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By Charles R. (Reb) Gregg and Catherine Hansen-Stamp
Message From the American Camp Association
Kids want action! Excitement! Cool activities!
New stuff! Parents want safety.
They want kids to have fun, but they also expect you to deliver EVERYTHING
in the camp brochure. Directors (and boards and owners) also want camp
to be a safe experience.
Developmental psychologists and youth development specialists would
tell us that risk and challenge are important developmental dimensions
— important to the positive growth and development of youth.
How does a director balance this?
ACA invited two attorneys to comment on the issues raised in a director's
effort to understand "in loco parentis." Should your camp provide
"risk-related" activities? Should your brochure say that your
camp provides a "safe experience"?
The purpose of this article is to generate dialog about the pull between
safety and developmentally appropriate experiences. Of course, camps don't
want to intentionally (or sloppily) offer unsafe experiences — nor
do we want to imply that the courts hold us to a standard of care with
such strict control that appropriate risk-taking cannot occur.
Where is the point of balance?
Introduction
Appropriate supervision of campers is one of the most important issues
of camp management. Compare the relative value of a philosophy of supervision
that enhances camper growth, with one which calls for the continuous monitoring
of the child in an effort to "ensure the child's safety." Reasonable
exposure to risks and the understanding and acceptance of personal responsibility,
at appropriate levels, is a desirable part of a child's maturation, and
the camp experience, and can actually assist in minimizing incidents and
injuries. Issues exist because of marketing pressures to tout camp safety
to parents and camp leaders and administrators' misplaced expectations
about a camp's responsibilities to and for the child.
This article will discuss issues of camp supervision of children, including
what is the perceived and what is the legally imposed duty or standard
of care that a camp owes to a child. We will explore the role of ACA standards
in the area of supervision and the interplay between supervision and the
inherent risks of recreation and adventure activities. Our focus will
be on the value to the child of adventure, recreation, learning and assumption
of responsibilities, and the unavoidable exposure to the risks that accompany
those growth opportunities.
Our message is not intended to apply to the camp's legal and ethical
obligations in the very serious issues of camper or counselor sexual abuse,
drug experimentation, and mental and physical disorders and the camp's
need to protect a child's physical and emotional well-being in those areas.
Those important issues are not within the scope of this article.
A camp aligns its activities with its outcomes (e.g., personal or religious
growth: developing physical, social, or emotional skills; fun; leadership
and development skills; etc.); offers only those activities whose risks
the camp can reasonably manage (ropes courses, urban expeditions, extended
back country travel); and reasonably manages those risks.
Risk cannot be eliminated from the camp experience. To attempt to do
so would change the experience so significantly that it would lose its
appeal and purpose. The responsibility of the camp is to reasonably manage
its risks, most of which are inherent; avoid serious injury; and reduce
the frequency and the severity of minor injuries, some of which are inevitable.
Reasonable risk management is achieved through a blend of tasks, including
the following:
- careful selection, training, and oversight of staff;
- appropriate and well-maintained equipment;
- an emergency response plan;
- familiarity with the environment in which the activities will take
place;
- familiarity with the special needs of the campers;
- documentation that will a) inform the camp regarding the campers'
physical and emotional health and skills, and b) record and provide
the opportunity for analysis of events that might signal a dangerous
person, place, or activity;
- administrative support, including good food, morale, and fair staff
salaries;
- an exchange of information between the camp and the camper and the
family, which alerts each to information about the other in order to
reduce surprises which might cause some disappointment or loss; and
- continued monitoring and testing of policies and procedures.
As important as any of these, and more important than many, is the issue
of camper supervision during regularly scheduled activities and otherwise.
Perceived Duty of Care
Contrary to the belief of even some very sophisticated camp managers,
the responsibility of the camp is not to provide a "safe" experience
or, as sometimes suggested, a "safe environment" in which the
campers may grow, learn, and have fun. This climate or "culture of
safety" in the camp industry — the notion that camps should
"make it safe" for kids (and marketing pressure to make that
promise) — is pervasive. Camps should recognize more frankly the
value of risk and children's acceptance of reasonable levels of personal
responsibility. "Growing," "learning," and "having
fun" are all experiences in which existing levels of judgment, skill,
and abilities are tested. Any one, and all of these expose campers to
risks. Growing, learning, and having fun are not "safe." "Safe"
means, literally, "without risking harm." The term is easily
misinterpreted and should not be used casually. Offering to maintain a
"safe" environment in which a child can develop, is offering
a contradiction. Positive development demands appropriate challenge and
risk. Risk is not safety. Furthermore, a promise or announced intent to
ensure safety (either orally or in writing) — an impossible task
— has important legal ramifications.
