When Behavior Becomes a Legal Issue

©By Reb Gregg and Catherine Hansen-Stamp*

Introduction

Behavior issues continue to be a prominent and growing concern of camp managers. Today's campers and staff present new challenges. They come to camp accustomed to being tightly supervised and managed at home and school, medicated for a variety of disorders, exhausted, and immersed in a virtual, digital world — with little outdoor adventure experience or contact with the natural world. And the focus is not entirely on campers and staff. Parents are requiring more and more attention as they demand a larger role in the lives of their children while at camp.

This article will discuss setting expectations with respect to the behavior of campers, their families, and staff. We will suggest some content and means of communicating those expectations, the enforcement of behavior requirements, and the hazards of failing to enforce them. We will emphasize the need for clarity of communications in this area, including a shared (by camp and families) understanding of how the camp expects to act in certain situations. We will also discuss a camp and counselors' legal obligations and duty of care regarding supervision and control.

How and why is this a legal matter? A family might claim that a camp has violated a contractual obligation or legal duty of care by not recognizing or adequately addressing a behavior issue — resulting in some emotional or physical trauma. A more aggressive camp might be charged with having unfairly disciplined a child — embarrassed a child before other campers, physical roughness, or sending a child home without a refund of tuition, for example. A staff member whose behavior or performance has been reviewed may not have been dealt with to a parent's satisfaction. A parent requiring more attention from the camp than his or her child might claim he or she has been improperly denied access to the child or to information about the child. Behavior issues have legal implications.

The focus of this article again emphasizes our belief in the importance of that vital "information exchange" flowing between a camp and its camper families, and between a camp and its staff. Effective and accurate information exchange is a key risk management tool in managing and minimizing the risk of loss to both campers and to the camp — and avoiding surprise, hurt, and disappointment.

Legal Duty of Care

A camp's duty to keep its promises — outlined in a contract or otherwise — should be clear. A camp's legal duty to take care of a child is not as well understood. As we have discussed in previous articles, a camp's legal duty of care weaves in and out of the camp experience, changing with activities, circumstances, relationships, and environments.1 A camp can establish and influence its legal duty by announcements, promises, and other expectations of care which it promotes or allows to exist. Other factors can also affect the duty of care.2 Unless so modified, the camp's legal duty is to act as a reasonable camp would in protecting campers from unreasonable risks of harm. Similarly, a camp staff member's duty is to act as a reasonable camp staff member would act in the same or similar circumstances. The test of reasonableness is objective. The test is how one acted — not what one intended, or felt. The "reasonable person" is a fiction that is defined by a jury. A legal duty — and its breach — is the core of a negligence claim.

Certainly, the camp and camp staff need to follow applicable laws in supervising children — for example, state reporting laws regarding suspected abuse or neglect or camp licensing requirements. In addition, staff should honor a camp's own internal policies and applicable ACA Standards (as these can form or influence the duty of care). However, the law does not require that a camper be protected from all harm or that the camper be protected in all circumstances. In fact, the law recognizes risks of harm that are "reasonable." In past articles, we have discussed risks of harm considered reasonable (including those which are inherent in the activity, and arguably, those which are expressly assumed or waived).3 In some jurisdictions and in some instances, a co-participant, staff member, or other party's negligence is even considered a risk inherent in the activity — what is "reasonable" takes on a special meaning. A camp has no duty (varying, of course, based upon a jurisdiction's law) to protect participants from these "reasonable" risks. On the other hand, unreasonable risks include those foreseeable risks which are considered unacceptable to the community (an enlargement of the inherent risks, for example). Even those courts which assert that a camp or camp counselor has a duty of in loco parentis — to provide the level of care which a parent might — require only that the camp act reasonably. Courts consistently recognize that growth and development include some risk taking, disappointments, and injuries, and that a camp is not an insurer of safety. Nonetheless, behavior issues pose challenges to a camp committed to keeping its promises and endeavoring to meet its legal duty of care.

