• Key point: A national scouting organization may be legally responsible for injuries sustained by minors at local scouting events on the basis of agency.
• In a case that will be relevant to any denomination that operates scouting or other organized youth activities, an Ohio court ruled that a national scouting organization was responsible for injuries suffered by a minor while engaged in a local scouting activity. While attending a campout sponsored by his local Boy Scout troop, a 10-year-old minor (the victim) was injured when he was struck in the face by a tree that he and another scout were attempting to cut down. Despite four eye operations the victim lost all vision in his right eye as a result of his injuries. The victim and his parents sued the national Boy Scouts of America (BSA), alleging a negligent failure to properly instruct and supervise him during the campout. BSA asked the court to issue a “summary judgment” in its favor. It relied in part on an affidavit from one of its regional officials who claimed that (1) the BSA charters local councils as individual units to make the scouting program available on a wide basis; (2) local councils make the scouting program available to sponsoring organizations that actually implement the program within local communities; (3) BSA exercises no control or supervision over the sponsoring organization or its selection of volunteer leaders.
In response, the victim’s parents produced portions of the deposition of the regional scouting official in which he stated that while compliance with BSA policies by local councils is discretionary, BSA could revoke the charter of local councils for noncompliance with those policies. For example, BSA could revoke the charter of a local council that admitted girls, or that used a leader who was a homosexual, a convicted felon, or an atheists. The official also pointed out in his deposition that a majority of BSA funds come from registration fees collected at the local level. The parents also submitted portions of the deposition of one of the local volunteer scout leaders who was in charge of the campout at which the victim was injured. The scout leader stated in his deposition that: (1) BSA dictates the policies and procedures as well as the rules and regulations governing every level of the Boy Scouts of America; (2) local scout troops do not have separate rules apart from the national BSA; (3) BSA provides, for a fee, the handbooks, manuals, equipment, and uniforms used by the scouts and volunteer leaders. The victim’s mother submitted her own affidavit to the court in which she stated that she believed an “agency relationship” existed between the local council and volunteer leaders because of the boy scout uniforms, patches, booklets, and accessories provided to the scouts and leaders as well as the local leader’s representation that BSA required constant adult supervision for all children who attend camping trips. The mother claimed that she relied on this relationship when deciding to send her son on the campout.
The trial court after considering this evidence granted the BSA’s motion for summary judgment, meaning that it ruled in favor of BSA without submitting the case to a jury because reasonable minds could come to only one conclusion—that BSA was not responsible for the victim’s injuries. The parents appealed, and a state appeals court reversed the trial court’s summary judgement and ordered the case to proceed to trial. The court ruled that the parents had presented enough evidence to avoid a summary judgment:
[T]here is some evidence that BSA retained a degree of direction and control over [the local council and scout leader]. BSA’s policies, procedures, rules, and regulations governed [the local council] and its leaders. BSA provided [the local leader] with scouting booklets and manuals that included instructions on supervision and training. BSA’s liability insurance covered [the local leader] as an adult volunteer leader, and [he] was required to wear a particular BSA uniform at scouting functions. BSA also retained the authority to discharge [the local leader] if it was determined that [he] was an atheist, a convicted felon, a homosexual, or if he registered females into [the local organization]… . [W]e cannot say, as a matter of law, whether or not the control exhibited by BSA was sufficient to create a principal-agency relationship.
The court also concluded that the parents had presented sufficient evidence on their theory of “apparent agency” to have their day in court. Under the principle of apparent agency a person or organization can become the “agent” of another though no actual agency relationship exists, if the person or organization engages in conduct that leads others to assume that the “apparent agent” is in fact an agent. The court observed:
Here, [the parents] assert that BSA made representations and committed affirmative acts which led [them] to believe that [the local scout leaders] were BSA’s agents. [The parents] support this with [a local leader’s] testimony that … BSA required its volunteer leaders to purchase and wear identical uniforms, purchase official BSA accessories and supplies, and follow BSA’s particular policies, procedures, rules, and regulations. [The mother’s affidavit] demonstrates the requisite reliance … on the relationship between BSA and [the local leaders].
What is the significance of this case to religious organizations?
Unfortunately, the court in this case reached the wrong result, and its decision will be used to support litigation against regional and national religious scouting and youth organizations as a result of injuries to minors during local activities. While it is true that there was some level of connection between BSA and local councils and scout leaders, this connection did not even approach the amount of control required to establish an agency relationship. In fact, the level of control required for an agency relationship is, in the words of the Restatement (Second) of Agency (arespected legal treatise), the “continuous subjection to the will of the [principal].” Certainly, BSA did not exercise this level of control, and the trial court was correct in dismissing the case. More enlightened courts have recognized that the relationship between BSA and its local councils and scout leaders is not an agency relationship. Some of these decisions are reviewed in chapter 12 of Richard Hammar’s text, pastor, Church & Law (second edition), as well as in prior issues of this newsletter. Similarly, the court reached the wrong result with regard to the theory of “apparent agency.” This theory of liability is discussed fully in chapter 12 of Richard Hammar’s text, Pastor, Church & Law (second edition). Mayfield v. Boy Scouts of America, 643 N.E.2d 565 (Ohio App. 11 Dist. 1994).
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