Under supervision, a camper is shown how to do something. The camper
tries it. The potential for some error in the "trying" is always
present. Someone may be hurt (or only disappointed or embarrassed) by
the error. But the child has learned, and there has been growth, even
in his or her temporary failure.
Providing opportunities for children to accept and embrace personal
responsibility goes hand in hand with the acceptance of risks. Children
respond well to being given responsibility for their own well-being and
that of the group. They feel empowered when they are entrusted with responsibility.
The camp, in turn, benefits from the increased awareness, understanding,
growth, and self-reliance — characteristics that can actually reduce
the risk of injury or incidents.
Camps, schools, families, religious institutions, the workplace, and
the military all produce life transforming experiences. None are more
significant in this aspect than a camp experience. So the reins (if we
may use that analogy) must be held somewhat loosely by management and
staff, allowing wrong turns and missteps, but also allowing correction.
This is supervision. It is not a guarantee of safety, nor should it be.
Legal (the "Real") Duty of Care
The law recognizes the value of experimentation and adventure in the
context of instruction and co-participation in active sports and recreation.
The law in many jurisdictions, in fact, forgives simple carelessness on
the part of instructors and co-participants, acknowledging the difficulty
of drawing a line between carelessness and the natural and predictable
mistakes that accompany work and play and learning new skills. In these
jurisdictions, simple carelessness is considered an inherent risk of the
activity. To punish simple carelessness, many courts hold, would "chill"
the activity, and the expectation and creativity that feeds education
and growth.
Generally, a counselor or instructor has a duty to exercise what the
law describes as "reasonable care" when dealing with (supervising)
children. That duty is to exercise the care that a reasonable person (in
our context, a trained instructor or counselor) would exercise in the
same or similar circumstances. Obviously, responsible hiring practices,
adequate training of staff in the area of supervision, and adherence to
applicable ACA standards are all important in efforts to fulfill this
duty.
Most jurisdictions adhere to the common law rule that this duty does
not include protecting a child from the inherent risks of recreation or
adventure activities. The classic rule is that in agreeing to participate,
the participant (minor or adult) assumes the inherent risks of the activity,
whether those risks are known or unknown (a "primary assumption of
risk" doctrine). The provider has no duty to protect the participant
from these risks and no liability for injuries resulting from these risks.
The nature of the activities that qualify for this inherent risk "no
duty" rule vary from jurisdiction to jurisdiction and is sometimes
defined by state statute.
Many courts have held that children — even young children —
assume the inherent risks of a recreational activity.1 Generally,
it is not required that the child understands and appreciates the risks
before being held to assume them, but the courts of a few states require
such awareness.2
Courts might also consider a child's "secondary" assumption
of risk. Even if a child (through his or her parent) is able to establish
a camp's negligence in a lawsuit, the camp may claim that the child assumed
the risks and can be held responsible for all or part of the loss (under
a state's "comparative fault" laws). Under this doctrine, the
camp (the defendant in the suit) must commonly prove that the child voluntarily
agreed to participate with knowledge and appreciation of the risk that
caused the injury.
As the American Camp Association (ACA) standards provide, it is a good
practice to inform and warn children and their parents about the risks.
This knowledge and information can assist the parent and child in a fuller
understanding of the nature of the activities the child will be engaging
in and the associated risks — increasing awareness and "buy-in"
and potentially minimizing incidents or resulting claims. In addition,
this "information exchange" can assist the camp in the defense
of any future claims, as discussed above.
The concept of "in loco parentis" is an often overused and
misunderstood term among those who instruct, lead, and supervise children.
In loco parentis or literally "in the place of the parent" is
a legal doctrine that, historically, charged individuals caring for minors
(including schools and camps) with the same rights, duties, and obligations
possessed by the child's parents — most commonly in the area of
discipline or conduct. Historically, the doctrine was extended to provide
these individuals/entities with protective immunities similar to those
provided to parents; for example, the ability to discipline and act without
fear of liability. In other words, the doctrine was used as a "shield"
and not a "sword," providing caregivers with protections and
flexibility in the areas of discipline and conduct, similar to that allowed
of the parent.3 Some jurisdictions have interpreted this doctrine
to mean that a counselor or leader working with children may be held to
a higher standard or degree of care, and/or that the in loco parentis
principal be a basis for establishing a duty of care.4 Even
in these cases, courts recognize that a counselor or leader is not required
to be an ensurer of the child's safety. Further, the in loco parentis
concept should not impact the appropriate application of the inherent
risk doctrine to children's participation in recreational activities.
In any event, it should be noted, parents routinely expose their children
to risks to better prepare them for the challenges of an active life ahead.
If a camp were charged with the obligation to act in loco parentis, it
might argue that controlled exposure to risks is a natural extension of
thoughtful parenting.
