The Liability Thing in Reality

[The Blancmange]

There has been a lot of discussion lately about scouters, volunteers, and chartered organizations potentially becoming personally liable for an injury in a scouting setting, or having BSA decline coverage for a claim. Personally, I've never heard of it actually happening. So, I'm curious, is anyone aware of such a situation? Just to be clear, I'm not talking about criminal and/or intentional tort situations like abuse or molestation. Just personal injuries involving ordinary negligence, or even something that is arguably gross negligence or the equivalent. Is anyone aware of a situation where:

 

1. BSA declined to provided liability coverage to a scouter, volunteer or CO under its contractual obligation;

 

2. A judgment was rendered against a scouter or CO which the BSA or its insurers refused to indemnify (or which exceeded BSA's multiple layers of coverage);

 

3. A scouter or CO had to contribute his/her/its personal funds toward a settlement;or

 

4. A scouter or CO had to spend his/her/its own money on defense costs (including attorney fees) because BSA refused to do so.

[NJCubScouter]

I have never heard of such a thing, but on the other hand there has not been a serious injury in the troop or pack during my involvement, so there have been no claims. (I guess I should say "knock on wood" there.) I have a vague recollection that when I was a Scout, a young Scout broke his leg on a camping trip, but seeing as how the boy was the Scoutmaster's son and the injury occurred in full view of both the Scoutmaster and other leaders (including my father) and Scouts (including me), meaning that it would have been clear to everybody that if there was any "failure to supervise", it was by the boy's own father, there was no lawsuit.

[nldscout]

There has never been a leader held finacially responsible according to BSA's lawyers.

 

They cover leaders so they can get people to volunteer.

[Beavah]

What nld said, eh? The BSA has an excellent reputation of standing by its volunteers.

 

That's why the paranoia on da forums about insurance and liability is just so hard to fathom. Relax.

 

As volunteers, you are about as well insulated and well protected as can be in modern America. Worry about drivin' your kids' soccer carpool or having your son's friends over for a birthday party if yeh must, but when it comes to scouting, relax.

 

Do your best, try to do the right thing. Take care of your kids.

 

Yah, we live in a disputatious society, and yeh might see a bit of that now and then, from the family that argues with yeh over MB requirements on up. And in civil society, we allow the disputatious their day in court if they so desire. There's nuthin' to fear in that. Courts aren't perfect, juries aren't perfect, but they're often pretty darn good. Yah, they make mistakes every now and then, just as scouters make mistakes every now and then. For that, we have insurance.

 

The Florida thing is tragic, and we should all look at it to see what may be learned. The two scouters involved continue to work with their troop, and aside from some mild annoyance being available for depositions and a grandstanding plaintiff's attorney who's been callin' all the media, their life goes on. When the case eventually settles, they'll continue in their lives and their scouting service. Wiser, perhaps, for having lived through a tragedy we would wish on no scouter.

 

Tragedies happen. Disputes are normal. Adjudication sometimes is necessary. Insurance sometimes is necessary too.

 

Relax. Your scouting service should not be weighed down by these concerns. The BSA works very hard to make sure that you can give your time and your love to kids without that worry.

 

Beavah

 

 

 

[dScouter15]

Beavah -

 

I think you're right, that the BSA generally does support its volunteers very well in a number of legal situations. However, I have to believe that the BSA's and individual leaders' liability is managed by the extensive training offered through the BSA and other organizations. I'd also like to think that discussions such as the ones on this forum and elsewhere, in which volunteers are directed away from plans or ideas that may be harmful, also play a role in reducing personal liability.

 

However, there are a couple of points I want to make.

 

Firstly, and to be quite blunt, I can't believe that you were able to use those terms to describe the situation in Florida with a straight face. I'm not sure how you consider it to be a "mild annoyance" to be dragged through the legal system for months to years over the death of a youth under your supervision. Regardless of the end result of that mess - whether or not the leaders are found to be liable at all, being dragged through a legal mess like that is no small matter. True, eventually the dust will settle, and they will "move on," but the process between now and then is much more than a minor inconvenience.

