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M.S. ex rel. Michelle M.S. v. Cedar Bridge Military Academy

United States District Court, M.D. Pennsylvania

October 17, 2012

M.S., a Minor, by and through his parents and Natural Guardians, MICHELLE M.S. and D.S., Plaintiffs
v.
CEDAR BRIDGE MILITARY ACADEMY, et al., Defendants.

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Edward Shensky, Stark & Stark, Yardley, PA, for Plaintiffs.

Tara L. Yodice, Law Offices of Tara L. Yodice PC, Nutley, NJ, John C. Porter, Robert A. Lerman, Griffith, Stickler, Lerman, Solymos & Calkins, York, PA, for Defendants.

Steven T. Baryla, Toms River, NJ, pro se.

ORDER

CHRISTOPHER C. CONNER, District Judge.

AND NOW, this 17th day of October, 2012, upon consideration of the Magistrate Judge's report (Doc. 78) recommending that defendant York-Adams Area Council, Inc.'s (" York-Adams" ) motion for summary judgment (Doc. 71) be granted in part on plaintiff M.S.'s negligence claim related to the absence of liability insurance because M.S. cannot establish that York-Adams had a duty to ensure that defendant Cedar Bridge Military Academy (" Cedar Bridge" ) maintain liability insurance [1] and denied in part on M.S.'s claim that York-Adams was negligent in failing to warn or protect M.S. because a jury could reasonably find that York-Adams knew or should have known of the potential for harm to M.S. and thus had a duty to warn or protect him, and upon further consideration of York-Adams's objections to the report (Doc. 79),[2] and, following an

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independent review of the record,[3] the court concluding that a jury could reasonably find that York-Adams knew or should have known of the potential for harm to M.S. and thus had a duty to warn or protect him,[4] it is hereby ORDERED that:

1. Except as set forth herein, the report and recommendation (Doc. 78) of the Magistrate Judge are ADOPTED.
2. York-Adams Area Council, Inc.'s Motion for Summary Judgment (Doc. 71) on M.S.'s claim that York-Adams was negligent in failing to warn or protect M.S. against the allegedly tortious acts of Baryla and/or Cedar Bridge is DENIED.
3. York-Adams Area Council, Inc.'s Motion for Summary Judgment (Doc. 71) on M.S.'s negligence claim related to the absence of liability insurance is GRANTED.

REPORT AND RECOMMENDATION ON MOTION FOR SUMMARY JUDGMENT (Doc. 71)

MILDRED E. METHVIN, United States Magistrate Judge.

Plaintiff, M.S., is a minor appearing here through his parents. All three are residents of Connecticut. Plaintiff alleges he suffered verbal and physical abuse while attending a summer camp in 2007 run by the Cedar Bridge Military Academy, a private, non-profit organization which is now defunct. By virtue of a lease, Cedar Bridge's camp was located on a portion of Camp Tuckahoe in York County, Pennsylvania, a camp which was owned and otherwise operated by the York-Adams Area Council, Inc. (" York-Adams Boy Scouts" ).

Plaintiff filed a complaint on December 19, 2008 ( Doc. 1 ) and thereafter filed an amended complaint on January 20, 2010. ( Doc. 32 ). Named as defendants are Cedar Bridge Military Academy; Steven T. Baryla, co-founder and director of Cedar

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Bridge's summer camp; and the York-Adams Boy Scouts. [1] This court has jurisdiction pursuant to 28 U.S.C. ยง 1332.

The sole claims in dispute are those asserted against the York-Adams Boy Scouts.[2] Plaintiff contends that:

1) as landlords in possession of the property, the York-Adams Boy Scouts knew or should have known of the harmful conduct perpetrated by Cedar Bridge and Baryla against the minor plaintiff, and were negligent " in failing to deter, prevent, stop or otherwise monitor, review or evaluate the actions of Defendants Cedar Bridge and Baryla which resulted in the harm as aforementioned to minor plaintiff."
2) The York-Adams Boy Scouts were negligent in failing to insure that Cedar Bridge and Baryla were covered by a policy of liability insurance for the relevant camping season, as required in the Letter Agreement.

Before the court is the York-Adams Boy Scouts's motion for summary judgment. [3] The motion has been referred to the undersigned for a report and recommendation, and is now ripe for disposition.

ISSUES PRESENTED

York-Adams Boy Scouts advances the following arguments in favor of summary judgment:

1. As a factual matter, it had no reason to suspect that the acts alleged by plaintiff were being committed, and thus had no duty as the possessor of land to warn or protect against tortious acts of third persons against its invitee.
2. With respect to the issue of liability insurance, Pennsylvania law does not recognize a duty of a landlord to a tenant's invitees to ensure the tenant maintains liability insurance.

FINDINGS AND RECOMMENDATIONS

I. Background

The facts, viewed in a light most favorable to plaintiff as the non-mover, reveal the ...


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