An instructor or other leader's duty of care can be changed, increased,
eliminated, or affected by a variety of factors. Did the camp follow its
internal standards? Did the camp adhere to industry practices —
importantly, did the camp follow applicable ACA standards — in the
particular situation? Did the camp follow the law and comply with applicable
statutes? Did the camp openly ignore a recognized problem at its facility?
These issues and others can affect the duty determination.
ACA Standards
How do the ACA standards address the issue of supervision and safety?
Generally, the standards do not expect camps to ensure safety. By way
of example, the standards (including those currently under revision and
being circulated for comment), ask camps to consider "appropriate"
levels of staff training, appropriate staff/student ratios, and hiring
practices that have been reviewed by legal counsel and comply with the
law (HR 3, 4, 7 and 9).
HR 11, Precamp Staff Training (currently under revision), describes
components of staff training, including addressing the "[d]evelopmental
needs of campers to be served . . . ." Item 4 under this HR standard
calls for "[b]ehavior management and camper supervision techniques
to create a physically and emotionally safe environment." Pertinent
to a suggestion that the standard mandates the creation of a "safe"
environment (which is not achievable) is the Interpretation of the standard,
which states: "[t]he intent of this standard is to assure that staff
are given comprehensive training and resources that focus on intentionally
creating a positive camp experience." This is a worthy goal and one
which does not tie the camp to a philosophy of supervision that discourages
camper development and growth.
HR 15 (currently under revision), which addresses staff/camper interactions,
recognizes the need to "[f]ocus attention primarily on campers' needs
and interests rather than on other staff and themselves." The Interpretation
of the standard refers to "carrying out camp activities in different
ways depending on the developmental level of the campers." This standard
can encourage staff members' recognition of the supervisory role "balance,"
providing appropriate supervision, while allowing for camper growth and
encouraging campers' acceptance of appropriate levels of personal responsibility
in daily camp interactions and activities.
The Code of Ethics set out in the 1998 edition of the Accreditation
Standards for Camp Programs and Services (also being revised) states that
the ACA, to accomplish its mission, "educates camp personnel to create
positive growth experiences for children, teens, and adults using the
outdoors responsibly as a program environment." In the same document,
accredited members are asked to subscribe to certain "exemplary ethical
practices for camp owners, directors, and executives," which include
the following (at Number 8): "I shall endeavor to provide an environment
conducive to promoting and protecting the physical and emotional well-being
of the campers and staff." This, too, is a worthy and realistic aspiration.
It does not promise "safety," but reflects a commitment to both
promoting and protecting physical and emotional well-being, which certainly
contemplates the growth, development, and entertainment of the camper
and their attendant risks.
Practical Application — A Case Example
Recent legal cases offer encouragement that courts recognize the critical
supervisory "balance" for those working with minors in a camp
setting — reasonable supervision that allows room for children's
exposure to risks and acceptance of personal responsibility — vital
to a child's growth and development.
Although its ultimate holding is not particularly instructive for our
purposes here, certain observations of the court in the New York case
of Lesser v. Camp Wildwood (2003)5 are enlightening. In Wildwood,
a twelve-year-old boy (Jory Lesser) was seriously injured by a falling
tree branch during a camp waterfront evacuation following a sudden storm.
Jory's parents filed a lawsuit against Camp Wildwood, claiming the camp
was, among other things, negligent in supervising Jory as he was evacuated
from the lakefront. They claimed that this negligent failure to supervise
the evacuation (Jory was "confused as to where to go for shelter
and lost in the chaos of the poor evacuation") was the cause of Jory's
injuries. In Jory's words, after a shouted order to "get to the bunks,"
"[it] was like 800 chickens running around with their heads cut off."
Among other things, the plaintiffs sought to refute what they described
as "repeated" claims of the camp that they had complied with
ACA standards and that ACA camps were "safer." One of the issues
before the court, in this pre-trial proceeding, was whether plaintiffs'
expert could testify regarding the camp's compliance with ACA standards,
and, regarding whether the camp had provided "adequate supervision"
to Jory Lesser, the night of the evacuation. The court ruled that a plaintiff's
expert could testify concerning the camp's compliance with ACA standards,
but not on the issue of whether the camp provided adequate supervision.
The court reasoned that expert testimony was not necessary to assist the
jury in evaluating the negligent supervision claim, and that the jury
could evaluate this claim based upon the evidence and testimony before
them.
The court ultimately denied the camp's efforts to have the negligent
supervision claim dismissed before trial, finding there were questions
of fact on the issues that should go to the jury: " . . . whether
defendants provided adequate supervision and whether any inadequate supervision
was the proximate cause of plaintiff's injuries." The court noted,
for example, that the evidence (or lack of it) reflected that the camp
did not follow its own internal protocols in conducting the evacuation,
nor did it rehearse its safety plan, as required in the ACA Standards
Manual.
