Kelly v. United States
809 F. Supp. 2d 429
E.D.N.C.2011Background
- FTCA suit for Morgan Kelly (minor) injuries at Camp Lejeune; parents Pamela and Terry Kelly join as plaintiffs.
- Waiver signed July 20, 2007 by Morgan and her mother, drafted by Marines, to enter Camp Lejeune.
- Morgan injured on July 25, 2007 during NJROTC confidence course training (Slide for Life).
- Government answered with several affirmative defenses; motion to strike raised on May 15, 2011.
- Court scheduled written discovery, stayed further discovery pending Rule 12 resolution, and denied hearing on the motion.
- Plaintiffs seek damages exceeding $10 million.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Fourth affirmative defense (Feres doctrine) is valid to strike | Morgan not in military; Feres inapplicable | Defenses premised on Feres; later abandoned; may be invalid | Stricken as to Feres defense |
| Enforceability of Morgan Kelly's waiver under North Carolina law | Minor waiver invalid; minor lacks contracting capacity | Waiver may be enforceable in non-commercial, school/community context | Seventh defense as to Morgan's waiver stricken; not clearly valid |
| Enforceability of a parental waiver on behalf of a minor | Parent waiver should be invalid or limited | NC law may enforce parent waivers in school/community contexts | Seventh defense remains viable as to mother's waiver; not struck in full |
Key Cases Cited
- Sell v. Hotchkiss, 264 N.C. 185, 141 S.E.2d 259 (N.C. 1965) (parent cannot bind infant to settlement without court approval)
- Gonzalez v. City of Coral Gables, 871 So. 2d 1067 (Fla. Dist. Ct. App. 2004) (parental waiver enforceable in school/community activity context)
- Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 696 N.E.2d 201 (Ohio 1998) (waiver enforceable to permit recreation activities benefiting public good)
- Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 274 Cal. Rptr. 647 (Cal. App. 1990) (enforceability in school-sponsored activities)
- Kirton v. Fields, 997 So. 2d 349 (Fla. 2003) (for-profit activity generally not enforceable; emphasis on public policy)
- Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 199 Ill. Dec. 572, 634 N.E.2d 411 (Ill. App. Ct. 1994) (context of commercial activity the waiver is often unenforceable)