Contraband at Cadet Activities

[Ron1319]

So now you're saying that if I'm 19 years old and you've taken my keys and I want to leave that you have the right to detain me?  I'm pretty sure that's kidnapping.  Now the problem is that I'm 19 and I generally want to follow orders.  I at this point could call the police and they would tell you that you have to give me my keys, but you're already abusing your power and I'm now some form of intimidated.  You've now scared me away from calling the police and you're holding me against my will.  How would *that* look in court?  How would that look sitting in front of the wing commander?  We have a problem if those two answers are different.

Remember we're not talking about a 13 year old or even a 16 year old.  We're talking about a 19 year old with his own apartment, job and car. 

[Ron1319]

Which does bring up the question -- why aren't 18-21 year old cadets formally in a different classification?  I'm almost positive that with the cadet protection requirement and common sense that they have to fall under the same insurance as seniors and not as the 12-17 year olds. 

Note that I lived in the dorms on campus at 17 and started interning at 18.  At the point at which someone no longer lives with their parents, they're pretty much responsible for their own decisions. 

Please look at the thread and consider why so many cadets leave CAP when they turn 18.  I have employees that are 18 and I have cadets that are 18.  I treat both like responsible adults.  If they're not and they're my employees, I fire them.  I'd essentially would do the same with the cadets, but fortunately they're all fantastic and will make great Spaatz cadets some day.

[a2capt]

Perhaps the topic of Cadets 18 and over and POVs is better served separately, 

http://captalk.net/index.php?topic=11945.msg218790#msg218790

So those who have more fun contraband stories to share .. can

[Ned]

So now you're saying that if I'm 19 years old and you've taken my keys and I want to leave that you have the right to detain me?

No, that's the exact opposite of what I said.

I said:

As you suggested in your earlier post, CAP has no inherent authority to forcibly detain someone who has reached the local age of majority (usually - but not always -18).  Any adult who wants to leave an activity can simply sign out and go.  And can certainly do so even at 0300.

See?  I never said you could be detained against your will as an adult cadet.

I'm pretty sure that's kidnapping. 

Nope.  Kidnapping requires that I move you some significant distance against your will.  You're probably thinking of "false imprisonment."  And this isn't that either.

Now the problem is that I'm 19 and I generally want to follow orders.  I at this point could call the police and they would tell you that you have to give me my keys, but you're already abusing your power and I'm now some form of intimidated.  You've now scared me away from calling the police and you're holding me against my will.  How would *that* look in court? 

That would look exactly like if you called the police at 0300 and told them that the bank "stole your money" because they won't send somebody over the the branch to open it up in the middle of the night to let you make a withdrawal.

IOW, not very compelling for the cops.  Nor is it a crime of any sort.  You want to leave, leave.  Walk out the gate.  Call a cab, grab a space-A hop, whatever.  If you want your keys, you're gonna have to wait until business hours tomorrow and sign out of encampment like everyone else.  We're probably going to make sure you have returned all of the government and CAP property you have signed for; like radios, linen, dorm keys, etc.  I'll be happy to return your keys then.  I really have no interest in keeping your car.  If you left without it, it would actually be a fairly large pain-in-the-butt for me to clear post for the activity.

Remember we're not talking about a 13 year old or even a 16 year old.  We're talking about a 19 year old with his own apartment, job and car.

Yeah, I got that part.  Did you get the part where I said you could leave at any time?

[Ned]

Which does bring up the question -- why aren't 18-21 year old cadets formally in a different classification?  I'm almost positive that with the cadet protection requirement and common sense that they have to fall under the same insurance as seniors and not as the 12-17 year olds. 

What insurance are you talking about?  We don't have any insurance that will pay for losses incurred if one member abuses another, regardless of the ages of the participants.

We do require 18 year old cadets to take CPPT (in February they can do that at age 17), and adult cadets have different requirements for medical permissions, etc, based on their majority.

