Kuykendall v. Young Life

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-2240
JEFFREY WILLIAM KUYKENDALL,
Plaintiff - Appellant,
versus
YOUNG LIFE,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:05-cv-00581-SGW)
Submitted: October 15, 2007 Decided: January 9, 2008
Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David D. Walker, P.C., Salem, Virginia; William B. Taylor, IV,
Andrew K. Macfarlane, Noel P. McDonell, MACFARLANE, FERGUSON &
MCMULLEN, Tampa, Florida, for Appellant. Frank K. Friedman, Daniel
S. Brown, Joshua F. P. Long, WOODS ROGERS, P.L.C., Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Kuykendall appeals the district court’s grant of
summary judgment in favor of Young Life on his claims of gross
negligence and willful and wanton negligence. Kuykendall brought
this action seeking damages for injuries sustained when he fell
more than thirty feet from a ropes course operated by Young Life.
He contends that the district court erroneously grounded its ruling
in Virginia’s charitable immunity doctrine. Kuykendall further
argues that his fall resulted from several negligent acts and
omissions by Young Life that cumulatively amount to gross
negligence. Concluding that Kuykendall failed to present evidence
from which a reasonable jury could find that Young Life’s conduct
was either grossly negligent or wilfully and wantonly negligent, we
affirm.
I.
Because this is an appeal from the district court’s grant of
summary judgment in favor of Young Life, we review the facts in the
light most favorable to Kuykendall. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986) (noting that all evidence must be
construed in the light most favorable to the party opposing summary
judgment).
A. Young Life
Young Life is a national “non-denominational, Christian, non-
profit organization that is committed to introducing adolescents to
2
Jesus Christ and helping them grow in their faith.” (J.A. at 140.)
Young Life owns and operates numerous camps, including a facility
at Rockbridge Alum Springs, Virginia (hereinafter “Rockbridge”).
Campers arrive at camp with their leaders, with whom they share a
cabin. The camp program at Rockbridge includes religious learning
and instruction, as well as participation in an outdoor “challenge
course” that includes a high ropes course. (J.A. at 310.)
The challenge course represents a central part of the camp
experience. Young Life intends the course to further various
objectives, including helping campers accomplish something they
might not have thought they could do, enabling campers to grow
closer to each other and to their leaders, and “partner[ing] with
the total camp program by demonstrating a part of the ‘abundant
life’ that a relationship with Christ offers.” (J.A. at 187.) As
part of its efforts to foster the relationship between campers and
their leaders, Young Life asks two of the cabin leaders to
volunteer to take a station along the ropes course; at their
station, the leader-volunteers help campers transfer between the
different elements that comprise the course.
B. Kuykendall’s Experience with Young Life & His Fall from the
Ropes Course
Kuykendall began volunteering for Young Life as a college
student and, as a result, became familiar with ropes courses at
camps other than Rockbridge. In addition to completing ropes
courses on various occasions, Kuykendall once spent five days
3
helping to prepare the course at Young Life’s camp in Windy Gap,
North Carolina for the summer season. This preparation required
him to, among other things, negotiate the entire ropes course,
check the tightness of bolts, and trim branches that had grown on
the course. Kuykendall also participated in a weekend training
program, through which he became certified to act as a “Weekend
Wrangler” at the Windy Gap course. He “wrangled” there on a number
of weekends beginning in September 2002 and ending in April or May
of 2003.
In July 2003, Kuykendall brought a Young Life group from
Mooresville High School to Rockbridge. His group set out to
complete the ropes course on the Fourth of July. The facilitator
on duty, Bernard Newton, requested that two of the group leaders
volunteer to assist the campers in transferring between elements,
and Kuykendall stepped forward to volunteer. It does not appear
that Newton was aware of or inquired about Kuykendall’s previous
ropes course experience.
