues of fact because: (1) there was no evidence of a dangerous condition and Dr. Zackowitz’s declaration was not admissible on the issue; (2) the Boy Scouts had no notice of the condition as the only ones present were volunteers, who were not agents of the Boy Scouts; and (3) the condition was open and notorious.

Judgment was entered against Moore, from which she appealed.

DISCUSSION

1. Standard [*8] of review upon a motion for summary judgment.

Following the granting of a summary judgment, we review the moving papers independently to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. (Jackson v. Ryder Truck Rental, Inc., supra, 16 Cal.App.4th at p. 1837.)

A defendant who brings a motion for summary judgment asserting that the plaintiff cannot state a cause of action need only address the theories advanced in the complaint, as the complaint frames the issues. (United States Golf Assn. v. Arroyo Software Corp. (1999) 69 Cal.App.4th 607, 623; Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 886-887; FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381, 282 Cal. Rptr. 508.) “A party cannot successfully resist summary judgment on a theory not pleaded. [Citation.]” (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.)

2. Moore has not demonstrated a triable issue of fact with regard to the two theories presented.

Moore stated two causes of action – premises [*9] liability and negligence. She contends there are triable issues of fact with regard to these causes of action. This contention is unpersuasive.

A cause of action for premises liability generally is based upon a dangerous condition on land. (Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406, fn. 1.) The possessor of land is liable only for hazardous conditions of which the possessor had actual or constructive knowledge. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1203.) Here, the tent was set up by volunteers, who were not the agents of the Boy Scouts. (Young v. Boy Scouts of America (1935) 9 Cal. App. 2d 760, 765 [adult volunteers are not agents of local councils].) There is no evidence the Boy Scouts knew the tent was being set up. Thus, the Boy Scouts neither created the “dangerous” condition nor were aware that it existed.

With regard to the negligence cause of action, Moore alleged that the Boy Scouts negligently constructed, maintained, managed, and controlled the camp. However, the undisputed facts were that the volunteers undertook all of these activities. Thus, Moore failed to establish that the [*10] Boy Scouts breached its duty to her. (Cf. Ortega v. Kmart Corp., supra, 26 Cal.4th at p. 1205 [negligence requires duty, breach, causation, damages].)

Moore argues that notice of the condition is irrelevant as liability “is not based on acts of the volunteers who erected the tent, but on the policy (or lack thereof) of the [Boy Scouts] relating to tent safety, as well as the fact that [the Boy Scouts] provided a tent with inconspicuous ropes and no flags.” These arguments are based primarily upon (1) statements made by some of the volunteers who said that the past they had marked the ropes to make them more visible, (2) comments by Moore’s expert (Dr. Zackowitz), and (3) Dr. Zackowitz’s reference to other scout manuals.

However, Moore’s complaint, which framed the issues, did not alleged that the Boy Scouts lacked a policy with regard to rope safety, nor did it allege that the Boy Scouts were negligent in supplying a defective tent. (Cf. FNS Mortgage Service Corp. v. Pacific General Group, Inc. (1994) 24 Cal.App.4th 1564, 1572 [discussing negligent undertaking].)

Further, there is an evidentiary problem with Moore’s argument [*11] relating to the Boy Scouts supplying the tent. In Moore’s appellate brief, she does not provide a citation to the record to support the statement that the tent had been supplied by the Boy Scouts or that it had been donated to the Boy Scouts by the military. (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1378-1379 [parties have obligation to provide proper citations to record].) ² In Moore’s separate statement of disputed and undisputed material facts, Moore also fails to establish that the tent had been supplied by the Boy Scouts, or that it had been donated to the Boy Scouts by the military. Additionally, Moore testified in her deposition that she did not believe that the Boy Scouts owned the tent. Dr. Zackowitz did state in her declaration that the tent had been donated to the Boy Scouts by the military. However, Dr. Zackowitz does not identify the source of this information and therefore this testimony lacks foundation.

2 In the introduction to her brief, Moore points to the Clerk’s Transcript, pages 226 to 264 for this factual assertion. This is an insufficient citation. (Grant-Burton v. Covenant Care, Inc., supra, 99 Cal.App.4th at p. 1379 [appropriate reference to records must include exact page citations].)

[*12] Summary judgment was properly granted in favor of the Boy Scouts. ³

3 In light of our conclusion, we need not address whether the trial court made evidentiary errors with regard to Dr. Zackowitz’s declaration.

DISPOSITION

The judgment is affirmed. Moore is to pay all costs on appeal.

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

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