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Elliott v. Carter

Supreme Court of Virginia

October 27, 2016

CHANCY M. ELLIOTT, ADMINISTRATOR OF THE ESTATE OF CALEB MCKINLEY SMITH, DECEASED
v.
TREVOR CARTER

         FROM THE CIRCUIT COURT OF RICHMOND COUNTY Harry T. Taliaferro, III, Judge

         PRESENT: All the Justices

          OPINION

          S. BERNARD GOODWYN, JUSTICE.

         In this appeal, we consider the evidence required to submit a question of gross negligence to a jury.

         Background

         This 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.

         On June 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.

         At 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 not (Elijah).

         When 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 save Caleb.

         Elliott 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.

         Elliott 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.

         Following 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 ...


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