But as I'm sure you would agree, the concepts of "adulthood" and "cadethood" are simply unrelated.  Apples and oranges.  A "cadet" by definition is simply a military student, usually training to be an officer.  An "adult" is simply someone who has obtained the local age of majority, usually (but not always) 18.  Uncle Sam has cadets ranging in age from roughly 14 to nearly 30 years of age. 

Note that I lived in the dorms on campus at 17 and started interning at 18.  At the point at which someone no longer lives with their parents, they're pretty much responsible for their own decisions. 

Please look at the thread and consider why so many cadets leave CAP when they turn 18.

Actually, the overwhelming number of cadets leave CAP well before their 18th birthday.  I don't have my figures handy, but IIRC correctly the number of 18+ cadets is a small proportion of our program, less than 10%.  I think we do some of our best work with our 18+ troops, but they are a relatively small minority.

[ol'fido]

Also, the number of 17+ year old cadets that show up as basics at an encampment are relatively small. The usual 17,18,19, etc year old cadet is showing up as a staff member and has experienced or observed the common practices at encampments. They are not going into this blind. They are usually well aware that car keys are collected at the beginning of the activity and returned on the last day. Having attended or worked at nearly 20 encampments over the years, I have never known this to problem. We have had cadets leave early either for disciplinary reasons or because of family emergencies. They are usually outprocessed and released from the activity with little problem or fanfare.

[Ron1319]

I think I misread something pertaining to the post on detaining cadets.  I thought I'd read someone saying that we shouldn't let them leave if we thought they didn't have enough sleep.  Your post, Ned, was very clear that we were trying to make other arrangements.  I agree completely that we need to ensure down time and be sure we don't schedule them to get 3 hours sleep then drive away.  I have a specific example in mind and I'm still hoping I can get the first person version in the thread.

Actually, the overwhelming number of cadets leave CAP well before their 18th birthday.  I don't have my figures handy, but IIRC correctly the number of 18+ cadets is a small proportion of our program, less than 10%.  I think we do some of our best work with our 18+ troops, but they are a relatively small minority.

I would agree that WE do our best with the 18+ cadets, but the attitude that cadets should all be treated the same in this and other threads is probably WHY.  We should look further there, however I agree we've strayed from the contraband topic.   They certainly don't have to be 18 to no longer want to be treated like 12 year olds. 

[Ron1319]

And I would assume that CAP has some kind of liability insurance?

[Ned]

And I would assume that CAP has some kind of liability insurance?

Of course we do.  But our policy doesn't cover every possible source of liability; there are some exemptions.

For instance, we do not have any medical malpractice ('errors and omissions") insurance because it is too darn expensive.  As in hundreds of thousands of dollars a year.  That's one of the reasons that CAP HSOs cannot give routine medical treatment.

And we are not covered for losses related to abuse of one member by another.  Because such insurance is not available at any price.  In practice, that means we are "self-insured" for this hazard. 

And oddly enough, we don't have any insurance for damages committed by a cadet who is driving a vehicle.  I suspect that that would be prohibitively expensive as well.  Insurance companies' experience has been that insuring young drivers is a high risk endeavor and either refuse to cover such activity or simply charge outrageous premiums.

[Ron1319]

Cool, so now we're getting somewhere useful

Would a cadet signing in and out of a CAP activity at 19 years old have any weight in court?  In other words, 19 year old cadet leaves the hotel where wing conference is at 3am for any reason and gets in an accident.  He was "signed in" but they're an adult, right?  How could I or CAP be liable for them?

If there is a legal issue there then I would consider you an expert and would really like to understand that.

[Ned]

Would a cadet signing in and out of a CAP activity at 19 years old have any weight in court?  In other words, 19 year old cadet leaves the hotel where wing conference is at 3am for any reason and gets in an accident.  He was "signed in" but they're an adult, right?  How could I or CAP be liable for them?

This is one of those instances where the law is easy, but the facts will be tricky.

