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Kelly v. United States

United States District Court, E.D. North Carolina, Southern Division

September 25, 2014



LOUISE W. FLANAGAN, District Judge.

This matter comes before the court on defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (DE 93). This matter has been fully briefed, and the issues raised are ripe for review. For the following reasons, the court grants defendant's motion.


The court refers to and incorporates the case history provided in previous orders, including its recent order on defendant's motion to dismiss plaintiffs' claims for gross negligence. Kelly v. United States, No. 7:10-CV-172, 2014 WL 4098943 (E.D. N.C. Aug. 18, 2014) ("August 2014 Order"). Pertinent to the instant motion, plaintiffs commenced this action on September 2, 2010, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. ยงยง 2671, et seq., seeking damages in excess of ten million dollars ($10, 000, 000.00) for injuries allegedly suffered by plaintiff Morgan Kelly, daughter of plaintiffs Terry and Pamela Kelly. The court previously issued an order August 11, 2011, granting in part and denying in part plaintiffs' motion to strike, in particular allowing defendant to raise the affirmative defense that plaintiff Pamela Kelly had waived plaintiffs' claims. Kelly v. United States , 809 F.Supp.2d 429, 437-38 (E.D. N.C. 2011) ("August 2011 Order").

On November 25, 2014, defendant filed the instant motion for summary judgment, which also included the motion to dismiss plaintiffs' gross negligence claim. Plaintiffs responded in opposition on February 27, 2014, and defendant replied on March 13, 2014.

Plaintiffs' memorandum in opposition included a motion pursuant to Federal Rule of Civil Procedure 52(d) for additional discovery regarding the use, allocation and disposition of monies received from Navy Junior Reserve Officer Training Corps ("NJROTC") cadets in exchange for the cadets' attendance in the July 2007 orientation visit at issue in this case. The court granted plaintiff's motion on March 31, 2014, and subsequently issued an order on scheduling directing the parties to complete the additional discovery by May 30, 2014. Plaintiffs were given until June 13, 2014, to file a supplemental brief in opposition to the government's motion. However, the deadline passed without such brief being filed.

On August 18, 2014, the court granted defendant's motion to dismiss. The order noted that it did not address the motion for summary judgment on plaintiffs' remaining claims. August 2014 Order, 2014 WL 4098943, at *1, n. 1. This motion comes now before the court.


The facts, viewed in the light most favorable to the nonmoving party, may be summarized as follows:

In July 2007, plaintiff Morgan Kelly, then fifteen (15) years of age, was a cadet in the NJROTC program at her high school. Plaintiff Morgan Kelly's twin sister, Magan Kelly, also was a NJROTC cadet. The NJROTC program included an orientation visit to United States Marine Corps Base Camp Lejeune ("Camp Lejeune").

Prior to the orientation visit, plaintiffs received a "Waiver of Liability and Assumption of Risk Agreement." ("Liability Waiver") (DE 94-3). The Liability Waiver included the following language:

In consideration of the privilege of participating in an organized event in a training area at Camp Lejeune, North Carolina, and further recognizing the voluntary nature of my participation in this event, I, the undersigned person, intending to be legally bound, hereby promise to waive for myself, my guardians, heirs, executor, administrators, legal representatives and any other persons on my behalf, any and all rights and claims for damages, demands, and any other actions whatsoever, including those attributable to simple negligence, which I may have against any of the following persons or entities: the United States of America... which said injuries arise out of my participation in the activities comprising the aforesaid event; as well as any use by me of any Marine Corps Base, Camp Lejeune, North Carolina, or government equipment or facilities in conjunction with and furtherance of such participation by me. I FURTHER VERIFY THAT I HAVE FULL KNOWLEDGE OF THE RISKS ASSOCIATED WITH ATTENDING THIS EVENT. I EXPRESSLY, KNOWINGLY, AND VOLUNTARILY ASSUME THE RISKS INVOLVED IN THE PLANNED ACTIVITIES INCLUDING TRANSPORTATION TO AND FROM THE EVENT, AND AGREE TO HOLD THE UNITED STATES HARMLESS FOR ANY RESULTING INJURY. I understand that this assumption of risk agreement shall remain in effect until notice of cancellation is received by the Commanding General, Marine Corps Base, Camp Lejeune, North Carolina. I understand that, should I decline to execute this agreement, I will not be permitted to attend the organized event.

(DE 94-3 at 1). (See attached as Addendum A hereto.)

Below this language, the form provided lines for the signature and printed name of the minor participant, along with lines for the signature of a parent or guardian, "on behalf of" the minor. Morgan and Magan's mother, plaintiff Pamela Kelly, signed the form, believing that she was signing it for Magan. She left the blanks which required Magan's name for Magan to complete. However, plaintiff Pamela Kelly did not sign a form for her other daughter because plaintiff Morgan Kelly originally planned to attend a sailing trip in Florida at the time of the orientation.

Subsequently, plaintiff Morgan Kelly's sailing trip was cancelled, and she joined the orientation visit. She signed and printed her name onto the Liability Waiver in the spaces that her mother had left for Magan Kelly. The Liability Waiver, in its unredacted format, includes Magan Kelly's social security number, but it is unclear how this number appeared on the form or who wrote it. The Liability Waiver does not otherwise mention Magan Kelly. It is unclear whether a separate form was submitted for Magan Kelly or whether she attended the orientation.

While planning the orientation visit, Operations Specialist Frank Acevedo ("Acevedo") sent a packet of information to plaintiff Morgan Kelly's high school, including a list of training activities and a brief description of an obstacle course challenge known as the "Confidence Course." However, neither plaintiff Pamela Kelly nor plaintiff Terry Kelly received a copy of this information packet prior to the orientation visit, and neither parent otherwise communicated with Acevedo or any other government representative from Camp Lejeune before the orientation visit.

The orientation visit began on July 23, 2007. During the visit, the cadets were allowed to use government facilities at Camp Lejeune at no expense, and were not charged for the instruction they received. Cadets were responsible only for paying for meals eaten at a Camp Lejeune dining facility at a Discount Meal Rate, and for personal purchases made at a Post Exchange.[1]

On July 27, 2007, plaintiff Morgan Kelly, along with the other cadets, completed two obstacle courses prior to undertaking the series of obstacles known as the "Confidence Course." Before the cadets completed the Confidence Course, two Marine instructors from the School of Infantry provided preliminary instructions, the content of which is disputed.[2] The final obstacle of the Confidence Course, called the "Slide for Life, " was a climbing apparatus. Defendant knew that the Slide for Life posed a substantial risk of death or serious bodily injury if it were not successfully negotiated. However, defendant did not assess plaintiff Morgan Kelly's physical capabilities before she climbed the Slide for Life. Nor did defendant provide any safety harnesses, restraints, or other protection systems that would prevent her from falling. While attempting to climb the Slide for Life, plaintiff Morgan Kelly fell and suffered injuries.


A. Standard of ...

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