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By Charles R. (Reb) Gregg and Catherine Hansen-Stamp
The Issue
here are many areas of staffing important to the running of a quality
camp program. Camps, for example, must be sensitive to the variety of
state and federal laws that outline procedures and parameters for the
hiring, firing, and management of camp employees. Laws such as the Americans
with Disabilities Act, Civil Rights and Workers' Compensation must be
understood and complied with. These laws and doctrines affect a camp's
liability to its staff. However, a growing and key area of concern, and
the focus of this article, is the critical reality that a staff member's
actions can create liability for the camp. What is the basis for this
liability exposure? How does a camp minimize its exposure for the acts
of its staff? How does a camp respond? This article will outline the framework
and provide some practical solutions.
The Challenges
Fueling this staffing issue are several key factors, playing into most
camp or outdoor recreation arenas. From a marketing perspective, camps
feel increasing pressure to differentiate their operation from the camp
down the road, or within the region. Every camp is looking for a way to
distinguish their operation, whether on their Web site, in their brochure,
or at the next conference or trade show. This pressure fuels the increasing
desire to develop new "toys," offer new activities, venture
into new environments, and create more variety in the camp experience.
At the same time, camps are seeing developing and increasing standards,
new and increasing camper health and behavior issues, and importantly,
new and increasing camper and parent expectations about both camp quality
and safety. As a result, camps must be increasingly vigilant about understanding
their exposure and seizing opportunities to minimize that exposure, while
focusing on the main goal of running a quality operation.
The Problem
A camp's liability exposure for acts of its staff is key because staff
are on the front line. The staff are in many ways, a central piece of
the camp's identity, projecting, and protecting, the feel, the personality,
and the reputation of the camp. These are the folks who make the first
impression when kids hop out of the car, and families walk up the steps
to the camp registration desk. These are the folks who supervise, instruct,
and lead the campers in the day's events and activities. These are the
folks who respond, when a camper is hurt. Issues arising from staff conduct
or judgment can and do lead directly to injury or loss to campers, and
inevitably, to injury or loss to the camp, including the loss of money,
loss of reputation, and loss of business.
Legal Framework
What is the nature of a camp's legal exposure for the acts of its staff?
When a camper gets hurt, and a lawsuit is filed, the most common claim
filed against the camp (and sometimes, against the individual employee)
is a claim of negligence. That is, a claim that the camp — or its
employee — failed to exercise reasonable care (was "negligent")
in the conduct of some aspect of the program, and that that negligence
caused the camper's injuries. To prove a claim of negligence, the plaintiff
must prove that there was: 1) a duty owed; 2) a breach of that duty; 3)
a loss [to property, or a personal injury, physical or emotional]; and
4) a causal connection between the breach of duty and the loss.
Nature of Claims
Generally, a camp can be both directly and vicariously liable for the
acts of its employees. For example, if a camper is injured as a result
of the alleged carelessness, inexperience, or inattentiveness of a camp
employee, a camper ("plaintiff") lawsuit might claim that the
camp was negligent in hiring or training the employee ("direct"
liability). Alternatively, the plaintiff may claim that the camp is responsible
for the employee's negligent instruction or supervision of the injured
camper, committed in the course of his/her employment ("vicarious
liability"). This vicarious liability (often referred to as the doctrine
of "Respondeat Superior") commonly extends as well, to a camp's
volunteer leaders or interns. The notion is that the employee or other
representative is a logical extension of the camp and that the camp should
therefore be responsible for its employees' acts or omissions, during
the course of the work time.
Different types of legal exposure come into play in the event the camp
hires independent contractors to conduct or instruct activities or programs.
This might be the case, for example, if a camp wanted to offer horseback
riding activities to its campers but did not own its own horses or run
its own equine program. The camp might hire an organization down the road
to conduct horseback riding lessons for the campers during their month-long
stay or simply offer a day horse pack or horseback riding trip during
the camp session.
Generally, to be defined and considered an "independent contractor"
under the law, the individual or entity must retain control over the scope
and details of how it conducts its work. If the relationship is upheld,
the independent contractor, not the camp, will be legally responsible
for the acts of its employees and any injury to campers hurt on its "watch."
However, if, the camp calls the individual an independent contractor,
but treats the relationship otherwise (directing and controlling, for
example, the scope and details of the individual's work), the court can
call it what it wants, and treat the independent contractor as an employee,
thereby subjecting the camp to vicarious liability. In addition, the camp
must exercise diligence in selecting any independent contractor, because
it can be held responsible to an injured party on a claim that it negligently
selected the independent contractor.
Another legal twist is a camp's legal liability on an "agency"
theory. Under the legal doctrine of "apparent authority," a
camp can be found liable for the acts of an independent contractor or
third party if it appears to the public that the camp is responsible (even
if it isn't) for the other party's actions. This can happen, for example,
if a camp uses a third party to conduct a particular activity, but doesn't
disclose to the public that there is another entity involved.