As a general rule, CAP is not liable for what members do when not acting on behalf of CAP, unless CAP somehow negligently contributed to the act.

The reverse is also true; CAP is generaly liable for what members do when acting in the course and scope of their CAP duties.

So, IF our hypothetical 19 year-old cadet has left the activity with no intent on returning (and thus is acting on their own and not under the control of CAP nor as part of their CAP duties), then generally CAP is not going to be liable.

Predictably, what is going to happen is that the other party is going to try to prove that the cadet WAS on CAP duty or under the control of CAP at the time in order to show that we are liable.  Because they are going after the "deep pocket" of CAP, Inc, in addition to the rather shallow pockets of the typical 19 year-old.

Questions are going to revolve around whether or not the troop was signed in or not.  How do you prove that?  What was the troop doing?  (Heading off to an all night WallMart to get some supplies for a seminar tomorow, getting some food because CAP made her/him work during the dinner hour, headed home with no thought of returning?  All have different implications.)

Even if the troop was acting outside the course and scope of their CAP duties, CAP may have liability if we negligently contributed to the accident.  Was the cadet allowed to drink alcohol by a senior member who looked the other way?  Did we fail to provided adequate rest time in a way that virtually ensured that the cadet would be sleep-deprived when she/he left at 0300?  Did we fail to exercise adequate supervision to ensure that the cadet knew that he/she was forbidden to leave the conference?  Did we know that this particular cadet disobeyed orders in similar situations in the past and failed to take corrective action?  Did we even know the troop was gone?

So to answer your question directly - "How could I or CAP be liable?", the answer is "it depends."   

Ned Lee
Former CAP Legal Officer

[Ron1319]

So how about a specific example extrapolated.  Can I let a 19 year old cadet leave a daytime training activity (10a-6p) to go get lunch?  Does being "signed in" have any legal implication?  I always have assumed it's just for participation letters and wouldn't mean anything to a judge.  How about getting food for everyone?  How about stopping to get supplies at Walmart?  Does it change if I'm in the passenger seat.

Now the real question --  is it any different than if I went to go do the same thing and had an accident?  If not, then it doesn't really matter, does it?

And what's this about cadets drinking?  Cadets don't drink?!  :angel: 

[Ned]

Can I let a 19 year old cadet leave a daytime training activity (10a-6p) to go get lunch?

Maybe.  Assuming you are the AD / commander, you are responsible for supervising cadets at all times.  There is no rule that says you have to have line of sight on every cadet at every moment.  Reasonable supervision will vary according to the activity in question and the cadet's age and experience.

Thiink of it this way.  Some high school students are 18.  Are the rules any different for them at your local high school?  In my exerience, generally not.  I've never heard of a high school where only the 18 year-olds can leave for lunch.  I've heard of closed campuses where no one can leace for lunch (even the 18 year olds), and I have heard of schools where seniors can leave, but not juniors or below.

High school students are generally treated as high school students, even if some of them are 18.  The 18 year olds still need to be supervised on field trips and after-school activities.  A staff member always has to be present, and 18 year old high school students do not get to be the supervisors of the under 18 students.

Does being "signed in" have any legal implication? 

Depends on the question being asked.  If the question is whether the member is acting in the course and scope of their CAP duties, it could well be very important.  That's one reason why we make such a point of knowing who is present at each activity.

How about getting food for everyone?  How about stopping to get supplies at Walmart?

If someone is performing CAP duties, then CAP may be liable for their actions.  It will always be a question of fact as to whether "getting lunch" or "supplies" is in the course and scope of a member's duties.

Does it change if I'm in the passenger seat.

It might.  If you are directly supervising a cadet who is driving while performing CAP duties and the cadet collides with something, then that could get very expensive, very quickly because CAP does not have insurance that covers cadets who are driving vehciles.  Which is why cadets cannot drive CAP vehicles.  As the immediate supervisor, any negligence on your part (like letting a cadet drive on CAP duties) could result in corporate and personal liability.

