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by Charles R. Gregg and Catherine Hansen-Stamp
While camps are certainly accountable to the families of their campers,
they deal most fundamentally with children, minors, in delivering the
traditional camp experience. Camps understand that they have responsibilities
to minor campers, and try—through compliance with ACA standards,
careful hiring and training of staff, maintenance of equipment and facilities,
and in many other ways—to fulfill their responsibilities and to
run a quality program. As a result, the notion of collecting a "release" of
liability from campers or their parents, up front, can be difficult for
camps and families to understand or accept. We will be addressing these
important and difficult issues at the upcoming 2007 ACA National Conference
to be held in Austin, Texas. We hope you will join us there and provide
your thoughts as we discuss these issues and provide a perspective on
pertinent legal trends and decisions across the country.
Duty of Care
The duty of a camp to a minor child is generally one of "reasonable
care." Articulations of this duty vary, including the often misunderstood
doctrine of "in loco parentis"—in the place of the
parent. Thankfully, even the courts, which have declared this duty to
be "the highest duty" (that is, one that exceeds reasonable
care), acknowledge that parents, camps, or other organizations supervising
children are not required to insure a child's safety or completely
eliminate the risks of physical or emotional injury. Courts understand
that appropriate supervision includes exposing the child to adventure
and risks that enhance the emotional and physical development of the
child. As a result, the duty is to reasonably manage the activities and
risks of the camp experience. Personal growth, including skill development,
would not be possible without these risks, which are inherent in the
camp experience. We examined these issues in detail in our Fall 2005
The Campline article: "Reasonable Supervision and the ‘Safe'
Environment—What
Are the Issues?"
The characterization of the duty and its limits varies somewhat, depending,
of course, on the laws of the specific jurisdiction, and factors such
as the custody and control aspects of the relationship, the risks to
be encountered, and the age of the child. A camp acts through its staff
and will generally be held vicariously responsible for the acts of its
staff, acting within the scope of their employment. As a result, the
standard of care most commonly described by the courts is this: A camp
staff member must act as a reasonable camp professional, or other staff
member, would act in the same or similar circumstances. A staff member
that fails to meet this standard of care may be found guilty of negligence
as may the camp, through this doctrine of vicarious liability. Negligence
is the breach of the duty of care, which produces a loss. In determining
whether a duty was breached, a court may look, among other things, to
standards or practices in the industry, an organization's own internal
practices or representations, or an expert's characterization of
appropriate or reasonable conduct (Hansen-Stamp and Gregg 2005).
Another Aspect of the Duty Equation
A family's expectations regarding the camp's responsibility
for the child's well being will be influenced by the length of the
stay at camp, the degree of control to be exercised, the nature of the
activities, and the age of the child. In addition, a camp's well
intentioned (but perhaps misguided) assurances of safety, or its failure
to address the realities of the risks to which the child may be exposed,
may further elevate the family's expectations. These factors can
fuel a lawsuit or complicate the camp's ability to defend itself
in these circumstances. These issues emphasize the need for camps to provide
good, accurate, consistent, and balanced information to campers and their
families before, during, and following the camp experience (Hansen-Stamp
and Gregg 2006).
Defenses to a Claim of Negligence
Defenses to claims of negligence include, among others, the following:
A. The camper's injury resulted from an inherent risk of the camp
experience and not from provider negligence or other misconduct.
Inherent risks include those that we seek (exciting whitewater, steep
terrain) and those that we don't seek (falling rock, bad weather)—all
of which come with the territory. An inherent risk is one which is such
an integral part of an activity that, without it, the activity would lose
its fundamental characteristics, including, its value and appeal to those
producing and engaging in it. In most jurisdictions, a camp and its staff
have no duty to protect the minor camper from the inherent risks of adventure
and recreation activities, and no liability for harm resulting from those
risks. (This is oftentimes referred to as "primary assumption of
risks.") The classic rule is that in agreeing to participate, a camper
assumes the inherent risks of those activities, whether those risks are
known or unknown. The nature of risks which qualify for this inherent risk
"no duty" rule vary from jurisdiction to jurisdiction, as does the
courts' interpretation of this doctrine, but in many cases, it is applicable
to minors.
B. Even if the camp or its staff had a duty to protect the child in
a particular case, the minor's contributory fault was the cause of all
or part of the harm.
In many jurisdictions, a child's proven carelessness or other misconduct
(including the child's voluntary and knowing "secondary" assumption
of risks) can be compared to the fault of the camp, resulting in the decrease
or elimination of the camp's liability, under a state's comparative
fault laws.
C. The child's parent signed a release of liability, agreeing, in
advance, to release the child's right to bring a negligence claim
against the camp.
In a few jurisdictions, a parent (either by statute or through case
law) is able to release these rights on behalf of his or her child. (Colorado
and Alaska recently passed laws which allow parents and guardians to sign
such releases.) In those jurisdictions, a camp may ask the court before
a trial (typically in a hearing on a "motion for summary judgment")
to dismiss a suit, filed by the parent on behalf of the child, alleging
that the camp's negligence resulted in harm to the minor camper.
If the court upholds the release, the case against the camp may be dismissed.
It is important to note, however, that the vast majority of states in the
U.S. either have not dealt directly with the issue or have prohibited such
releases.
