Boy 1, Boy 2, Boy 3, Boy 4, Boy 5, & Boy 6 v. Boy Scouts American

993 F.Supp.2d 1367

BOY 1, Boy 2, Boy 3, Boy 4, Boy 5, and Boy 6, Plaintiffs,

v.BOY SCOUTS OF AMERICA, a congressionally chartered corporation incorporated in the District of Columbia, Defendant.

Case No. C10–1912–RSM.

United States District Court,

W.D. Washington,

at Seattle.

Jan. 8, 2014.

Timothy D. Kosnoff, Daniel T. L. Fasy, Kosnoff Fasy, Seattle, WA, for Plaintiffs.

Anthony Todaro, Barbara J. Kastama, Kelly P. Corr, Sarah E. Tilstra, William Randolph Squires, III, Corr Cronin Michelson Baumgardner & Preece, Seattle, WA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

RICARDO S. MARTINEZ, District Judge.

I. INTRODUCTION

This matter comes before the Court upon Defendant Boy Scouts of America's (“BSA”) Motion for Summary Judgment (Dkt. # 83). For the reasons that follow, the motion shall be GRANTED.

II. BACKGROUND

Plaintiffs, former child Boy Scout troop members, brought suit against the Boy Scouts of America (“BSA”), for claims related to sexual abuse that occurred when Plaintiffs participated in scouting activities. The Court previously dismissed Plaintiffs' claims for negligence, outrage, civil conspiracy, equitable estoppel, fraudulent concealment, and willful and wanton misconduct under Fed.R.Civ.P. 12(b)(6). Dkt. # 22. The Court declined to rule on the sufficiency of Plaintiffs' allegations under the Sexual Exploitation of Children Act (“SECA”), RCW 9.68A. Plaintiffs were granted leave to amend and filed two First Amended Complaints (together, “FAC”) on behalf of Boys 1, 2, & 3 and Boys 4, 5, & 6, respectively. See Dkt. 23, 24. The FAC asserted the same claims against BSA, save for the claim of “estoppel and fraudulent concealment,” which was eliminated from the FAC.

The FAC included new allegations regarding the hierarchal structure of the BSA organization and details about those instances in which the local troop leaders knew about scout leaders' history of child sexual abuse but failed to warn the children of the troop. See, e.g., Dkt. # 23, ¶ 16; ¶¶ 92–93; ¶ 113. Dkt. # 24, ¶ 51; ¶ 92. Plaintiffs also included gruesome descriptions of the abuse suffered by the Plaintiffs at the hands of scouting group members.

After considering Defendant's motion to dismiss the FAC, the Court dismissed Boy 1 and Boy 5's claims with prejudice but permitted Boys 2, 3, 4, and 6's claims for negligence, outrage, and SECA to proceed. Dkt. # 31. Boys 4 and 6 have since settled, leaving only Boys 2 and 3 as Plaintiffs in this action. BSA now moves for summary judgment on Boy 2 and Boy 3's remaining claims for negligence and outrage as well as the dependant SECA claim. BSA contends that the FAC should be dismissed in its entirety.

Generally, the “Scouting Movement” is comprised of three components: BSA, scout councils, and independent community organizations. BSA is a national organization that offers an educational youth program (the Scouting program) to chartered organizations. In addition, BSA maintains a database of excluded persons in relation to its sole right to exclude individuals from membership or leadership. Scout councils grant charters to community organizations and provide Scouting publications, supplies, and training. The Scouting Movement's largest component consists of independent community organizations, such as schools, civic organizations, and churches. These organizations integrate the Scouting program into their own program, organize members into units, and appoint committees that run the unit, select leaders, and supervise those leaders.

Boy 2 was a troop member of Troop 13 in 1972. Troop 13 appears to have been sponsored by a group of parents. Leroy Van Camp was the registered scoutmaster of Troop 13. Walter Weber was Mr. Van Camp's neighbor. Although Mr. Weber had previously been a registered scoutmaster he was not a scoutmaster in 1972. Mr. Van Camp allowed Mr. Weber to participate in Troop 13's activities. Mr. Weber was not a registered troop leader or registered adult volunteer for Troop 13. Boy 2 was sexually abused by Mr. Weber while attending a troop camping trip.

