Scouting Program is Not a Product

1/4/2005 - In Clarence Hobbs v. Boy Scouts of America, Inc., et al. (Mo. App. W.D. 2004) # 63342, the plaintiff took a novel approach to attempt recovery. The plaintiff attempted to make a product liability case against the Boy Scouts of America, Inc. The theory was that the "Scouting Program" was a "product" under product liability laws. The theory failed.

Clarence Hobbs, the plaintiff, was a former participant in boy scouts who claimed he was sexually molested by Earl Fleer, an assistant scout master. Mr. Hobbs pled that the "Scouting Program" was a "product" pursuant to product liability law and sought recovery under a theory of strict liability for the defective product. Mr. Hobbs also asserted that he was entitled to recovery under a theory of strict liability for failure to warn of an unreasonable risk.

The trial court granted summary judgment.

On appeal, the Missouri Court of Appeals, Western District, affirmed the trial courts findings that the "Scouting Program" was not a "product" under product liability law. The court noted that the defendants relied upon section 19(a) of the Restatement (Third) of Torts: Product Liability which defines a product as "tangible personal property distributed commercially for use or consumption."

The court determined that the "Scouting Program" was a service and not a "product." While the plaintiffs cited statements from scout leaders in other jurisdictions that purportedly testified that scouting was a product and that the Boy Scout organization does not provide a "service," the court determine that these were not judicial authorities and should not be relied upon. The court commented: "These statements fall short of a judicial adjudication that scouting is a product within the meaning of product liability laws."

The court held that the "Scouting Program" was not a product and therefore the theories of strict product liability asserted on behalf of the plaintiff could not support a recovery.