UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-2240



JEFFREY WILLIAM KUYKENDALL,

                                               Plaintiff - Appellant,

          versus


YOUNG LIFE,

                                                Defendant - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.  Samuel G. Wilson, District
Judge. (7:05-cv-00581-SGW)


Submitted:    October 15, 2007              Decided:   January 9, 2008


Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David D. Walker, P.C., Salem, Virginia; William B. Taylor, IV,
Andrew K. Macfarlane, Noel P. McDonell, MACFARLANE, FERGUSON &
MCMULLEN, Tampa, Florida, for Appellant. Frank K. Friedman, Daniel
S. Brown, Joshua F. P. Long, WOODS ROGERS, P.L.C., Roanoke,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Jeffrey Kuykendall appeals the district court’s grant of

summary judgment in favor of Young Life on his claims of gross

negligence and willful and wanton negligence.                Kuykendall brought

this action seeking damages for injuries sustained when he fell

more than thirty feet from a ropes course operated by Young Life.

He contends that the district court erroneously grounded its ruling

in Virginia’s charitable immunity doctrine.                  Kuykendall further

argues that his fall resulted from several negligent acts and

omissions     by   Young   Life    that       cumulatively    amount   to   gross

negligence.    Concluding that Kuykendall failed to present evidence

from which a reasonable jury could find that Young Life’s conduct

was either grossly negligent or wilfully and wantonly negligent, we

affirm.

                                       I.

     Because this is an appeal from the district court’s grant of

summary judgment in favor of Young Life, we review the facts in the

light most favorable to Kuykendall. See Anderson v. Liberty Lobby,

Inc., 

, 255 (1986) (noting that all evidence must be

construed in the light most favorable to the party opposing summary

judgment).

                                  A. Young Life

     Young Life is a national “non-denominational, Christian, non-

profit organization that is committed to introducing adolescents to


                                          2
Jesus Christ and helping them grow in their faith.”            (J.A. at 140.)

Young Life owns and operates numerous camps, including a facility

at Rockbridge Alum Springs, Virginia (hereinafter “Rockbridge”).

Campers arrive at camp with their leaders, with whom they share a

cabin.    The camp program at Rockbridge includes religious learning

and instruction, as well as participation in an outdoor “challenge

course” that includes a high ropes course.            (J.A. at 310.)

     The challenge course represents a central part of the camp

experience.     Young Life intends the course to further various

objectives, including helping campers accomplish something they

might not have thought they could do, enabling campers to grow

closer to each other and to their leaders, and “partner[ing] with

the total camp program by demonstrating a part of the ‘abundant

life’ that a relationship with Christ offers.”             (J.A. at 187.)    As

part of its efforts to foster the relationship between campers and

their    leaders,   Young   Life   asks   two   of   the   cabin   leaders   to

volunteer to take a station along the ropes course; at their

station, the leader-volunteers help campers transfer between the

different elements that comprise the course.

 B. Kuykendall’s Experience with Young Life & His Fall from the
                          Ropes Course

     Kuykendall began volunteering for Young Life as a college

student and, as a result, became familiar with ropes courses at

camps other than Rockbridge.          In addition to completing ropes

courses on various occasions, Kuykendall once spent five days

                                      3
helping to prepare the course at Young Life’s camp in Windy Gap,

North Carolina for the summer season.        This preparation required

him to, among other things, negotiate the entire ropes course,

check the tightness of bolts, and trim branches that had grown on

the course.     Kuykendall also participated in a weekend training

program, through which he became certified to act as a “Weekend

Wrangler” at the Windy Gap course.      He “wrangled” there on a number

of weekends beginning in September 2002 and ending in April or May

of 2003.

     In July 2003, Kuykendall brought a Young Life group from

Mooresville High School to Rockbridge.          His group set out to

complete the ropes course on the Fourth of July.         The facilitator

on duty, Bernard Newton, requested that two of the group leaders

volunteer to assist the campers in transferring between elements,

and Kuykendall stepped forward to volunteer.          It does not appear

that Newton was aware of or inquired about Kuykendall’s previous

ropes course experience.