Now the real question --  is it any different than if I went to go do the same thing and had an accident?  If not, then it doesn't really matter, does it?

I think I lost you here.  If you have a vehicle accident in your POV, you and your insurance company while normally figure out who owes who money. 

The difference between you and a cadet is like the difference between a high school student and a teacher.

Bottom line, it is normally a very bad idea to allow cadets to drive at or during CAP activities.

[Ron1319]

Now the real question --  is it any different than if I went to go do the same thing and had an accident?  If not, then it doesn't really matter, does it?

I think I lost you here.  If you have a vehicle accident in your POV, you and your insurance company while normally figure out who owes who money. 

The difference between you and a cadet is like the difference between a high school student and a teacher.

Bottom line, it is normally a very bad idea to allow cadets to drive at or during CAP activities.

I would think that legally (in court) we would both be adults driving a car during a CAP activity.  Why would the person suing have any different of a case if it was me or a 19 year old cadet?  Would a judge (presumably knowing nothing of CAP or caring about the cadet program at all) see any difference about there being one adult driving a car or another?

I don't see how school law applies to CAP, a volunteer corporate organization.  I'd think the question would have the same answer as "if I am in the passenger seat and one of my employees is driving and we're going to get supplies for my business, am I liable for their accident?"  I think the answer is no, but I went to engineering school, now law school

[Ned]

I'd think the question would have the same answer as "if I am in the passenger seat and one of my employees is driving and we're going to get supplies for my business, am I liable for their accident?"  I think the answer is no, but I went to engineering school, now law school

Ahh, I see the disconnect.

I really hate to use Latin here, but the answer you are looking for is the doctrine of Respondeat Superior , which says that, yes, generally bosses and corporations are indeed liable for the acts of their employees, when those acts are committed in the course and scope of their employment.

(And the doctrine applies withing volunteer organizations as well, subject to a few defenses.)

Does that make sense?

[Ron1319]

OK.  But I'm no more in charge of CAP than the cadet, right?  In other words, I own my business but not CAP. 

That again brings me back to the question about whether there's any legal difference between me and the cadet in terms of one of us getting in an accident during an activity.  It seems we're woefully lacking when it comes to insurance.  I wouldn't expect it for minors but I would expect that from an insurance standpoint they would consider adults equally, but I guess not? 

I actually did the thing that people who are doing ES training kind of laugh about from time to time as a thing that just would never happen.  As a cadet, I was the GTL and drove my own vehicle on a mission with a senior member as a GTM.  It was just the two of us in my car.  I think my deputy commander of cadets who was the MC (now IC) sent us out more because he knew he could get us out quickly and perhaps a bit because it was novel than anything else.  I'd trust me at 20 as a GTL with a LOT of mission experience.  I'm not seeing how CAP would be more liable than if I did the same thing, now.

Again, from my perspective we're not bickering, I feel that I really need to know these answers.  Not exactly things that are covered in cadet protection training.

[arajca]

I think your best bet would be to schedule some time with YOUR wing legal officer to answer these questions. Some of the answers will depend on the particular laws in your state.

[Ron1319]

Ned's in California, and I'd imagine if he doesn't know he'll say so, or help find the answers.  Further, it seems to me like everyone should want to know the answers to these questions since I can't be the only one with these questions.  The regs don't have the answers.  I don't know why the regs aren't more clear about "If a cadet leaves a CAP activity they are no longer performing CAP duties and CAP is no longer responsible for their actions," unless it wouldn't be viable?

Ron

[Ned]

That again brings me back to the question about whether there's any legal difference between me and the cadet in terms of one of us getting in an accident during an activity.

Yes.  There are several important differences.  Of course, there are always going to be problems after an accident, and many would apply equally to a senior and a cadet, but some are unique to cadet status.