Defenses
The camp can assert a variety of defenses in response to a claim of negligence
(either direct or vicarious). These include: 1) that one of the elements
of a claim of negligence is missing (for example, the camp did not owe
any duty or was relieved of a duty owed); or, 2) that the injury resulted
from a camper's contributory fault or negligence. A common defense stems
from the "inherent risk" legal doctrine — the well-accepted
notion that a provider of outdoor or recreation activities has no duty
to protect participants from the inherent risks of those activities, and
has no legal responsibility for harm to a participant that results from
those risks.1 An admitted gray area is defining the line between
inherent risks and negligence. However, in some jurisdictions, courts
have ruled that, in the instructor/student context, the inherent risks
of the activities include instructor carelessness, stretching the inherent
risk doctrine beyond its original limits (this extension has also been
applied as between co-participants in sport or recreation activities).
Another common defense is that the participant signed a document assuming
the risks of the activity, and/or agreeing to release the camp from liability
for its negligence. These types of documents, if upheld, can justify dismissal
of a claim; in essence, the participant has agreed to relieve the camp
of liability for harm to the camper resulting from the camp's negligence.
A fuller discussion of the law goes beyond the scope of this article.
However, understand that the laws vary from jurisdiction to jurisdiction,
and a camp's own unique operation can have a bearing on how it hires its
staff and structures its programs. Work with your legal counsel to understand
how these laws and doctrines apply in your jurisdiction. In addition,
understand that the ACA-Accreditation Standards for Camp Programs and
Services, 1998 ("ACA Standards") address camp staff and staffing
issues in a variety of areas and should be taken into consideration as
well, whether or not a camp program is accredited. Standards in the industry,
including the ACA standards, are an important measuring stick used by
courts and juries (and experts) in determining whether a duty was owed,
and whether that duty was breached in a given case (see discussion below).
Areas of Concern
Areas of concern regarding liabilities created by staff inevitably focus
on the prospect of injuries to campers. Issues include the screening,
hiring, training, and supervision of staff (including volunteers); disclosure
to campers and families regarding staff and their competencies; and responsibilities
of the camp for (and to) staff during off-duty times.
In addition, the camp must deal with independent contractors in such
a way that their status does not change to one of employment and a resulting
enlargement of exposure to the camp to claims arising from their conduct.
The priority, and the solution to these issues of a camp's liability,
is of course the maintenance of a quality program — one that is
fair to the campers and their families, reasonably manages the risks of
the camp environment and activities, and reasonably meets the expectations
of the camp community as a whole. Such a program will minimize serious
incidents and create relationships that will facilitate an efficient and
mutually acceptable resolution of problems — even serious injuries.
Hiring
A quality program will conduct personal interviews and background checks
on its personnel and collect references. Background checks regarding younger
staff members will be limited, if they are available at all, and references
and personal interviews therefore take on added importance. ACA Standards
(See Human Resources, Standard HR-4, and Appendix P) must be understood.
Be prepared to defend against any deviation from those standards. The
information sought by your background checks, interviews and references,
and what you do with the information that you gather will be carefully
analyzed by a potential claimant with the benefit of hindsight.
To avoid a successful claim of negligent hiring (or screening or retention),
you must be able to show that you acted in these matters in the same way
a reasonable camp professional would have acted in the same or similar
circumstances.
Staff Competency
Your administration must understand and communicate the responsibilities
of the staff member, which include not only competency in certain activity
areas, but a demonstrated ability to deal with these energetic and creative
young people. Campers today arrive with expectations, and with behavior
and medical issues (as well as the traditional homesickness and medications)
that present special challenges to staff, not encountered even ten years
ago. It is your responsibility to understand these special challenges
and hire accordingly. Your background checks must recognize that staff
will have direct and close relationships with vulnerable young people.
ADA and state law employment issues are not within the
scope of this article, but certainly merit your consideration. Consult
with competent employment counsel.
Independent Contractors
You will be charged with a similar duty of reasonable care in your selection
of independent contractors: Did you act reasonably in hiring a transportation
company (or an independent driver) to carry your campers to an off-campus
activity? What was the nature of your investigation or inquiries? Did
you ask for references? Do you have any reason to believe that this person,
or organization was not capable of handling the tasks assigned? Has your
contractor conducted background checks of its staff?
Failure to scrupulously maintain independent contractor status, by refraining
from directing the manner in which he or she does the job, for example,
can have serious consequences. These consequences include fines and penalties
and the payment of taxes that otherwise should have been withheld from
an employee and, significantly, vicarious liability for the acts or omissions
of that person, which might have been avoided if the person had in fact
been treated as an independent contractor.
Training and Supervision
Training must be provided regarding equipment, activities, and supervision
of campers. Staff members must be familiar with the inherent and other
risks of the camp experience, including the activities, the environment,
and the special issues presented by the campers themselves.
The camp administration, in determining and developing competencies,
must address a variety of new activities (challenge courses, for example);
new "toys" (including at the waterfront); and new environments
(wilderness outings, and inner city or other urban projects or visits).
In addition, staff members must be familiar with and adhere to policies
of the camp, and, importantly, standards and accepted operating procedures
within the camp industry. The ACA Standards are particularly pertinent.