     Newton   provided   both   volunteers   with   safety   instructions

explaining    belay   transfer    techniques    and    other    pertinent

information. Part of Newton’s safety talk involved a demonstration

of Rockbridge’s policy of “clipping to the red.”        This instruction

was necessary because certain sections of cable along the course --

namely the “tail end” or “tag end” of the belay cable -- were not

load-bearing.    Accordingly, Young Life had marked each end of the


                                    4
weight-bearing    cables   with   markers   encircled   with    red   tape.

Participants were to attach their carabiners to the weight-bearing

cable marked in red so that they would be securely tethered to the

course.   Newton’s practice was to “tell everybody to clip between

the red.”    (J.A. at 310.)        He would always make clear that

participants must hook in between the red markers at either end of

the load-bearing cable because that portion of the cable was the

safest.   In his own words, Newton would consistently “make sure

[he] was making it clear to hook in between the reds” and “was

always very, very clear about that.”        (J.A. at 339.)     Then, using

the cable at the first platform of the ropes course where it “was

easy for [participants] to see the red marks,” he would demonstrate

clipping to the proper portion of the cable. (J.A. at 310.)

     Newton’s practice was consistent with the procedure taught by

Rockbridge’s challenge course manager, Ken Hewett.             Hewett too

would remind campers to “clip to the red” as “a nice little phrase

[participants] c[ould] remember” and would demonstrate clipping

between the red markers (i.e. beyond the first red taped marker).

(J.A. at 493.)1


     1
      In his deposition, Kuykendall was asked whether he remembered
being instructed to clip to the red. He responded: “That sounds
familiar, I don’t know when in the instruction that was told, but
clip to the red sounds familiar.”       (J.A. at 285.)     Overall,
Kuykendall indicated that his memory of the safety instructions was
hazy; he could not remember, for example, whether a man or a woman
had instructed him. Subsequently, Kuykendall submitted with his
response to Young Life’s summary judgment motion an affidavit
stating that he had not been made aware that Rockbridge

                                    5
     Contrary to Young Life’s policy, however, Newton did not

accompany Kuykendall to the station where he would be helping the

campers do “belay transfers” to see that Kuykendall clipped in

properly.2   Young Life’s procedure was for the facilitator to take

the volunteer leader to their station and tell them where to stand

and where to clip to the cable.       Newton, however, watched as

Kuykendall proceeded through the beginning of the course and

directed him to his station from the ground before sending any

campers onto the course. Newton’s general practice was to have one

of the summer staff help the volunteer do the transfer to their

station because his line of sight from his position on the ground

would not have been as good.

     When Kuykendall arrived at his station, he saw the red marker

at the end of the load-bearing cable closest to him but did not


facilitators demonstrated to clip between the red markers. This
affidavit contradicted Kuykendall’s deposition testimony that he
remembered little of the instructions given him, but clip to the
red sounded familiar. Accordingly, the affidavit cannot create a
genuine issue of material fact as to the instructions Kuykendall
received. See Rohrbough v. Wyeth Laboratories, Inc., 

,
975 (4th Cir. 1990) (“If a party who has been examined at length on
deposition could raise an issue of fact simply by submitting an
affidavit contradicting his own prior testimony, this would greatly
diminish the utility of summary judgment as a procedure for
screening out sham issues of fact.” (internal quotation marks
omitted)).
     2
      The ropes course at Rockbridge consisted of seven “elements.”
Transitioning from one element to the next required participants to
do a belay transfer to move from one cable around a tree to the
next. Each participant has two carabiners, which he moves one at
a time from one cable to the other, so that he remains attached to
something at all times.

                                 6
look any farther toward the other end to see where the other marker

was located.   Between that red marker and the tree at his station,

Kuykendall saw two cables side by side. Kuykendall knew that there

were cables or cable parts that were not weight-bearing on the

Rockbridge course, and he knew that they were clearly labeled.