Newton provided both volunteers with safety instructions
explaining belay transfer techniques and other pertinent
information. Part of Newton’s safety talk involved a demonstration
of Rockbridge’s policy of “clipping to the red.” This instruction
was necessary because certain sections of cable along the course --
namely the “tail end” or “tag end” of the belay cable -- were not
load-bearing. Accordingly, Young Life had marked each end of the
4
weight-bearing cables with markers encircled with red tape.
Participants were to attach their carabiners to the weight-bearing
cable marked in red so that they would be securely tethered to the
course. Newton’s practice was to “tell everybody to clip between
the red.” (J.A. at 310.) He would always make clear that
participants must hook in between the red markers at either end of
the load-bearing cable because that portion of the cable was the
safest. In his own words, Newton would consistently “make sure
[he] was making it clear to hook in between the reds” and “was
always very, very clear about that.” (J.A. at 339.) Then, using
the cable at the first platform of the ropes course where it “was
easy for [participants] to see the red marks,” he would demonstrate
clipping to the proper portion of the cable. (J.A. at 310.)
Newton’s practice was consistent with the procedure taught by
Rockbridge’s challenge course manager, Ken Hewett. Hewett too
would remind campers to “clip to the red” as “a nice little phrase
[participants] c[ould] remember” and would demonstrate clipping
between the red markers (i.e. beyond the first red taped marker).
(J.A. at 493.)1
1
In his deposition, Kuykendall was asked whether he remembered
being instructed to clip to the red. He responded: “That sounds
familiar, I don’t know when in the instruction that was told, but
clip to the red sounds familiar.” (J.A. at 285.) Overall,
Kuykendall indicated that his memory of the safety instructions was
hazy; he could not remember, for example, whether a man or a woman
had instructed him. Subsequently, Kuykendall submitted with his
response to Young Life’s summary judgment motion an affidavit
stating that he had not been made aware that Rockbridge
5
Contrary to Young Life’s policy, however, Newton did not
accompany Kuykendall to the station where he would be helping the
campers do “belay transfers” to see that Kuykendall clipped in
properly.2 Young Life’s procedure was for the facilitator to take
the volunteer leader to their station and tell them where to stand
and where to clip to the cable. Newton, however, watched as
Kuykendall proceeded through the beginning of the course and
directed him to his station from the ground before sending any
campers onto the course. Newton’s general practice was to have one
of the summer staff help the volunteer do the transfer to their
station because his line of sight from his position on the ground
would not have been as good.
When Kuykendall arrived at his station, he saw the red marker
at the end of the load-bearing cable closest to him but did not
facilitators demonstrated to clip between the red markers. This
affidavit contradicted Kuykendall’s deposition testimony that he
remembered little of the instructions given him, but clip to the
red sounded familiar. Accordingly, the affidavit cannot create a
genuine issue of material fact as to the instructions Kuykendall
received. See Rohrbough v. Wyeth Laboratories, Inc., 916 F.2d 970,
975 (4th Cir. 1990) (“If a party who has been examined at length on
deposition could raise an issue of fact simply by submitting an
affidavit contradicting his own prior testimony, this would greatly
diminish the utility of summary judgment as a procedure for
screening out sham issues of fact.” (internal quotation marks
omitted)).
2
The ropes course at Rockbridge consisted of seven “elements.”
Transitioning from one element to the next required participants to
do a belay transfer to move from one cable around a tree to the
next. Each participant has two carabiners, which he moves one at
a time from one cable to the other, so that he remains attached to
something at all times.
6
look any farther toward the other end to see where the other marker
was located. Between that red marker and the tree at his station,
Kuykendall saw two cables side by side. Kuykendall knew that there
were cables or cable parts that were not weight-bearing on the
Rockbridge course, and he knew that they were clearly labeled.
Although he had seen tag ends at Windy Gap and knew that they “went
up next to the rest of the cable,” Kuykendall had never been
instructed not to hook onto them. (J.A. at 256.) And it did not
occur to him that one of the parallel cables at his station had to
be the “tail end” or “tag end” of the excess cable.3
Kuykendall clipped both carabiners to one of the parallel
sections of cable without “think[ing] about it.” (J.A. at 291.)
