McGarr v. Baltimore Area Council, Boy Scouts of America, Inc.

WILNER, Judge. While on a camping excursion as a member of Boy Scout Troop No. 366, 11-year-old Chad McGarr was injured when he fell over a precipice into a partially frozen stream. In an action filed in the Circuit Court for Anne Arundel County, Chad and his mother contended that the accident occurred because of the negligence of troop scoutmaster Charles Fowler and the Baltimore Area Council, Boy Scouts of America, Inc. ¹³¹ The thrust of the McGarrs’ complaint against Fowler was that the area where Chad fell was dangerous and that Fowler neglected to familiarize himself with the area, to warn Chad of the danger, and to give proper supervision to Chad. Liability against the Baltimore Area Council (BAC) was asserted on two bases: as owner of the land where the accident occurred and as a principal vicariously responsible for Fowler’s negligence.

At the request of the defendants, trial was bifurcated, the issue of liability being heard first by the jury. The court terminated that proceeding at the end of the plaintiffs’ case, however, finding as a matter of law that (1) neither defendant was negligent and (2) Chad had assumed the risk of his injury and was contributorily negligent. This appeal ensued. We find no fault with the court’s conclusion as to BAC’s vicarious liability.

We think it erred, however, in its findings as to BAC’s liability as the landowner, Fowler’s innocence, and Chad’s culpability; we shall therefore vacate the judgments and remand for a new trial. Standard of Review In reviewing the granting of a motion for judgment that serves to withdraw a case from the jury, we must assume the truth of all credible evidence and all inferences of fact reasonably deducible from it tending to sustain the contentions of the party against whom the motion is granted. As pointed out in Impala Platinum v. Impala Sales, 283 Md. 296, 328 , 389 A.2d 887 (1978), “If there is any legally relevant and competent evidence, however slight, from which a rational mind could infer a fact in issue, then a trial court would be invading the province of the jury by declaring a directed verdict. In such circumstances, the case should be submitted to the jury and a motion for a directed verdict denied.” This is particularly the case in an action based on negligence, for, as has often been stated: “[Mjaryland has gone almost as far as any jurisdiction that we know of in holding that meager evidence of ¹³² negligence is sufficient to carry the case to the jury.

The rule has been stated as requiring submission if there be any evidence, however slight, legally sufficient as tending to prove negligence, and the weight and value of such evidence will be left to the jury.” Fowler v. Smith, 240 Md. 240, 246 , 213 A.2d 549 (1965); Moodie v. Santoni, 292 Md. 582, 587-89 , 441 A.2d 323 (1982); Dalmo Sales of Wheaton v. Steinberg, 43 Md.App. 659, 684 , 407 A.2d 339 , cert. denied 286 Md. 745 (1979). It is against these principles that we must review the evidence presented to the Circuit Court. Background ■The accident occurred on March 1, 1980, at the Lill-Aaron Straus Campground, a 900-acre campground near Hancock, Maryland, owned by BAC. Troop 366, led by Mr. 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 Hill Creek to the north and east. It is a wilderness area, heavily wooded and hilly. From a contour map admitted into evidence, the lodge appears to be at an elevation of between 600 and 700 feet; the Potomac River, about 1,000 feet away, is at 420 feet; Sideling Hill Creek, which flows into the Potomac, would appear to be at about the same elevation, thus indicating a slope of about 180 feet between the lodge and the creek. The nature of the terrain, and in particular the slope from the lodge to Sideling Hill Creek, is further documented by a number of photographs in evidence.

Chad’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.” ¹³³ Mr. Fowler, though an experienced scout leader, had never been to Tabler Lodge and was unfamiliar with the area surrounding it. He, along with two other experienced adult campers, accompanied the 10-12 scouts to the campground, where he received a sketch map of the area. The sketch map shows no elevations and contains no warnings of dangerous areas.

According to Mr. Fowler, at no time was he apprised of the specific nature of the terrain between the lodge and Sideling Hill Creek. The group parked their cars at a ranger station and hiked up a dirt road through hilly terrain to the lodge. Once there, the scouts unpacked, gathered some firewood, and had lunch. After lunch, the scouts, léd by some senior scouts, went hiking on a path parallel to the Potomac River.