 

Second, sometimes "liability" and "legal liability" are not the same thing. In other words, a bad idea can have consequences other than legal action, fines and jail time. This is where I get frustrated while reading threads about a potentially bad idea. Eventually, someone will mention something about legal liability, and someone else will post something saying "nah, you probably won't go to jail for that," and then the discussion stops being about whether the actual idea is good or bad, and turns into a discussion on the chances of being sued, or being held liable. Well, here's the thing: even if you decide that its unlikely that you'll do any jail time, all of those possible consequences that got you thinking about liability in the first place: injury, death, property damage, hurt feelings, etc - all of those are still legitimate concerns that need to be addressed independently of perceived legal liability! Maybe a good rule of thumb is that if you're spending a lot of time researching and discussing the possible legal ramifications of a given event, maybe it would just be a good idea to plan on doing something else instead.

 

I don't know enough about the Florida situation to speculate as to whether it was handled appropriately, but pretend for a minute that the tragic death of a Scout could have been prevented with additional training, or better planning or preparation. Even if the individual leaders aren't found to be liable in a court of law, or penalized through the legal system, there's still the issue of having a Scout die in a situation that could have been prevented. In my humble opinion, it may be better use of all of our time if we "armchair lawyers" stepped away from the legal issues and instead focused on topics that we have more direct knowledge of - like planning events that are safe just for the sake of them being safe. Then, hopefully, we'd have less need to involve actual lawyers in our Scouting lives.

[Beavah]

Yah, dScouter, just different perspectives, eh? Or perhaps not.

 

I don't consider participating in a dispute resolution process to be anything more than an annoyance, eh? Of course I have more experience with such things than some others. I agree, though, that havin' to deal with the aftermath of losing a lad is far far harder. That's why in da Florida thread I said I thought it was a shame that the scouters and kids involved didn't immediately avail themselves of the offers of support and help from the professionals on the scene.

 

I think you're exactly right. Every time someone brings up legal issues it distracts and detracts from the real issues that we as scouters should be talkin' about, eh? Issues of judgment, and training, and preparation. How we balance safety. Whether there are better approaches to an activity. The question is not whether insurance covers, it's whether a kid might be hurt.

 

That's why I dislike trainers who start making up legal nonsense to "win" an argument or try to impress people. They're not being honest, and they're not doin' Scouting any favors. Unlike you, I think it happens most often when the person can't offer any real safety justification for their position, so they retreat to legal mumbo-jumbo. Either way, though, legal stuff is all just after-the-fact dispute resolution, eh? It's not to be feared, and by itself it's just an inconvenience. The real issues are program for the kids.

 

I'd love to see us stick to that, too. Did yeh see the stuff clemlaw dug up in da other thread? I think that makes for a better program discussion about the Florida accident than da legal stuff.

 

Beavah

[dScouter15]

Beav - Maybe we are making the same conclusion, but used a different thought process to get there. But, in this case, I think the process may be just as important.

 

I still have to take some exception to your "Eh, don't worry about it" stance. Your right that at its most basic level, legal action boils down to dispute resolution. But, its not so easy to brush off a dispute where you are being accused of having some responsibility for the death of someone else's kid. Regardless of what the BSA covers you for, and regardless of the outcome of the case, I think a situation like that would put a lot of stress on the accused's family life, friendships, work life, etc. It doesn't really seem fair to characterize this type of dispute just as an annoyance.

 

I understand you have some background and experience in the legal world that exceeds most of ours. But, as an analogy, I have a lot of experience working as a paramedic. And, to me, working on a patient who dies during or shortly after I care for them is really not a big deal for me. Having to do CPR for a few minutes, for me, is just a mild annoyance, because its something I do regularly, and I've adjusted my thought processes so that I don't feel any emotional attachment to these patients. However, if I was speaking with or advising a lay person who had recently had someone die despite trying CPR, I wouldn't tell them its no big deal, or brush it off as a mild inconvenience. Sure, eventually they will move on and get past any problems they're having with the situation, but that doesn't mean its appropriate to write off their fears and concerns in the middle of the situation.