Initially, he was able to successfully assist campers with their
belay transfers. When Kuykendall leaned back in his harness to
demonstrate its safety to a timid camper, however, the cable to
which he had attached his carabiners gave way, and he fell at least
thirty feet to the ground. As a result of the fall, Kuykendall
sustained serious injuries, necessitating surgery on his back and
3
As explained below, one of the parallel cables was attached
to the other by means of a lightweight piece of hardware called a
“serving sleeve.” During the course of this litigation, Hewett
identified a photograph of the serving sleeve at the time of
Kuykendall’s accident; the serving sleeve had red tape around it.
Kuykendall did not mention noticing the serving sleeve in his
deposition. In his subsequently submitted affidavit, however,
Kuykendall stated that the cable to which he attached his
carabiners “appeared secured by a red sleeve and marked with red
tape,” leading him to believe that it was weight bearing. (J.A. at
618.)
7
wrists, as well as extensive rehabilitation. It was later
determined that the fall occurred because Kuykendall had clipped
his carabiners to a section of the cable that was not weight-
bearing.
C. Construction and Design of the Rockbridge Ropes Course
An outside professional, Randy Smith of Inter Quest,
constructed the ropes course at Rockbridge in March of 2000. The
construction followed standards set by the Association for
Challenge Course Technology (“ACCT”), which “detail common and
recommended practices in challenge course construction, inspection
and operation.” (J.A. at 102.)
Strand vises4 represent the primary means of securing the
weight-bearing belay cables that run between trees. The strand
vise is mechanically secured to the tree by a fastener that runs
through a hole drilled in the tree. Excess cable runs through the
strand vise and back around the tree, where it is fastened back to
the belay cable by cable clamps located further from the tree than
the strand vise. This fastening forms a back-up in case the strand
vise fails.
Some of the excess cable necessarily extends beyond the cable
clamps. The excess cable extending beyond the clamps (the “tail
end” or “tag end” of the cable) is secured at its tip to the belay
cable by means of a serving sleeve, a lightweight piece of hardware
4
A strand vise is a metal grip connected to a bolt.
8
that is intended only to keep the tail end of the excess cable snug
against the main cable, not to bear weight. (J.A. at 177.)
Although construction standards specify that the excess cable
extending beyond the cable clamps should be a minimum of two
inches, there is no maximum length required or recommended.5 A
survey of the ropes course revealed lengths of excess cable between
four and sixteen inches. The excess cable at Kuykendall’s station
at the time of his fall was fifteen inches long.
In an e-mail describing the results of an investigation into
Kuykendall’s accident, Robbie Robertson, Rockbridge’s Property
Manager, discussed the excess cable in detail. Robertson’s e-mail
explained that the excess cable between the clamps and the serving
sleeve is meant to be parallel and snug, so that a carabiner will
slide over both cables as a participant moves through the course.
If the length of excess cable beyond the clamps is less than eight
inches, the rigidity of the cables will prevent a participant from
mistakenly inserting a carabiner over just one of the two parallel
cables. With longer lengths of excess cable, however, there is
enough slack between the cables for a participant to clip to only
one. According to Robertson’s e-mail, “[i]f this happens, there
is a 50/50 chance that the carabineer [sic] will hook over the
5
Young Life provided expert deposition testimony that the two
inch minimum is not actually a standard of the Association for
Challenge Course Technology (“ACCT”), but is rather a
manufacturer’s standard contained in an appendix to the ACCT
standards.
9
excess cable run which is secured at one end only b[y] the serving
sleeve, which is not designed to bear weight.” (J.A. at 177.)
This observation from the investigation into Kuykendall’s fall led
Rockbridge to examine every place along the course where it might
be possible to hook a carabiner solely to an excess cable.