[Minors (in most states, those under the age of eighteen) are generally
incompetent to enter into a contract. A release (an agreement not to sue),
signed by a minor, is unenforceable. Upon reaching adulthood, an individual
may ratify an agreement of release he or she signed as a minor, but more
typically the individual disaffirms the release upon reaching adulthood,
by filing suit.] Even in jurisdictions that have ruled that a parent cannot
release these rights on behalf of the child, the jurisdiction may enforce
a parent's agreement to release his or her own rights to sue for
negligence, as a result of injury to the child.
Use of a Release with Minors
What are these releases, why are they sought, and what do they say about
a camp's culture, ethics, and commitment to the camp's families?
If other defenses to claims are available with minors, why should a camp
consider asking parents to release the rights of their child, or their
own rights to sue the camp for its negligence? As we noted in our January/February
2006, Camping Magazine article "Legal & Partnering—Really?" —this
is a delicate aspect of partnering with parents which we advocate.
Release language may be incorporated into a larger agreement—a
camper agreement for example—which describes activities and risks,
calls for an acknowledgment and assumption of those risks, and addresses
other aspects of the relationship among the camp, the family and the
camper. The sole purpose of the release clause is to release the camp
and others named as released parties (staff, for example), of legal liability
for future negligence—the failure to meet the applicable duty of
care. In jurisdictions allowing such releases, organizations, including
camps, are generally not allowed on public policy grounds to release
their liability for more serious misconduct—such as gross negligence
or willful, wanton, or reckless misconduct.
So when a camp presents a family with this release language, it is saying:
"We want you to agree, now, that you will not sue us if our carelessness
hurts, or even kills, your child." If the parent asks you to explain this
release, what do you say? If you have thought carefully about the issue
(and you should have) you might say that your purpose is to deter frivolous
suits, which occur too frequently in our current litigious society. A frivolous
suit might be one arising from, for example, an inherent risk of the activity,
not the carelessness of the staff person. In addition, you can inform them
that there is often a murky line between injuries resulting from inherent
risks (concerning which the camp may have no duty) and those resulting
from a camp's fault or negligence (a breach of the camp's duty).
You, the camp, wish to reserve to yourself the judgment as to how the injury
occurred and if and how to compensate the injured child, because you understand
camp and camp activities better than the judge or jury who might have to
decide the outcome of a lawsuit. Basically, you will be asking the parent
to trust you not to abuse the release. In addition, you may explain the
value of the camper agreement, as a whole, in providing important information
about activities, risks, and camp family responsibilities.
But, the parent might respond: "You are not trusting me to assert
only legitimate claims!"
The parent might know, and assert to you, that the state whose laws
would be applied to a dispute does not allow parents to sign a release
on behalf of a child; or, that such a release is unenforceable, or contrary
to public policy, even though your jurisdiction has not yet ruled on
the issue. If you are operating under a permit or concession on federal
lands, the parent may urge that the policies of that land manager restrict
the camp from using any type of release with its participants, when operating
under permit on those federal lands.
If the statutory or case law of your jurisdiction clearly prohibits
these types of releases, you (and your lawyer) should think carefully
about including such a release. Although the court may change its ruling
on the issue at a future date, you may risk losing the benefit of the
entire document by including this provision. Restrictions on government
land should be investigated, and dealt with appropriately, because they
may limit your ability to seek an enforceable release (not within the
scope of this article).
A camp may choose to include release language in a camper agreement, despite
uncertainty in the laws of its jurisdiction. There may be some danger in
inserting language which you have reason to believe may not be enforceable.
The court might find that you are deliberately trying to fool the family
regarding their rights, or loss of rights, in the event of an injury. Or,
the court might simply find that such a provision is unenforceable. In
either case, the court might void the entire document—a document
that may have many important provisions, in addition to the release provision.
On the other hand, release language in your camp agreement may be introduced
by language such as "to the extent the law allows," which signals
that applicable law might not be well developed regarding if and how
the release might be enforced. In doing so, the camp may attempt to
take advantage of what is something of a trend in the United States
to allow such releases particularly (as we have seen) in situations
involving children in school or community-based (oftentimes nonprofit)
recreation programs.
In any event, there is a reasonable expectation that more states will
be changing their laws in this regard, and allowing such releases. And
a court considering the release provision in question may find that a
parental release regarding the particular activity was justified, and
in fact should be encouraged.
If you have not discussed this issue with your staff, consider doing
so. A serious discussion with your camp's families might also be in order
too, and might influence your thinking on the subject.
Conclusion
Whatever you decide to do will certainly reflect the culture and ethics
of your camp. The issue is a serious one and, as noted above, will be
the subject of a seventy five-minute presentation by us at the American
Camp Association Conference in Austin, Texas in February.
This article contains general information only and is not intended to
provide specific legal advice. Recreation providers should consult
with a licensed attorney regarding application of state and federal
laws specific to their business or operation.
©2006 Charles R. Gregg and Catherine Hansen-Stamp
| References |
| Hansen-Stamp C. & Gregg R. (2005). Reasonable
supervision and the "safe" environment—what are
the issues? The Campline, XIV(2), 8-12. |
| Hansen-Stamp C. & Gregg R. (2006). Legal and partnering—really? Camping
Magazine, 79(1), 52-55. |
Originally published in the 2007 January/February
issue of Camping Magazine. |