Although he had seen tag ends at Windy Gap and knew that they “went

up next to the rest of the cable,” Kuykendall had never been

instructed not to hook onto them.    (J.A. at 256.)   And it did not

occur to him that one of the parallel cables at his station had to

be the “tail end” or “tag end” of the excess cable.3

     Kuykendall clipped both carabiners to one of the parallel

sections of cable without “think[ing] about it.”      (J.A. at 291.)

Initially, he was able to successfully assist campers with their

belay transfers.   When Kuykendall leaned back in his harness to

demonstrate its safety to a timid camper, however, the cable to

which he had attached his carabiners gave way, and he fell at least

thirty feet to the ground.    As a result of the fall, Kuykendall

sustained serious injuries, necessitating surgery on his back and


     3
      As explained below, one of the parallel cables was attached
to the other by means of a lightweight piece of hardware called a
“serving sleeve.” During the course of this litigation, Hewett
identified a photograph of the serving sleeve at the time of
Kuykendall’s accident; the serving sleeve had red tape around it.
Kuykendall did not mention noticing the serving sleeve in his
deposition.   In his subsequently submitted affidavit, however,
Kuykendall stated that the cable to which he attached his
carabiners “appeared secured by a red sleeve and marked with red
tape,” leading him to believe that it was weight bearing. (J.A. at
618.)

                                 7
wrists,    as   well    as   extensive   rehabilitation.             It   was    later

determined that the fall occurred because Kuykendall had clipped

his carabiners to a section of the cable that was not weight-

bearing.

    C. Construction and Design of the Rockbridge Ropes Course

     An    outside      professional,        Randy   Smith      of   Inter      Quest,

constructed the ropes course at Rockbridge in March of 2000.                       The

construction     followed     standards       set    by   the    Association       for

Challenge Course Technology (“ACCT”), which “detail common and

recommended practices in challenge course construction, inspection

and operation.”        (J.A. at 102.)

     Strand vises4 represent the primary means of securing the

weight-bearing belay cables that run between trees.                       The strand

vise is mechanically secured to the tree by a fastener that runs

through a hole drilled in the tree.            Excess cable runs through the

strand vise and back around the tree, where it is fastened back to

the belay cable by cable clamps located further from the tree than

the strand vise.       This fastening forms a back-up in case the strand

vise fails.

     Some of the excess cable necessarily extends beyond the cable

clamps.    The excess cable extending beyond the clamps (the “tail

end” or “tag end” of the cable) is secured at its tip to the belay

cable by means of a serving sleeve, a lightweight piece of hardware


     4
      A strand vise is a metal grip connected to a bolt.

                                         8
that is intended only to keep the tail end of the excess cable snug

against the main cable, not to bear weight.          (J.A. at 177.)

Although construction standards specify that the excess cable

extending beyond the cable clamps should be a minimum of two

inches, there is no maximum length required or recommended.5        A

survey of the ropes course revealed lengths of excess cable between

four and sixteen inches.     The excess cable at Kuykendall’s station

at the time of his fall was fifteen inches long.

       In an e-mail describing the results of an investigation into

Kuykendall’s accident, Robbie Robertson, Rockbridge’s Property

Manager, discussed the excess cable in detail.     Robertson’s e-mail

explained that the excess cable between the clamps and the serving

sleeve is meant to be parallel and snug, so that a carabiner will

slide over both cables as a participant moves through the course.

If the length of excess cable beyond the clamps is less than eight

inches, the rigidity of the cables will prevent a participant from

mistakenly inserting a carabiner over just one of the two parallel

cables.      With longer lengths of excess cable, however, there is

enough slack between the cables for a participant to clip to only

one.       According to Robertson’s e-mail, “[i]f this happens, there

is a 50/50 chance that the carabineer [sic] will hook over the


       5
      Young Life provided expert deposition testimony that the two
inch minimum is not actually a standard of the Association for
Challenge   Course   Technology   (“ACCT”),   but  is   rather   a
manufacturer’s standard contained in an appendix to the ACCT
standards.

                                    9
excess cable run which is secured at one end only b[y] the serving

sleeve, which is not designed to bear weight.”                  (J.A. at 177.)