Anywhere the length of excess cable beyond the cable clamps was
more than eight inches, Rockbridge installed an additional serving
sleeve at the midpoint, making it impossible to insert a carabiner
over only one cable. Robertson recommended to other Young Life
camps that they do the same because in-house discussion of possible
remedies had revealed that some locations wrapped the cables in
tape to keep them snugly together -- a remedy Rockbridge’s former
inspector indicated that he would not accept because the tape would
prevent visual inspection of the cable and trap moisture, which
could cause the cable to fail.
After Kuykendall’s accident, Young Life added to its
construction standards a requirement that the tag end of the excess
table be no more than four inches in length.6
6
In response to allegations from Kuykendall that the e-mail
showed knowledge of a dangerous condition, Robinson submitted a
declaration stating that he had not recognized any potential danger
on the course at the time of the accident and was simply
recommending that any camps that did not already use additional
serving sleeves to keep the cables snug do so.
10
D. Maintenance and Inspection of the Rockbridge Ropes Course
In maintaining the Rockbridge ropes course, Young Life relied
on both outside professionals and its own staff. A representative
from Adventure Experiences, Inc., a full service challenge course
construction company and ACCT professional vendor member, performed
annual inspections. Young Life passed the 2003 annual inspection
in March, three months before Kuykendall’s accident. Young Life’s
staff also conducted monthly inspections of the course during the
school year and daily visual inspections during the summer camp
season. Hewett, who was a certified Adventure Experiences
inspector, conducted a monthly inspection on May 20, 2003.
Thereafter, facilitators and summer staff performed the daily
visual inspections. In addition to conducting visual inspections
of the ropes course on the days that he was at Rockbridge, Newton
regularly reminded the summer staff to look around as they
traversed the course to ensure that nothing looked out of place or
potentially problematic.
Before Kuykendall’s fall, there had been no major injuries on
the ropes course. A few incidents had resulted in injuries such as
a sprained ankle or a cut requiring a few stitches that were
sufficiently minor to be treated on-site. None of these incidents,
however, involved a fall from the course.7
7
In addition, a camper was once injured on a separate portion
of the challenge course called the “Big Swing”; another fell off a
cargo net suspended four to five feet off the ground during an
11
There was no evidence that anyone at Rockbridge was aware of
the gap between the cables before Kuykendall’s accident or realized
that he might unwittingly clip to the tail end of the excess cable.
Newton did not remember looking for a gap between the tail end of
the excess cable and the main cable as being a specific part of his
training. Nevertheless, he believes that if he had noticed such a
gap, he would have reported it to Hewett. Although Hewett was
aware that excessive space between the two cables could pose a
problem, that issue was not “on [his] radar” before the accident
occurred. Still, Hewett felt confident that if he had seen slack
in the excess cable creating excessive space between the tail end
and the main cable, he would have done something about it.
E. Training of the Rockbridge Staff
Both Newton, the facilitator on duty when Kuykendall fell from
the course, and Hewett, the challenge course manager (who was not
at Rockbridge on the day of the accident), had undergone ropes
course training. Newton completed 30 hours of training in March of
2003 from Adventure Experiences. Upon completion of this training,
he passed a test with written and practical components and received
a certification. Hewett had extensive training and experience,
having worked for Adventure Experiences for seven years as
wilderness director of their Colorado camp prior to his employment
with Rockbridge. As a refresher course, Hewett attended the March
activity that was not part of the challenge course.
12
2003 training program along with Newton. Hewett and one or two of
the facilitators at Rockbridge trained the summer staff on ropes
course.