 

And maybe another side of the issue is that, as flawed as our legal system is, there are valid reasons to be concerned about litigation. Especially these days, when we seem to hear almost weekly of some new ridiculous law suit that resulted in someone winning an amount of money disproportional to the alleged offence. While its important to be realistic about how much you personally could be held liable, and how much support the BSA and other groups will provide, it is still important not to completely write off the possibilities of legal action. Because, if you do something that is illegal, negligent or just plain stupid, it would only be fair that you be held accountable legally.

[Beavah]

Especially these days, when we seem to hear almost weekly of some new ridiculous law suit that resulted in someone winning an amount of money disproportional to the alleged offence.

 

This to me is the key, eh? It's the essence of all of Americans' irrational fears, from fear of lawsuits to fear of drive-by child kidnappings to fear of airline travel. Our pervasive national media makes its living on finding the isolated oddball cases where da system didn't work and a bad thing happened, and blasting it into our living rooms over and over and over again. If yeh can't find an airplane crash or murder or child abduction in da U.S., then surely yeh can find one in... Bolivia! And when all else fails, just report the absurd suit when it's filed. Then omit any coverage when the absurd suit is thrown out the following month.

 

It's really not all that bad out here in da real world, no matter what yeh see on television. Schools are safer from gun violence than they have ever been. Kids are as safe or safer from stranger kidnapping and molestation than they have ever been. Flying in an airplane is safer than driving your car. Scouting is remarkably safe. And the legal system, for all its flaws, generally works just fine.

 

Yah, sure, in some of that I may have more experience. That's why I don't believe the TV. I don't think that invalidates my claim, though I get that da scariest thing is the unknown. But in the end, fear is a choice. It can even be an addiction. If yeh choose to be fearful, yeh can always find ways of justifying your fearfulness. Just watch da news.

 

Losing a boy is goin' to be traumatic no matter what. I don't know any scouter put in such a circumstance who wouldn't spend years worrying about whether he or she had done all they could, even if they had. It's the worst possible nightmare for any of us, and that should keep us mindful of our need to do our best, stay fit and seek training and all the rest. Compared to that the legal squabbles that come months or years later are really just annoyances. I've never known a scouter who wouldn't be harder on him/herself than a courtroom would ever be.

 

Beavah

 

[Basementdweller]

Like it or not

 

You will be named on any law suit of that nature.......

 

Losing a scout under my supervision would probably be devastating. and then to be named in a lawsuit on top of it, it would just be the icing on the cake.

 

 

So Beavah, not to argue with you.

 

Say something happens and I am named in a lawsuit involving scouting. Does the BSA provide me an attorney or is it on my dime?????

 

 

[The Blancmange]

 

Say something happens and I am named in a lawsuit involving scouting. Does the BSA provide me an attorney or is it on my dime?????

They have a duty to "indemnify and defend" you. This means that, in addition to paying any settlement or verdict, they must pay the costs of defense, including attorney fees.

[The Blancmange]

 

That's why the paranoia on da forums about insurance and liability is just so hard to fathom. Relax.

I wonder why this is? The reason I posted this question was to make this point.  It seemed to me that if there were instances of scouters being left high & dry by the BSA, someone would have heard of it. The likelihood of someone being injured at a scouting function is fairly low; the likelihood of you being sued for it is even lower; and the chances of it costing you something out of your pocket are virtually nil.

Compare that to something most of us (well, except for maybe the older ones ;-) ) do alost every day: drive a motor vehicle. There is a fair chance that, at some point, many of us will be involved in a collision where someone is injured. Should that happen there is a fair chance someone will claim the collision was your fault to some degree, and a smaller, yet significant chance that you would be sued.

Do you alter your driving habits or drive less because of this? I certainly don't. I obey the speed limit (mostly), regularly check my tires and brakes, and make sure I am awake enough to drive not to avoid a lawsuit, but for my safety and that of my family. Basically because it is the right thing to do. I purchase liability insurance not just because the law requires it, but because if I mess up an injure someone, I want them to be made whole.

Why should my decisions as a scouter be guided any differently?