This observation from the investigation into Kuykendall’s fall led

Rockbridge to examine every place along the course where it might

be   possible    to   hook   a   carabiner   solely   to   an   excess    cable.

Anywhere the length of excess cable beyond the cable clamps was

more than eight inches, Rockbridge installed an additional serving

sleeve at the midpoint, making it impossible to insert a carabiner

over only one cable.         Robertson recommended to other Young Life

camps that they do the same because in-house discussion of possible

remedies had revealed that some locations wrapped the cables in

tape to keep them snugly together -- a remedy Rockbridge’s former

inspector indicated that he would not accept because the tape would

prevent visual inspection of the cable and trap moisture, which

could cause the cable to fail.

      After     Kuykendall’s     accident,    Young   Life      added    to   its

construction standards a requirement that the tag end of the excess

table be no more than four inches in length.6




      6
      In response to allegations from Kuykendall that the e-mail
showed knowledge of a dangerous condition, Robinson submitted a
declaration stating that he had not recognized any potential danger
on the course at the time of the accident and was simply
recommending that any camps that did not already use additional
serving sleeves to keep the cables snug do so.

                                       10
  D. Maintenance and Inspection of the Rockbridge Ropes Course

     In maintaining the Rockbridge ropes course, Young Life relied

on both outside professionals and its own staff.                   A representative

from Adventure Experiences, Inc., a full service challenge course

construction company and ACCT professional vendor member, performed

annual inspections.       Young Life passed the 2003 annual inspection

in March, three months before Kuykendall’s accident.                   Young Life’s

staff also conducted monthly inspections of the course during the

school year and daily visual inspections during the summer camp

season.      Hewett,    who       was   a   certified      Adventure      Experiences

inspector,    conducted       a    monthly       inspection   on    May    20,    2003.

Thereafter, facilitators and summer staff performed the daily

visual inspections.       In addition to conducting visual inspections

of the ropes course on the days that he was at Rockbridge, Newton

regularly    reminded    the      summer     staff    to   look    around    as    they

traversed the course to ensure that nothing looked out of place or

potentially problematic.

     Before Kuykendall’s fall, there had been no major injuries on

the ropes course.      A few incidents had resulted in injuries such as

a sprained ankle or a cut requiring a few stitches that were

sufficiently minor to be treated on-site. None of these incidents,

however, involved a fall from the course.7


     7
      In addition, a camper was once injured on a separate portion
of the challenge course called the “Big Swing”; another fell off a
cargo net suspended four to five feet off the ground during an

                                            11
     There was no evidence that anyone at Rockbridge was aware of

the gap between the cables before Kuykendall’s accident or realized

that he might unwittingly clip to the tail end of the excess cable.

Newton did not remember looking for a gap between the tail end of

the excess cable and the main cable as being a specific part of his

training.   Nevertheless, he believes that if he had noticed such a

gap, he would have reported it to Hewett.           Although Hewett was

aware that excessive space between the two cables could pose a

problem, that issue was not “on [his] radar” before the accident

occurred.   Still, Hewett felt confident that if he had seen slack

in the excess cable creating excessive space between the tail end

and the main cable, he would have done something about it.

                  E. Training of the Rockbridge Staff

     Both Newton, the facilitator on duty when Kuykendall fell from

the course, and Hewett, the challenge course manager (who was not

at Rockbridge on the day of the accident), had undergone ropes

course training. Newton completed 30 hours of training in March of

2003 from Adventure Experiences. Upon completion of this training,

he passed a test with written and practical components and received

a certification.      Hewett had extensive training and experience,

having   worked    for   Adventure   Experiences   for   seven   years   as

wilderness director of their Colorado camp prior to his employment

with Rockbridge.     As a refresher course, Hewett attended the March


activity that was not part of the challenge course.

                                     12
2003 training program along with Newton.          Hewett and one or two of

the facilitators at Rockbridge trained the summer staff on ropes

course.