F. Expert Deposition Testimony & Declarations
Daniel Pervorse of Signature Research, a company which
provides challenge course construction and design, offered expert
deposition testimony on behalf of Young Life. Pervorse had
extensive experience in challenge course training, operation, and
design. He stated that it was appropriate to train ropes course
participants where to clip in without also discussing where they
should not clip because discussing what participants should not do
might lead them to make mistakes. Thus, Pervorse found no fault
with Young Life’s instructing ropes course participants to clip to
the weight-bearing cables without specifically instructing them not
to clip to the portion of the excess cable that was not weight-
bearing. Pervorse also believed that Newton had used appropriate
judgment in working with Kuykendall, although it did appear that
Newton had not adhered to Young Life’s site specific procedure for
the activity in which Kuykendall was engaged. Pervorse testified
that although he would expect a course builder to recognize and
correct a gap between the main cable and the end of the excess
cable, he would not typically have expected a course facilitator to
do the same because if the facilitator had told participants where
13
to clip in, the gap would be a non-issue, since participants would
know to clip in beyond it.
In contrast, Kenneth Jacquot, who, like Pervorse, had worked
in the challenge course industry for a number of years, submitted
an expert declaration on behalf of Kuykendall. Jacquot’s
declaration stated that any ropes course that did not have a
challenge course manager who understood the danger of a gap between
the main cable and the end of the excess cable should be shut down
until staff had sufficient training to recognize the condition.8
Jeffery Boeke, CEO of ABEE, Inc. (an accredited professional
vendor member of ACCT), who had over twenty-five years experience
in challenge course training, construction, and inspection, also
8
Jacquot opined that the suggestion in Robertson’s e-mail that
a person in Kuykendall’s position on the day of the accident would
have a fifty percent chance of hooking to the non-weight-bearing
cable was correct and that subjecting someone to that risk
“approaches, if not reaches, willful recklessness.” (J.A. at 610.)
Jacquot also stated that Rockbridge had “numerous separate
violations of the ACCT standards under which it said it was
operating,” but did not specify which standards Rockbridge violated
or what conduct constituted the violations. Instead, he further
opined that the alleged violations evidenced “a degree of
negligence showing indifference to another and an utter disregard
of prudence which amounts to a complete neglect of the safety of
such other person” and that “this degree of negligence would shock
fair-minded people” and “approach, if not reach, a degree of
negligence constituting wilful [sic] recklessness.” (J.A. at 610.)
On appeal, Kuykendall does not contend that Jacquot’s conclusory
statements regarding the degree of alleged negligence are
sufficient to create a genuine issue of material fact -- a wise
move, given that it is well settled that a party “cannot assure
[it]self of a trial merely by trotting out . . . [an] expert’s
naked conclusion about the ultimate issue.” Weigel v. Target
Stores, 122 F.3d 461, 469 (7th Cir. 1997) (internal quotation marks
and citations omitted).
14
submitted a declaration on behalf of Kuykendall. Boeke stated that
Newton’s failure to accompany Kuykendall to his station
demonstrated an absence of adequate training and supervision.
G. The Present Litigation
On June 20, 2005, Kuykendall filed suit against Young Life in
the United States District Court for the Middle District of
Florida, invoking the district court’s diversity jurisdiction.9 In
an amended complaint filed July 25, 2005, Kuykendall asserted
claims of Gross Negligence (Count I) and Willful and Wanton
Negligence (Count II) against Young Life.
On September 9, 2005, the district court granted Young Life’s
motion to transfer the case to the Western District of Virginia.
After the transfer, Young Life amended its answer to raise
Virginia’s charitable immunity doctrine as an affirmative defense
against “any acts or omissions of simple negligence attributable to
Young Life.” (J.A. at 17.)
Following discovery, in July 2006, Young Life moved for
summary judgment.10 The district court granted the motion in a
9
Kuykendall is a citizen of Florida and Young Life is a
Colorado non-profit organization with its principal place of
business in Colorado. Kuykendall’s complaint sought $2.5 million
in damages, an amount well in excess of the amount in controversy
requirement codified in 28 U.S.C.A. § 1332 (West 2006).
