CHANCY M. ELLIOTT, ADMINISTRATOR OF THE ESTATE OF CALEB MCKINLEY SMITH, DECEASED
THE CIRCUIT COURT OF RICHMOND COUNTY Harry T. Taliaferro,
All the Justices
BERNARD GOODWYN, JUSTICE.
appeal, we consider the evidence required to submit a
question of gross negligence to a jury.
matter arises from a wrongful death suit brought by Chancy M.
Elliott (Elliott) on behalf of the estate of Caleb McKinley
Smith (Caleb), alleging gross negligence on the part of
Trevor Carter (Carter), the peer leader of Caleb's Boy
Scout troop, after Caleb drowned on a Scout camping trip. The
material facts are not in dispute.
25, 2011, Caleb was a 13-year-old Boy Scout on an overnight
camping trip with his troop along the Rappahannock River near
Sharps, Virginia. Carter, then 16 years old, was the Senior
Patrol Leader, the troop's peer leader. Caleb had been
taking lessons to learn how to swim-he had had one from
Carter that morning-but he could not yet swim.
about 11:00 a.m., Carter led Caleb and two other Boy Scouts
into the river along a partially submerged sandbar. One of
the other two Scouts could swim (Scott), and the other could
they were approximately 150 yards into the river, Carter and
Scott decided to swim back to shore. Carter told Caleb and
Elijah to walk back to shore the way they had come, along the
sandbar. As Caleb and Elijah walked back to shore along the
sandbar, they both fell into deeper water. Caleb yelled to
Carter for help and Carter attempted to swim back and rescue
him. Although Elijah was rescued, neither Carter nor three
adult Scout leaders, who attempted to assist, were able to
filed a wrongful death action in the Circuit Court of
Richmond County against Carter, four adult Scout leaders, the
Boy Scouts of America, and the affiliated Heart of Virginia
Council, Inc. (collectively, Defendants), alleging that they
had failed to adequately supervise Caleb. The court granted
the Defendants' demurrer asserting charitable immunity.
amended her complaint to allege both gross and willful and
wanton negligence by Carter and gross negligence by the four
adult Scout leaders, and demanded a jury trial.[*]Defendants filed a motion for summary
judgment arguing that, based upon undisputed material facts,
there was no gross negligence because there was no complete
lack of care alleged and the danger of drowning was open and
obvious. Defendants relied upon Elliott's responses to
requests for admission and allegations in the amended
complaint in establishing the undisputed material facts.
a hearing and supplemental briefing, the court granted the
motion for summary judgment as to all Defendants. It found
that, while the undisputed material facts would be sufficient
to submit the question regarding a claim of simple negligence
to a jury, the facts did not support a claim for gross
negligence, because in Virginia, "there is not gross
negligence as a matter of law where there is even the
slightest bit of care regardless of how insufficient or
ineffective it may have been, " and there was evidence
that Carter did try to save Caleb.
Elliott appeals the ruling of the circuit court only as to
Carter. On appeal, she argues that the circuit court erred in
granting summary judgment and in concluding that, as a matter
of law, a jury ...