             F. Expert Deposition Testimony & Declarations

     Daniel    Pervorse   of   Signature      Research,    a   company   which

provides challenge course construction and design, offered expert

deposition    testimony   on   behalf    of   Young   Life.     Pervorse   had

extensive experience in challenge course training, operation, and

design.    He stated that it was appropriate to train ropes course

participants where to clip in without also discussing where they

should not clip because discussing what participants should not do

might lead them to make mistakes.          Thus, Pervorse found no fault

with Young Life’s instructing ropes course participants to clip to

the weight-bearing cables without specifically instructing them not

to clip to the portion of the excess cable that was not weight-

bearing.   Pervorse also believed that Newton had used appropriate

judgment in working with Kuykendall, although it did appear that

Newton had not adhered to Young Life’s site specific procedure for

the activity in which Kuykendall was engaged.             Pervorse testified

that although he would expect a course builder to recognize and

correct a gap between the main cable and the end of the excess

cable, he would not typically have expected a course facilitator to

do the same because if the facilitator had told participants where




                                    13
to clip in, the gap would be a non-issue, since participants would

know to clip in beyond it.

     In contrast, Kenneth Jacquot, who, like Pervorse, had worked

in the challenge course industry for a number of years, submitted

an   expert   declaration   on   behalf   of   Kuykendall.   Jacquot’s

declaration stated that any ropes course that did not have a

challenge course manager who understood the danger of a gap between

the main cable and the end of the excess cable should be shut down

until staff had sufficient training to recognize the condition.8

     Jeffery Boeke, CEO of ABEE, Inc. (an accredited professional

vendor member of ACCT), who had over twenty-five years experience

in challenge course training, construction, and inspection, also


     8
      Jacquot opined that the suggestion in Robertson’s e-mail that
a person in Kuykendall’s position on the day of the accident would
have a fifty percent chance of hooking to the non-weight-bearing
cable was correct and that subjecting someone to that risk
“approaches, if not reaches, willful recklessness.” (J.A. at 610.)
Jacquot also stated that Rockbridge had “numerous separate
violations of the ACCT standards under which it said it was
operating,” but did not specify which standards Rockbridge violated
or what conduct constituted the violations. Instead, he further
opined that the alleged violations evidenced “a degree of
negligence showing indifference to another and an utter disregard
of prudence which amounts to a complete neglect of the safety of
such other person” and that “this degree of negligence would shock
fair-minded people” and “approach, if not reach, a degree of
negligence constituting wilful [sic] recklessness.” (J.A. at 610.)
On appeal, Kuykendall does not contend that Jacquot’s conclusory
statements regarding the degree of alleged negligence are
sufficient to create a genuine issue of material fact -- a wise
move, given that it is well settled that a party “cannot assure
[it]self of a trial merely by trotting out . . . [an] expert’s
naked conclusion about the ultimate issue.”       Weigel v. Target
Stores, 

, 469 (7th Cir. 1997) (internal quotation marks
and citations omitted).

                                   14
submitted a declaration on behalf of Kuykendall. Boeke stated that

Newton’s         failure    to    accompany       Kuykendall     to    his     station

demonstrated an absence of adequate training and supervision.

                            G. The Present Litigation

      On June 20, 2005, Kuykendall filed suit against Young Life in

the   United      States    District     Court    for   the   Middle    District     of

Florida, invoking the district court’s diversity jurisdiction.9 In

an amended complaint filed July 25, 2005, Kuykendall asserted

claims     of    Gross     Negligence    (Count    I)   and   Willful    and      Wanton

Negligence (Count II) against Young Life.

      On September 9, 2005, the district court granted Young Life’s

motion to transfer the case to the Western District of Virginia.

After      the    transfer,      Young   Life    amended   its   answer      to   raise

Virginia’s charitable immunity doctrine as an affirmative defense

against “any acts or omissions of simple negligence attributable to

Young Life.”        (J.A. at 17.)