10
Young Life submitted declarations in support of its summary
judgment motion seven days after filing the motion itself, after
the deadline for the filing of dispositive motions. Young Life
also submitted supporting exhibits with its Reply to Kuykendall’s
Response to the motion. On appeal, Kuykendall objects to Young
15
memorandum opinion and order dated November 7, 2006. Kuykendall
timely noted an appeal, and we possess jurisdiction pursuant to 28
U.S.C.A. § 1291 (West 2006).
II.
A.
We review de novo the district court’s grant of summary
judgment to Young Life, applying the same standards that the
district court was required to apply. See Laber v. Harvey, 438
F.3d 404, 415 (4th Cir. 2006) (en banc). “Summary judgment is
appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(c) (West
1992)). As noted, we construe the evidence in the light most
favorable to Kuykendall, the non-moving party, and draw all
reasonable influences in his favor. Id.B.
As an initial matter, we must briefly address Kuykendall’s
argument that the district court misapplied Virginia’s charitable
Life’s “tactics” in timing the submission of the declarations.
Because he never objected to the district court’s consideration of
this evidence, however, he has waived any argument that it should
not form part of the record. Also, we note that Young Life claims
Kuykendall did not previously object because Young Life’s evidence
responded to depositions Kuykendall conducted well after the
discovery deadline had passed.
16
immunity doctrine.11 Under Virginia law, a charitable institution
is immune from liability to its beneficiaries for the negligence of
its servants or agents, provided that the charity has exercised due
care in their selection and retention. See Cowan v. Hospice
Support Care, Inc., 603 S.E.2d 916, 918 (Va. 2004). Virginia
recognizes three levels of negligence, and the doctrine shields
charities from liability only for the first -- simple negligence;
it does not extend to gross negligence or willful and wanton
negligence. Id. at 919 (holding that “the public policy rationale
that shields a charity from liability for acts of simple negligence
does not extend to acts of gross negligence and willful and wanton
negligence”).
Contrary to Kuykendall’s repeated assertions, the district
court did not grant summary judgment to Young Life on the basis of
Virginia’s charitable immunity doctrine. The district court simply
noted that “Kuykendall [did] not contest the application of
Virginia’s charitable immunity doctrine,” but rather “argue[d] that
the facts [were] sufficient to prove gross negligence.” (J.A. at
669.) The district court properly recognized that Virginia’s
charitable immunity doctrine did not apply to Kuykendall’s claims
of gross negligence and willful and wanton negligence and was
11
Because the accident in question occurred in Virginia, that
State’s substantive law governs Kuykendall’s complaint.
17
therefore irrelevant to its analysis of those claims.12 By failing
to pursue a simple negligence claim, Kuykendall has waived any
argument that “there is an obvious need to create further[]
contours in the [charitable immunity] doctrine,” (Appellant’s Br.
36), which he believes should not cover dangerous activities
conducted by charities.13
C.
We therefore turn to the single, dispositive issue in this
appeal -- whether Kuykendall presented sufficient evidence for a
reasonable jury to conclude that his fall from the ropes course
resulted from Young Life’s gross negligence or willful and wanton
negligence. As explained above, Virginia law recognizes three
levels of negligence. The first, simple negligence, “involves the
12
Kuykendall argues that the district court disregarded Cowan
v. Hospice Support Care, Inc., 603 S.E.2d 916 (Va. 2004) by failing
to focus on the nature of the activity conducted by Young Life. In
addition to mischaracterizing the district court’s order, this
contention misconstrues Cowan, which never suggested that courts
should consider the services provided by the charity in determining
the applicability of the charitable immunity doctrine. Rather, the
Virginia Supreme Court in Cowan considered the nature of the
conduct involved in the three levels of negligence recognized under
Virginia law to determine whether the charitable immunity doctrine
should apply to all three, or only to simple negligence. Id. at
918-19.
13
Kuykendall did argue before the district court that the ropes
course was an ultrahazardous or inherently dangerous activity for
which strict liability might be appropriate. The district court
rejected that argument on the ground “the hallmark of an
ultrahazardous activity is the inability to eliminate the risk
through the exercise of reasonable care,” (J.A. at 670 (internal
quotation marks omitted)), and Kuykendall has not appealed that
ruling.