(See, generally, Human Resources Standards.) If an injury occurs, a competent
lawyer for the injured person will look for a violation of the camp's
own practices, policies and procedures, and to industry standards. The
act or omission of the staff person will be measured against what was
or should have been the expectations of the particular camp administration.
Staff should receive training regarding unique issues involving today's
campers and be aware of prominent issues of the time, including eating
disorders, attention deficits, and sexual misconduct. Training must include
the identification of these and other important issues and an understanding
of corrective or adaptive measures accepted by the camp.
Training and supervision of independent contractors should focus on
adherence to camp policies, and outcomes, and not otherwise on the methods
of the contractor in performing his tasks.
Staff members should receive periodic reviews of their performance and
relations with campers, by peers and supervisors. In this area, too, the
ACA standards are helpful.
Employment and Other Contracts
The camp's relationship with its staff members should be governed principally
by a written agreement of employment. The elements of such an agreement
would include at least the following:
- The duration of employment, including the start and stop dates;
- Compensation;
- Duties and expectations, including specific activities, and responsibilities
for cabins and equipment, dining room duties, general responsibility
for campers; drug, alcohol, "exclusive relationships," and
other prohibitions; acknowledgment of camp policies and standards;
- Off-duty issues, including a disclaimer by the camp of any responsibility
for injuries suffered by the staff person during such time; (and perhaps
a release signed by the camp staff member, of claims arising from off-duty
activities);
- Available insurance (including workers' compensation insurance),
and its coverage limitations;
- Causes and procedures for termination.
Camps should consult with legal counsel regarding the laws of their
particular jurisdictions that might allow "employment at will"
— that is, an employment relationship that may be terminated at
any time, for any reason, without legal consequences. Camps will find
it difficult under the laws of certain states to set out tasks and expectations,
and the consequences of failing to perform satisfactorily, and, at the
same time, maintain an employment at will relationship with the staff
person.
Minors are not competent under the law to contract, but camps may wish
to have the minor intern or counselor-in-training sign a document setting
out the terms of employment and other elements of an employment contract.
Seek the assistance of legal counsel on how you might commit a minor to
an understanding of, and compliance with, these matters.
A camp may choose to have a single form of contract for a variety of
employee functions — counselors, wranglers, maintenance personnel,
etc. Camp policies and general expectations will not vary, though the
description of duties, compensation, and certain other terms will.
Independent contractors also require written agreements. These may include
a description of the responsibilities and outcomes expected; an express
acknowledgment of the independent contractor relationship; the contractor's
agreement to release the camp for injuries or other losses suffered by
the contractor; the contractor's agreement to indemnify (agree to protect)
the camp, in the event the camp is named in litigation resulting from
the contractor's activities or otherwise; and the contractor's agreement
to obtain liability insurance sufficient to cover claims, and to add the
camp as an additional insured.
Insurance
The camp should be familiar with its own insurance policies, including
protection from claims of campers and third parties. Particularly important
will be an understanding of who is covered by such insurance (contractors?
volunteers?) and what claims might be excluded (sexual misconduct, for
example, is not included in all such policies).
Camp Agreement
Camps will (or should) have a camper agreement in which campers and their
families acknowledge and assume the risks of the activities of the camp
session; release (to the extent the law allows) the camp from claims arising
from those activities; and, indemnify the camp from claims arising out
of the camper's experience.
Marketing
The careful camp administration will be cautious in its representations
of staff competencies, avoiding the use of extravagant promises of experience
or abilities. If expertise in a certain undertaking is limited, either
avoid that activity, or be very clear in describing staffing issues to
your camp families.
If independent contractors are used, the administration should make
it clear that independent contractors will be used for identified activities
and that, while care has been taken in their selection, the camp is not
responsible for what those independent contractors do. A family that has
reason to believe that the contractor is an employee, or acting in some
agency relationship, may attempt to hold the camp responsible for that
contractor's misconduct.
Conclusion
As we said at the outset, a camp's staff is its interface with the camp
family. The policies, standards, and codes of conduct, and the beautiful
surroundings, quaint structures, and modern gear are of no consequence
if staff members do not deal professionally with the young men and women
entrusted to them. Campers and their families have a right to expect careful
selection, training, and supervision of staff. A camp's failure to address
these important issues can have serious consequences for the camp. A quality
camp operation will give careful attention to these staffing issues.
Endnotes
1 Many states have enacted statutes defining the inherent
risk doctrine as it applies to one or more recreational activities (e.g.,
many states have a "Ski Act," an "Equine Act" or a
"Baseball Act." Other states, like Wyoming, have a statute applying
the inherent risk ‘no duty' rule to a broad variety of recreational
activities. It is important to understand these laws in your jurisdiction,
and what impact they may have on your operation. For example, some laws
require that providers include a written warning in any contracts entered
into with participants. Other laws may restrict or affect the camp in
other ways. Check with your legal counsel.
Originally published in the 2005 Spring issue
of The CampLine.
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