      Following discovery, in July 2006, Young Life moved for

summary judgment.10           The district court granted the motion in a


      9
      Kuykendall is a citizen of Florida and Young Life is a
Colorado non-profit organization with its principal place of
business in Colorado. Kuykendall’s complaint sought $2.5 million
in damages, an amount well in excess of the amount in controversy
requirement codified in 28 U.S.C.A. § 1332 (West 2006).
      10
      Young Life submitted declarations in support of its summary
judgment motion seven days after filing the motion itself, after
the deadline for the filing of dispositive motions. Young Life
also submitted supporting exhibits with its Reply to Kuykendall’s
Response to the motion. On appeal, Kuykendall objects to Young

                                           15
memorandum opinion and order dated November 7, 2006.                      Kuykendall

timely noted an appeal, and we possess jurisdiction pursuant to 28

U.S.C.A. § 1291 (West 2006).

                                       II.

                                       A.

     We review de novo the district court’s grant of summary

judgment to Young Life, applying the same standards that the

district court was required to apply.                   See Laber v. Harvey, 

, 415 (4th Cir. 2006) (en banc).                    “Summary judgment is

appropriate      if    the     pleadings,         depositions,       answers       to

interrogatories,      and    admissions      on    file,     together      with   the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.”         

Civ. P. 56(c) (West

1992)).     As noted, we construe the evidence in the light most

favorable   to   Kuykendall,     the   non-moving          party,   and    draw   all

reasonable influences in his favor.               

initial matter, we must briefly address Kuykendall’s

argument that the district court misapplied Virginia’s charitable


Life’s “tactics” in timing the submission of the declarations.
Because he never objected to the district court’s consideration of
this evidence, however, he has waived any argument that it should
not form part of the record. Also, we note that Young Life claims
Kuykendall did not previously object because Young Life’s evidence
responded to depositions Kuykendall conducted well after the
discovery deadline had passed.

                                       16
immunity doctrine.11     Under Virginia law, a charitable institution

is immune from liability to its beneficiaries for the negligence of

its servants or agents, provided that the charity has exercised due

care in their selection and retention.             See Cowan v. Hospice

Support Care, Inc., 

, 918 (Va. 2004).                Virginia

recognizes three levels of negligence, and the doctrine shields

charities from liability only for the first -- simple negligence;

it does not extend to gross negligence or willful and wanton

negligence.      

that “the public policy rationale

that shields a charity from liability for acts of simple negligence

does not extend to acts of gross negligence and willful and wanton

negligence”).

     Contrary to Kuykendall’s repeated assertions, the district

court did not grant summary judgment to Young Life on the basis of

Virginia’s charitable immunity doctrine. The district court simply

noted     that   “Kuykendall   [did]   not   contest   the   application   of

Virginia’s charitable immunity doctrine,” but rather “argue[d] that

the facts [were] sufficient to prove gross negligence.”            (J.A. at

669.)      The district court properly recognized that Virginia’s

charitable immunity doctrine did not apply to Kuykendall’s claims

of gross negligence and willful and wanton negligence and was




     11
      Because the accident in question occurred in Virginia, that
State’s substantive law governs Kuykendall’s complaint.

                                       17
therefore irrelevant to its analysis of those claims.12             By failing

to pursue a simple negligence claim, Kuykendall has waived any

argument   that   “there   is   an   obvious   need   to   create   further[]

contours in the [charitable immunity] doctrine,” (Appellant’s Br.

36), which he believes should not cover dangerous activities

conducted by charities.13

                                      C.

     We therefore turn to the single, dispositive issue in this

appeal -- whether Kuykendall presented sufficient evidence for a

reasonable jury to conclude that his fall from the ropes course

resulted from Young Life’s gross negligence or willful and wanton

negligence.       As explained above, Virginia law recognizes three

levels of negligence.      The first, simple negligence, “involves the


     12
      Kuykendall argues that the district court disregarded Cowan
v. Hospice Support Care, Inc., 

(Va. 2004) by failing
to focus on the nature of the activity conducted by Young Life. In
addition to mischaracterizing the district court’s order, this
contention misconstrues Cowan, which never suggested that courts
should consider the services provided by the charity in determining
the applicability of the charitable immunity doctrine. Rather, the
Virginia Supreme Court in Cowan considered the nature of the
conduct involved in the three levels of negligence recognized under
Virginia law to determine whether the charitable immunity doctrine
should apply to all three, or only to simple negligence. 