18
failure to use the degree of care that an ordinarily prudent person
would exercise under similar circumstances to avoid injury to
another.” Cowan, 603 S.E.2d at 918. The second level, gross
negligence, represents “a degree of negligence showing indifference
to another and an utter disregard of prudence that amounts to a
complete neglect of the safety of such other person.” Id. “This
requires a degree of negligence that would shock fair-minded
persons, although demonstrating something less than willful
recklessness.” Id. The third level, willful and wanton
negligence, involves “acting consciously in disregard of another
person’s rights or acting with reckless indifference to the
consequences, with the defendant aware, from his knowledge of
existing circumstances and conditions, that his conduct probably
would cause injury to another.” Id. at 919 (internal quotation
marks omitted).
The district court concluded that the evidence could not
support a finding that Young Life was indifferent or apathetic
toward Kuykendall’s safety and that it was therefore insufficient
to prove gross negligence. The district court agreed with
Kuykendall that multiple acts of simple negligence can amount to
gross negligence, but stressed that this can only be the case if
the cumulative effect of the negligent acts demonstrates an utter
disregard of prudence amounting to an indifference to the
plaintiff’s safety. See Ferguson v. Ferguson, 181 S.E.2d 648, 652
19
(Va. 1971) (explaining that “the cumulative effect of several acts
of negligence may constitute gross negligence, . . . not because of
the number of acts of simple negligence, but because the cumulative
acts, when taken together and considered under the facts and
circumstances of the case[] under review, did constitute gross
negligence”). The court noted that Young Life had made efforts to
provide for Kuykendall’s safety by hiring an expert to examine the
course less than two months before Kuykendall fell, giving
facilitators more than 24 hours of training, and allowing only
experienced, trained volunteers to assist the facilitator. In
addition, the facilitator instructed the leaders and campers
regarding proper techniques for clipping into and maneuvering
through the course. Ultimately, it concluded that the evidence
could not support a finding of gross negligence.
Kuykendall argues that the district court erred in concluding
that he had not presented sufficient evidence to raise a genuine
issue of material fact as to whether Young Life committed several
negligent acts which, taken together, show the “utter disregard of
prudence that amounts to a complete neglect of [his] safety,”
Cowan, 603 S.E.2d at 918, necessary to prove gross negligence. In
support of his argument that Young Life committed various negligent
acts and omissions, Kuykendall asserts that: (1) because there was
no need for the excess cable beyond the serving sleeve to be longer
than eight inches, the fifteen inch excess cable at Kuykendall’s
20
station on the date of the accident represented a known latent
defect that Young Life failed to remedy; (2) neither Young Life nor
the third party vendor that designed and built the ropes course
expressly informed Kuykendall that a gap had formed between the
excess cable and the main cable; (3) Young Life failed to take
reasonable precautions to discover the gap between the cables at
Kuykendall’s station; (4) Young Life’s “clip to the red” policy was
misleading especially because the serving sleeve holding the excess
cable was marked in red tape; and (5) Newton watched Kuykendall
from the ground rather than taking him to his station to ensure
that he clipped in properly. According to Kuykendall, these five
allegedly negligent acts and omissions add up to gross negligence
on Young Life’s part. We cannot accept this contention.
First, the record does not support Kuykendall’s assertion that
the 15-inch length of excess cable represented a known defect of
which he should have been informed. Kuykendall relies heavily on
Robertson’s e-mail; the post-accident e-mail, however, does not
demonstrate that Young Life knew before the accident occurred that
(1) a gap had developed between the excess cable and main cable, or
(2) its “clip to the red” instruction and accompanying
demonstration of “where and how to clip properly,” (J.A. at 667),
would be insufficient to prevent a volunteer from unthinkingly
attaching both carabiners to the non-weightbearing excess cable.
