Elliott v. Carter – Ineffective Aid Not the Same as Gross Negligence

Accidents that result in a serious injury or death are often the result of negligence, or even gross negligence, which is a complete disregard for the safety of others. However, poor outcomes in these cases are generally not, on their own, enough to prove negligence.sandbar

General negligence requires proof that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, and the plaintiff suffered injuries as a result.

In the case of Elliott v. Carter, a boy in Virginia tragically drowned while on a Boy Scout camping trip. His parents sued the troop leader for gross negligence. However, as the Virginia Supreme Court recently decided, the leader’s efforts to save the boy – while ineffectual and inadequate – were enough to overcome the assertion of gross negligence. One justice dissented.

According to court records, the decedent was a 13-year-old boy who was on a trip with his troop. He was being overseen by his peer leader, who was 16, and adult supervisors. The decedent had been taking lessons to learn how to swim but could not yet do so. The 16-year-old had been giving some of the younger boys lessons.

The older teen walked out to a sandbar with three of the younger teens, of whom one could swim and two others – including the decedent – could not.

After the two made it out to the sandbar, the older teen decided he and the other younger teen who could swim would swim back to shore. He instructed the two non-swimmers to walk back along the shore to get back to where they started.

Tragically, the decedent and his companion slipped and fell into deeper water. They shouted for help. The 16-year-old tried to swim back and rescue him. Although the other 13-year-old was rescued, the decedent was not.

The personal representative of the decedent’s estate sued the Boy Scouts organization, as well as the 16-year-old, for wrongful death, alleging gross negligence. The trial court granted summary judgment to the organization, citing the charitable immunity doctrine. Summary judgment was also granted in favor of the 16-year-old, since the court ruled gross negligence was not established. The court held that while the evidence was sufficient to find in favor of the plaintiff on a simple negligence claim, the plaintiff needed to prove gross negligence in this case, based on a valid waiver of liability signed for the decedent’s participation in the scout organization.

In Virginia, the court held, gross negligence is not established when there is evidence that even the slightest bit of care exists, no matter how ineffective.

Upon review, the state supreme court noted that case law in that state had determined gross negligence to be a degree of negligence that shows indifference to another person or an utter disregard of prudence that amounts to the complete neglect of the safety of the other person.

The state supreme court affirmed the trial court’s findings after noting that the undisputed facts – that the 16-year-old attempted to save his younger peer – showed he did exercise some degree of care in supervising him. As a result, the court held, he did not commit gross negligence.

The dissenting justice staunchly disagreed. He noted the decedent could not swim, a fact that was known to the defendants. He didn’t walk out on his own into the river. He was led there without a life jacket or other safety equipment over a sandbar that was partially submerged far into the river. This was a major river with a strong current. The decedent was then abandoned in the middle of the river and told to walk back under very dangerous conditions for someone who could not swim and was without a life vest. Sandbars are constantly shifting. They aren’t stable. They can easily break away, particularly in a river with a strong current. Then, the older teen swam too far away to make an effective rescue should the younger teens fall into the water, which they did. The fact that the older teen tried to rescue the two younger boys after they had fallen into the water didn’t take away the fact that he’d led them to danger in the first place, the justice held.

Although this decision has no bearing directly on North Carolina courts, state supreme courts often look at their counterparts when faced with similar conflicts.

Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.

Additional Resources:

Elliott v. Carter, Oct. 27, 2016, Virginia Supreme Court

More Blog Entries:

Haunted House Injury Lawsuit Settled for $125K, Oct. 26, 2016, Asheville Wrongful Death Lawyer Blog

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