Statistically, the great majority of accidents are minor fender-benders without injury.  I suspect that in such situations, from the perspective of the non-member driver/owner, there is not going to be much difference in the outcome depending on the membership status of the driver.  (Within CAP, there are almost always consequences.)  If the negligent actions of a CAP member caused damages to a third party, we are generally going to be liable for the damages.

The real problems begin to arise in collisions that result in severe injuries or extensive property damage.  That is when lawyers typically get involved and begin to look for every possible source of compensation for their clients.  And lawyers will look for the deepest pockets, which in the context of our discussion is going to be CAP, Inc.  A multimillion dollar quasi-governmental corporation with hundreds of million dollars of assets.

And every lawyer knows that larger settlements occur in cases where the injuries look very bad requiring lots of future care, and the negligence of the other side (CAP) looks as bad as possible.

Like having inexperienced drivers (cadets, by definition) who are supposed to be closely supervised (again, cadets by definition) engaged in activities where innocent people can be hurt or killed (driving to lunch on a highway).  It is even worse if it looks like we are violating specific rules put in place to promote safety.  ("Isn't it true that all cadets are required by your own regulations to turn in their keys for the duration of your so-called encampment?")

If cadets are supposed to be supervised, and an unsupervised cadet does something that causes damages to somebody else, it is essentially negligence per se on our part, even if the cadet's actions were arguably not negligent in the first place.

Although I know you don't like it, the school analogy is apt.  If the school district let an 18 year-old high school student drive a district vehicle and it was involved in a accident, it is a significantly different situation than when the custodian does so. 

Again, from my perspective we're not bickering, I feel that I really need to know these answers.  Not exactly things that are covered in cadet protection training.

To be fair, all you really need to know is that it is a bad idea to let cadets drive during a CAP activity because of liability reasons.  A full understanding of the legal background couldn't hurt, and it certainly isn't classified information, but there is already more stuff to teach than we really have time for in Level 1, SLS, CLC, etc. 

And the message "don't let cadets drive at activities" seems well distributed and accepted by CP officers and commanders.  I don't see this issue very often at the national level.

But I have been anxious to expand cadet protection training beyond the hazards of sexual abuse and hazing, so let me add this to the list.

[Ron1319]

How about the opposite approach?  How about creating an "adult cadet" category for cadets over the age of 18 with different supervisory requirements?  State officially that cadets over the age of 18 do not have the same requirement for supervision that minor cadets do, that they do not have to turn in their keys at encampments and NSCA's and that they are no longer participating in the CAP activity when they leave the event.  Clearly state that they are not able to supervise minor cadets the same as a senior officer, but that they themselves are adults and under their own care as their status as adults would warrant.  Wouldn't that alleviate much of the legal issue and create less liability for CAP, Inc?  It seems like it's the way it is because that's the way it's always been, and that our own rules and over-control of adult cadets is causing much of the problem.

So we're clear to anyone who hasn't read my other posts, I believe that 70%+ of what I got out of CAP and  as a cadet came after the age of 18.  To those who say that we should not have cadets over the age of 18, I gasp every time I read that.  My brain kind of shudders a bit.  Creating a different category for them, however, would also perhaps open up other 18+ opportunities that would potentially help with retention after 18.  I can't think of many examples at the moment, but I'm sure we could come up with some.  Heck, give them a little adult-badge.

If there's nothing legally preventing it, it helps with retention, and alleviates liability, I'd think the national board would jump on it.  The only counterarguments come from cadets abusing it somehow, but I can't think of downsides that outweigh the potential upsides.

I'm on board with not letting cadets drive at CAP activities.  I'll be extremely careful about it in the future.  Car accidents are particularly a sensitive subject for me as I've been recovering for well over a year now from a bad accident where I was stopped and a Civic-driver who wasn't paying attention forgot where the brake pedal was.  A typical surface-street speed on a major road here in California is 50 mph with a posted 45 mph speed limit, for those who think of non-highway accidents happening at <25 mph impact speed.  Getting hit by someone doing 50 mph hurts for over a year, I've learned.

Ron