In contrast, Newton and Hewett testified that they did not notice
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the gap between the cables. Newton also indicated that he did not
understand the potential danger of such a gap before the accident.
Thus, there is no evidence that Young Life recognized and
deliberately ignored the condition leading to Kuykendall’s fall.
Cf. City of Lynchburg v. Brown, 613 S.E.2d 407, 410 (Va. 2005)
(“‘Deliberate conduct is important evidence on the question of
gross negligence.’” (quoting Chapman v. City of Virginia Beach, 475
S.E.2d 798, 801 (Va. 1996))).
Second, we agree with the district court that Kuykendall’s
evidence could not support a finding that Young Life’s acts and
omissions, in total, reflected “a degree of negligence showing
indifference to another and an utter disregard of prudence that
amounts to a complete neglect of the safety of such other person.”
Cowan, 603 S.E.2d at 918. The Virginia Supreme Court has indicated
that for the “cumulative effect of the[] circumstances” to
constitute gross negligence, it must amount to “a total disregard
of all precautions, an absence of diligence, or lack of even slight
care.” Chapman, 475 S.E.2d at 801. Compare Brown, 613 S.E.2d at
410 (holding that a plaintiff who fell from a defective city-owned
bleacher at a baseball game could not prove gross negligence and
stressing that “there [was] no evidence of deliberate conduct by
municipal employees or of a total disregard of all precautions by
them”); Frazier v. City of Norfolk, 362 S.E.2d 688, 690-91 (Va.
1987) (holding that a child who fell from an orchestra pit eighteen
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feet into a basement could not prove gross negligence, even though
the city, which owned the building, was in violation of its
building code because railings were not in place and a child had
previously suffered a similar fall).
Here, Young Life presented uncontradicted evidence detailing
its efforts to maintain the safety of the ropes course itself
through regular inspections and the safety of campers and cabin
leaders traversing the course through the assistance of trained
staff. Prior to the summer camp season, certified inspectors had
conducted both annual and monthly inspections of the ropes course.
Thereafter, facilitators and supporting volunteers completed daily
visual inspections. Newton, the facilitator on the date Kuykendall
fell, had completed a thirty-hour training program and received a
certification from an independent organization (Adventure
Experiences). “Only experienced, trained volunteers assisted
[Newton].” (J.A. at 670.) Moreover, before permitting Kuykendall
to enter the ropes course, Newton “ma[de] sure [he] was making it
clear to hook in between the reds” so that Kuykendall would clip
to the safest portion of the cable. (J.A. at 339.) The many
precautions Young Life took to ensure Kuykendall’s safety preclude
a finding that it demonstrated an “absence of slight diligence, or
the want of even scant care.” Chapman, 475 S.E.2d at 801 (internal
quotation marks and citations omitted).
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From our vantage point and with the benefit of hindsight, it
seems clear that Young Life could, and perhaps should, have done
more to prevent Kuykendall’s fall and stave off the serious
injuries that resulted. The precautions Young Life took to protect
Kuykendall may well have been inadequate, but the standard for
gross negligence is one of indifference, not inadequacy. A
reasonable jury could not find, in the face of the safety measures
Young Life employed, that Young Life’s conduct evinced “a degree of
negligence showing indifference to [Kuykendall] and an utter
disregard of prudence that amounts to a complete neglect of [his]
safety.” Cowan, 603 S.E.2d at 918. Because Kuykendall cannot
prove gross negligence, he cannot as a matter of law prove willful
and wanton negligence.
III.
In sum, we conclude that Kuykendall has waived his argument
related Virginia’s charitable immunity doctrine by failing to
pursue a simple negligence claim in the district court. We further
conclude that the district court did not err in finding
Kuykendall’s evidence insufficient to demonstrate that Young Life’s
acts and omissions rose to the level of gross negligence or willful
and wanton negligence under Virginia law. Accordingly, the
judgment of the district court is
AFFIRMED.
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