Boy 3 was a troop member of Troop 666, which was sponsored by St. Monica's Catholic Church on Mercer Island. Boy 3 participated in Troop 666 from approximately 1980 to 1983. Rick Smith was the registered scoutmaster. Sometime between 1981 and 1983, Boy 3 was sexually abused by Stephen Schembs, a child member of Troop 666 who was the Senior Patrol Leader ¹ for a camping trip around Ross Lake. Boy 3's abuse occurred during the weekend hiking trip.

III. DISCUSSION

A. Legal Standard

Summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In ruling on summary judgment, a court does “not weigh the evidence or determine the truth of the matter but only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, Inc., 41 F.3d 547, 549 (9th Cir.1994) (citing FDIC v. O'Melveny & Myers, 969 F.2d 744, 747 (9th Cir.1992), rev'd on other grounds,512 U.S. 79, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994)). Material facts are those which might affect the outcome of the suit under governing law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The court must draw all reasonable inferences in favor of the non-moving party. See O'Melveny & Myers, 969 F.2d at 747. However, the nonmoving party must “make a sufficient showing on an essential element of her case with respect to which she has the burden of proof” to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion” or the court may “grant summary judgment if the motion and supporting materials ... show that the movant is entitled to it.” Fed.R.Civ.P. 56(e)(2)-(3). Whether to consider the fact undisputed for the purposes of the motion is at the court's discretion and the court “may choose not to consider the fact as undisputed, particularly if the court knows of record materials that should be grounds for genuine dispute.” Fed.R.Civ.P. 56, advisory committee note of 2010. On the other hand, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

B. Analysis

BSA contends that summary judgment should be granted on Plaintiffs' negligence, outrage, and SECA claims because Plaintiffs have failed to raise a material issue of fact that would tend to establish BSA's liability, either directly or through an agency relationship.

1. Direct Liability

As a general rule, there is no duty to prevent a third party from intentionally harming another unless “a special relationship exists between the defendant and either the third party or the foreseeable victim of the third party's conduct.” Hutchins v. 1001 Fourth Ave. Associates, 116 Wash.2d 217, 802 P.2d 1360, 1365–66 (1991) (citations omitted). The duty to prevent harm arises only where “(a) a special relation exists between the [defendant] and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the [defendant] and the other which gives to the other a right to protection.” Petersen v. State, 100 Wash.2d 421, 671 P.2d 230, 236 (1983) (quoting Restatement (Second) of Torts § 315 (1965)). Stated differently, the duty to prevent harm arises where the defendant has either (1) a special relationship with the third party that imposes a duty to control that party's actions, or (2) a special protective relationship with the victim. See id. BSA contends that Plaintiffs' tort claims must fail because it did not have a duty to control Weber or Schembs, nor did it have a special protective relationship with Plaintiffs.

a. BSA's Relationship with Weber and Schembs

As discussed above, for the special relationship exception to apply, BSA must have had a special relationship with Weber and Schembs that imposed a duty upon it to control their actions. Under Washington law, a special relationship that imposes a duty to control another's criminal acts requires “a definite, established and continuing relationship between the defendant and the third party.” Hertog v. City of Seattle, 138 Wash.2d 265, 979 P.2d 400, 407 (1999) (quoting Taggart v. State, 118 Wash.2d 195, 822 P.2d 243 (1992)). The Court finds that there is no evidence from which it could conclude that BSA had a special relationship with either Weber or Schembs.

Although the Court previously determined that Boys 2 and 3 had “sufficiently pled that BSA had a special relationship with the volunteer and paid scout leaders who perpetrated the abuse” (Dkt. # 31, p. 4), Plaintiffs have failed to provide evidence that substantiates their factual allegations. Plaintiffs' FAC alleges that “BSA and BSA's local councils comprise a tightly integrated, hierarchical organization structure under BSA's control at the top,” that “BSA oversees and controls all professional staffing of local councils,” and that “[u]nless BSA has selected and approved them, no adult leader, whether paid or volunteer, may serve in a local troop or council.” Dkt. # 23, ¶ 16. BSA's alleged ability to control the actions of Weber and Schembs, as explicated within the FAC, however, is not borne out by the evidence in the record.

First, Weber and Schembs were not troop leaders or registered volunteers at the time the sexual abuse occurred. Despite having been a scoutmaster in the past, when the abuse of Boy 2 occurred, there is no evidence that Weber was a formal member of Troop 13....