Mr. Fowler, apparently, remained at the lodge. Chad knew only two of the other scouts—10-year old Chris Maxie and David Hummer. At some point on the hike, Chris became frightened because of the steepness of the grade and decided to return to the lodge. Chad agreed to accompany him.

After informing the scout leaders, Chad and Chris turned around and walked back toward the lodge. According to Chad, as they got to the lodge, they saw Mr. 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 Chad, he and Chris 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, “Chris said he thought he heard some water and we were curious so we went—we went down to see where it was.” 1 The area, said Chad, was heavily wooded and covered with leaves and branches.

Snow had begun to fall, making ¹³⁴ the ground slippery. From Chad’s and Chris’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. Chad 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.

Chad was just ahead of Chris 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. 2 Chris, however, said that he saw what “looked like there,was a drop off and I couldn’t see anything after that.” He yelled to Chad not to go any farther. Chad said he heard Chris say something but could not hear what it was.

Just then, the tree he was holding onto broke, and he fell over the cliff. Contributory Negligence/Assumption Of Risk Normally, we would consider the defenses of contributory negligence and assumption of risk only after assuring ourselves that a case of primary negligence on the part of one or both defendants had been established. But as the standard of care applicable to primary negligence, particularly as to BAC, itself requires an examination of the reasonableness of Chad’s conduct, we shall commence with that examination. In concluding that Chad had assumed the risk of his injury and was contributorily negligent, the court laid great stress on the testimony of Chris Maxie, which, it said, “appears to be the more believable at that point and the more in keeping with the other facts in the case that has been presented to the court in the Plaintiff's case.” We ¹³⁵ note at the outset that that kind of credibility determination was, of course, wholly inappropriate in considering motions for judgment at the close of the plaintiffs’ case.

The error was significant in at least two respects. In contrast to Chad’s testimony, Chris said that he and Chad had not seen Mr. Fowler and were not out gathering firewood but were simply on a hike. Moreover, at some point after sliding down the hill, Chris was able to stop, apparently recognized the danger, and warned Chad not to go any farther. As we observed, however, at that stage of the case, the court was obliged to apply Chad’s version of what occurred, not Chris’s.

In either case, it 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. Chad and Chris—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 Chad nor Chris saw sufficient danger to deter them from starting down the hill, even from sliding down on their rear ends. That Chris—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 Chad was necessarily “guilty” of contributory negligence or assumption of risk, at least not as a matter of law. As we indicated, Chad said that he could not see the precipice and that he did not venture further after a warning from Chris but simply fell off when the tree he was holding broke.

Chris was able to climb back up the hill to summon help; had the tree Chad was holding not broken, there is nothing to suggest that he could not have done the same. In this regard, Prosser and Keaton, The Law of Torts (5th ed. 1984), at 179, observe: “[T]he 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 ¹³⁶ 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.” (Footnotes omitted.) In accord: Restatement (Second) of Torts, § 283A and comment b thereto; see also Taylor v. Armiger, 277 Md. 638 , 358 A.2d 883 (1976), and cases cited therein.

Note in particular the observation at 646, 358 A.2d 883 : “The lowest age at which we appear to have held a child contributorily negligent as a matter of law is 11 years in Kane v. Williams, 229 Md. 59 , 181 A.2d 651 (1962), where he was found to have ignored a stop sign applicable to him on a bicycle.” Compare Casper v. Chas. F. Smith & Son, 71 Md.App. 445 , 526 A.2d 87 (1987) (where we found that a seven and an eight-year old assumed the risk of their actions as a matter of law). Taking the evidence in a light most favorable to Chad, we believe that, at worst, 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 Chad’s conduct, under the circumstances, was negligent. Liability of BAC as Landowner In Sherman v. Suburban Trust Co., 282 Md. 238, 241-42 , 384 A.2d 76 (1978), the Court summarized the law governing a landowner’s obligation to persons on his property thusly: “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 ¹³⁷ in general a person