In its ruling, the court states that under New York law, camps, schools,
and others having the "custody and care" of a child must exercise
the degree of care of a "reasonably prudent parent" in similar
circumstances; what the court terms the "highest degree of care."
(citing other New York cases) The court follows this statement with an
acknowledgment of the important limits on the duty to supervise minors
in a camp or similar setting, as noted in other recent New York case law6:
". . . camps, like schools, are not insurers of safety . . . for
they cannot reasonably be expected to continuously supervise and control
all movements and activities of students." "[C]onstant supervision
is neither feasible nor desirable because one of the benefits of such
an institution (the camp) is to inculcate self-reliance in the campers
which an overly protective supervision would destroy." The court
went on to discuss supervision in the context of recreational events
and activities: "[o]rganizers of recreational events owe a duty
to exercise only reasonable care to protect participants ‘from
injuries arising out of unassumed, concealed or unreasonably increased
risks.'"
It appears the court is recognizing, as we suggested above, that a camp's
duty (akin to) "in loco parentis" does not require constant
or "overly protective" supervision and must allow for the development
of self-reliance and, presumably, other characteristics of physical and
emotional growth. Putting this in the context of the New York law, cited
by the court: even a camp, charged with a duty to act as a reasonably
prudent parent exercising the highest degree of care, must exercise appropriate
supervision that allows the child to grow in important ways.
Conclusion
In exchanging information with families, the camp should make clear
its commitment to the children and a philosophy of supervision that allows
for experimentation, assumption of appropriate responsibilities, exposure
to risks, mistakes, and the possibility of some hurt, both emotional and
physical. This is an adventuresome growth and developmental experience
and neither can be achieved without the chance of some loss. Is this a
legitimate mission for the camp? We think it is (although we are certainly
not child development specialists). Is it understood by the parents? If
it isn't understood, it should be. The obligation to inform the campers
and families of the realities of the experience should outweigh any concern
that the information may not be received with enthusiasm.
Understand the value of risks and personal responsibility for campers,
with reasonable and appropriate levels of supervision. This approach is
empowering for campers, and can actually assist the camp in minimizing
the risk of injury or incident. Provide accurate information to campers
and parents on activity risks — avoiding marketing clips or statements
that ensure or imply absolute safety. Importantly, consider the application
of — and your camp's compliance with — the ACA standards.
Camp is a defining experience in the life of a young man or woman. A
significant part of camp management is a philosophy of supervision that
identifies the value of experimentation, risks, and a camper's acceptance
of personal responsibility and controls the severity of unfavorable consequences.
This is not a philosophy of "safety." It is one of growth and
promise for the future and is vital to fulfilling the expectations of
the camp and its families.
*This article contains general information only and is not intended
to provide specific legal advice. Camps and related organizations should
consult with a licensed attorney regarding application of relevant state
and federal law as well as considerations regarding their specific business
or operation.
| (Endnotes) |
| 1 See, e.g. Bennett v. Hidden Valley Gold
and Ski, Inc., 318 F. 3d 868 (8th Cir. 2003); West et al.,
v. Sundown Little League of Stockton, 96 Cal. App. 4th 351 (2002). |
| 2 See, e.g., DeLacy, et al., v. Catamount
Development Corp, 2002 W.L. 31992955 (N.Y.A.D. 2003). |
| 3 Van der Smissen, Betty, Legal Liability
and Risk Management for Public & Private Entities, 2.2112,
p. 7 (1990); Dobbs, Daniel, The Law of Torts, section 326,
(2001); Lake, Peter, The Rise of Duty and the Fall of In Loco
Parentis and Other Protective Tort Doctrines in Higher Education Law,
64 Mo. L. Rev. 1 (1999); see also Trinkaus v. Mohawk Ski Area
et al., 2003 Conn. Super. Lexis 165 (2003). |
| 4 See, e.g., Lesser v. Camp Wildwood,
282 F. Supp. 2d 139 (N.Y. 2003); Juarez v. Boy Scouts of America,
et al., 81 Cal. App. 4th 377 (Cal. 2000); Beul v. ASSE International,
Inc., et al., 233 F. 3d 441 (7th Cir. 2001); Molock v. Dorchester
County Family YMCA, 779 A. 2d 963 (Md. App. 2001). |
| 5 282 F. Supp. 2d 139 (D.C. S.D. N.Y. 2003). |
| 6 See, e.g., Fintze v. New Jersey YMHA-YWHA,
2001 N.Y. Lexis 3791 (N.Y. 2001) and other cases cited by the court;
see also, Anthony v. Village of Garden City, et al. (N.Y.
2003 jury verdict report). |
Originally published in the 2005 Fall issue
of The CampLine.
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