      Kuykendall did argue before the district court that the ropes
course was an ultrahazardous or inherently dangerous activity for
which strict liability might be appropriate. The district court
rejected that argument on the ground “the hallmark of an
ultrahazardous activity is the inability to eliminate the risk
through the exercise of reasonable care,” (J.A. at 670 (internal
quotation marks omitted)), and Kuykendall has not appealed that
ruling.

                                      18
failure to use the degree of care that an ordinarily prudent person

would exercise under similar circumstances to avoid injury to

another.”      

.             The second level, gross

negligence, represents “a degree of negligence showing indifference

to another and an utter disregard of prudence that amounts to a

complete neglect of the safety of such other person.”                  

degree of negligence that would shock fair-minded

persons,     although      demonstrating       something    less     than    willful

recklessness.”          

    willful    and    wanton

negligence, involves “acting consciously in disregard of another

person’s     rights   or      acting   with   reckless     indifference      to    the

consequences, with the defendant aware, from his knowledge of

existing circumstances and conditions, that his conduct probably

would cause injury to another.”               

quotation

marks omitted).

      The district court concluded that the evidence could not

support a finding that Young Life was indifferent or apathetic

toward Kuykendall’s safety and that it was therefore insufficient

to   prove   gross    negligence.        The    district     court    agreed      with

Kuykendall that multiple acts of simple negligence can amount to

gross negligence, but stressed that this can only be the case if

the cumulative effect of the negligent acts demonstrates an utter

disregard     of   prudence      amounting      to   an    indifference      to    the

plaintiff’s safety.        See Ferguson v. Ferguson, 

, 652


                                         19
(Va. 1971) (explaining that “the cumulative effect of several acts

of negligence may constitute gross negligence, . . . not because of

the number of acts of simple negligence, but because the cumulative

acts, when taken together and considered under the facts and

circumstances of the case[] under review, did constitute gross

negligence”).      The court noted that Young Life had made efforts to

provide for Kuykendall’s safety by hiring an expert to examine the

course   less     than   two   months   before   Kuykendall      fell,   giving

facilitators more than 24 hours of training, and allowing only

experienced, trained volunteers to assist the facilitator.                   In

addition,   the    facilitator    instructed     the   leaders    and    campers

regarding proper techniques for clipping into and maneuvering

through the course.        Ultimately, it concluded that the evidence

could not support a finding of gross negligence.

     Kuykendall argues that the district court erred in concluding

that he had not presented sufficient evidence to raise a genuine

issue of material fact as to whether Young Life committed several

negligent acts which, taken together, show the “utter disregard of

prudence that amounts to a complete neglect of [his] safety,”

, necessary to prove gross negligence.                In

support of his argument that Young Life committed various negligent

acts and omissions, Kuykendall asserts that: (1) because there was

no need for the excess cable beyond the serving sleeve to be longer

than eight inches, the fifteen inch excess cable at Kuykendall’s


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station on the date of the accident represented a known latent

defect that Young Life failed to remedy; (2) neither Young Life nor

the third party vendor that designed and built the ropes course

expressly informed Kuykendall that a gap had formed between the

excess cable and the main cable; (3) Young Life failed to take

reasonable precautions to discover the gap between the cables at

Kuykendall’s station; (4) Young Life’s “clip to the red” policy was

misleading especially because the serving sleeve holding the excess

cable was marked in red tape; and (5) Newton watched Kuykendall

from the ground rather than taking him to his station to ensure

that he clipped in properly.     According to Kuykendall, these five

allegedly negligent acts and omissions add up to gross negligence

on Young Life’s part.    We cannot accept this contention.

      First, the record does not support Kuykendall’s assertion that

the 15-inch length of excess cable represented a known defect of

which he should have been informed.      Kuykendall relies heavily on

Robertson’s e-mail; the post-accident e-mail, however, does not

demonstrate that Young Life knew before the accident occurred that

(1) a gap had developed between the excess cable and main cable, or

(2)   its   “clip   to   the   red”    instruction   and   accompanying

demonstration of “where and how to clip properly,” (J.A. at 667),

would be insufficient to prevent a volunteer from unthinkingly

attaching both carabiners to the non-weightbearing excess cable.

