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Doe v. Boy Scouts of America

United States District Court, D. Idaho

April 17, 2019

JOHN DOES I-XIX, and JOHN ELLIOTT, Plaintiffs,
v.
BOY SCOUTS OF AMERICA, a congressionally chartered corporation authorized to do business in Idaho; CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a foreign corporation sole registered to do business in Idaho; and CORPORATION OF THE PRESIDENT OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS AND SUCCESSORS, a foreign corporation registered to do business in Idaho, Defendants.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill, United States District Judge.

         INTRODUCTION

         The Court has before it plaintiffs' motion to exclude abusers and the police from the verdict form and defendant's motion to exclude Libey witnesses. The motions are fully briefed and at issue. For the reasons explained below, the Court will (1) deny that portion of plaintiffs' motion seeking to exclude the abusers from the verdict form but grant the motion to exclude the police; and (2) deny the motion to exclude Libey witnesses. The Court will address first the motion to exclude the abusers and the police from the verdict form.

         MOTION TO EXCLUDE ABUSERS AND POLICE FROM VERDICT FORM

         Analysis - Motion to Exclude Abusers from Verdict Form

         Plaintiffs ask the Court to exclude from the verdict form any question asking the jury to make a comparative responsibility finding - that is, asking the jury to compare the responsibility of BSA and the Church for the plaintiffs' injuries with that of the men who abused them. The three Idaho statutes that govern the doctrine of comparative responsibility are set forth below:

         Idaho Code § 6-801

Contributory negligence or comparative responsibility shall not bar recovery in an action by any person or his legal representative to recover damages for negligence, gross negligence or comparative responsibility resulting in death or in injury to person or property, if such negligence or comparative responsibility was not as great as the negligence, gross negligence or comparative responsibility of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence or comparative responsibility attributable to the person recovering. Nothing contained herein shall create any new legal theory, cause of action, or legal defense.

         Idaho Code § 6-802:

The court may, and when requested by any party shall, direct the jury to find separate special verdicts determining the amount of damages and the percentage of negligence or comparative responsibility attributable to each party; and the court shall then reduce the amount of such damages in proportion to the amount of negligence or comparative responsibility attributable to the person recovering. Nothing contained herein shall create any new legal theory, cause of action, or legal defense.

         Idaho Code § 6-803(3), (4) & (5):

(3) The common law doctrine of joint and several liability is hereby limited to causes of action listed in subsection (5) of this section. In any action in which the trier of fact attributes the percentage of negligence or comparative responsibility to persons listed on a special verdict, the court shall enter a separate judgment against each party whose negligence or comparative responsibility exceeds the negligence or comparative responsibility attributed to the person recovering. The negligence or comparative responsibility of each such party is to be compared individually to the negligence or comparative responsibility of the person recovering. Judgment against each such party shall be entered in an amount equal to each party's proportionate share of the total damages awarded.
(4) As used herein, “joint tortfeasor” means one (1) of two (2) or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.
(5) A party shall be jointly and severally liable for the fault of another person or entity or for payment of the proportionate share of another party where they were acting in concert or when a person was acting as an agent or servant of another party. As used in this section, “acting in concert” means pursuing a common plan or ...

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