In contrast, Newton and Hewett testified that they did not notice


                                  21
the gap between the cables.         Newton also indicated that he did not

understand the potential danger of such a gap before the accident.

Thus,    there      is   no   evidence   that   Young   Life   recognized     and

deliberately ignored the condition leading to Kuykendall’s fall.

Cf. City of Lynchburg v. Brown, 

, 410 (Va. 2005)

(“‘Deliberate conduct is important evidence on the question of

gross negligence.’” (quoting Chapman v. City of Virginia Beach, 

, 801 (Va. 1996))).

       Second, we agree with the district court that Kuykendall’s

evidence could not support a finding that Young Life’s acts and

omissions, in total, reflected “a degree of negligence showing

indifference to another and an utter disregard of prudence that

amounts to a complete neglect of the safety of such other person.”

. The Virginia Supreme Court has indicated

that    for   the    “cumulative    effect      of   the[]   circumstances”    to

constitute gross negligence, it must amount to “a total disregard

of all precautions, an absence of diligence, or lack of even slight

care.”    

.           Compare 

(holding that a plaintiff who fell from a defective city-owned

bleacher at a baseball game could not prove gross negligence and

stressing that “there [was] no evidence of deliberate conduct by

municipal employees or of a total disregard of all precautions by

them”); Frazier v. City of Norfolk, 

, 690-91 (Va.

1987) (holding that a child who fell from an orchestra pit eighteen


                                         22
feet into a basement could not prove gross negligence, even though

the city, which owned the building, was in violation of its

building code because railings were not in place and a child had

previously suffered a similar fall).

     Here, Young Life presented uncontradicted evidence detailing

its efforts to maintain the safety of the ropes course itself

through regular inspections and the safety of campers and cabin

leaders traversing the course through the assistance of trained

staff. Prior to the summer camp season, certified inspectors had

conducted both annual and monthly inspections of the ropes course.

Thereafter, facilitators and supporting volunteers completed daily

visual inspections. Newton, the facilitator on the date Kuykendall

fell, had completed a thirty-hour training program and received a

certification   from     an   independent   organization     (Adventure

Experiences).    “Only   experienced,   trained   volunteers   assisted

[Newton].”   (J.A. at 670.)   Moreover, before permitting Kuykendall

to enter the ropes course, Newton “ma[de] sure [he] was making it

clear to hook in between the reds” so that Kuykendall would clip

to the safest portion of the cable.         (J.A. at 339.)     The many

precautions Young Life took to ensure Kuykendall’s safety preclude

a finding that it demonstrated an “absence of slight diligence, or

the want of even scant care.”    

(internal

quotation marks and citations omitted).




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       From our vantage point and with the benefit of hindsight, it

seems clear that Young Life could, and perhaps should, have done

more    to   prevent   Kuykendall’s      fall      and    stave       off   the    serious

injuries that resulted. The precautions Young Life took to protect

Kuykendall may well have been inadequate, but the standard for

gross    negligence    is    one   of   indifference,           not    inadequacy.       A

reasonable jury could not find, in the face of the safety measures

Young Life employed, that Young Life’s conduct evinced “a degree of

negligence      showing     indifference      to   [Kuykendall]          and     an   utter

disregard of prudence that amounts to a complete neglect of [his]

safety.”      

.              Because Kuykendall cannot

prove gross negligence, he cannot as a matter of law prove willful

and wanton negligence.

                                        III.

       In sum, we conclude that Kuykendall has waived his argument

related Virginia’s charitable immunity doctrine by failing to

pursue a simple negligence claim in the district court. We further

conclude     that   the     district     court      did    not        err   in    finding

Kuykendall’s evidence insufficient to demonstrate that Young Life’s

acts and omissions rose to the level of gross negligence or willful

and    wanton   negligence     under    Virginia         law.         Accordingly,     the

judgment of the district court is

                                                                                 AFFIRMED.




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