One unique aspect of the camp environment is the fact that camp staff (particularly in geographically isolated locations) often do not leave the camp at the end of their shift and go home. Camp staff may be "off duty," but still "on premises" throughout the camp season. What is an "off duty" staff member's legal duty of care to the campers? While they may not be responsible for certain "on duty" tasks (instructing horseback-riding or leading a hike, for example) they may still be responsible, to some degree, for the general welfare of the campers. What if, for example, an off duty counselor is heading out on her mountain bike to take a ride, and sees a young camper unattended next to the lake? First of all, it is likely that an on duty counselor is not attentive in this situation. A reasonable off duty counselor would and should respond, we believe, and get the stray camper back to his or her cabin or group. If not, the camp may be exposed to claims of improper supervision on the part of both the on duty and off duty counselor. Importantly, camps should have clear policies on these issues and address them during staff training. Off duty / on premises staff should understand their role and responsibilities in the event of an emergency, such as the one described above — or otherwise. If staff adhere to the policies, the likelihood of problems is significantly reduced. In addition, if a problem does occur, a court is likely to examine whether the camp has policies that identify supervisory roles, and whether those policies were followed, in determining whether there was a duty and if that duty was breached. Check your state law and any camp licensing requirements on this point. Note: As discussed below, parents must understand that it is not realistic to expect that on duty staff will provide constant and immediate supervision and control of campers at all times. The camp's limitations and intentions in this regard must be clear, to both staff and families.

Expectations and Rules for Campers, Families, and Staff

Setting clear behavior expectations, rules, and policies (sometimes referred to together in this article as "rules") for campers, families, and staff will assist the camp in its efforts to meet its legal duty of care to its campers. How are behavior expectations established? Behavioral norms may be developed over time as a camp's culture evolves and is embraced by generations of camp families. A camp may be lax in some areas and strict in others; word can quickly circulate, and the norms perpetuate themselves. Marketing, including text and images, may send (sometimes unintended) signals regarding camp practices. Be aware — and wary of — these aspects of your camp culture and its image. A more thoughtful, proactive camp, armed with the advice of experts, common sense, and years of thoughtful observation (including some mistakes), will strategically formulate "rules" or a code of conduct for campers and staff. These rules are written down, made known throughout the camp community, reviewed regularly, and consistently enforced. The best rules leave room for some judgment. Zero tolerance rules must be very carefully considered and reserved for only the clearest and most egregiously bad conduct. Some camps will have the affected persons — campers, staff, and perhaps family — "sign off" on such rules or a codes of behavior: that is, literally sign a "contract" that promises a certain level of performance and acknowledges the signer's understanding of the consequences of failing to comply.

Campers and Minor-Aged Staff
A camp should develop rules or expectations for campers and minor-aged staff that are clear and limited in number (so they can be better understood and retained) and describe (in those rules or elsewhere) the consequences of a camper's deviation from those rules. The camp should present these rules to the parents of campers and minor-aged staff members, urging them to read the rules with their son or daughter to assure that they are understood. Some camps ask that children — even young children — sign an agreement containing rules and expectations. Even though the minor child is not capable of entering into a legally binding contract, as mentioned above, the document can be an effective way to drive home to campers the importance of the rules (and may have some legal value in the event of subsequent litigation).

Parents
The expectations of parents' behavior and policies for notifying them of behavior issues at camp may be sent in a letter to parents, agreed to in a parent's terms of agreement with the camp, or displayed prominently on a camp's Web site — the medium should be reliable, and there should be some means of confirming that parents have read these expectations and understand them.

Staff Members
Camps should establish rules of behavior for all staff. The camp should craft these in a manner that reflects the staff understands them and intends to abide by them. Appropriate vehicles for that documentation could be a staff code of conduct, an employee or training manual, or an employment agreement. Considering differing state laws on the "employee-at-will" doctrine and other employment issues, camps should consult with their legal counsel in crafting these documents.4 These rules should be reviewed carefully during staff training. The rules should be clear about the consequences of a violation, which might include immediate separation and a denial of future employment. The staff carries the double burden of adhering to a set of rules of behavior and understanding and enforcing rules applicable to campers.

General Content of the Rules/Policies
The content of camp behavior rules or policies will reflect the camp's culture and values, and might include: campers' or staff members' general attitude (cooperative spirit and demonstration of loyalty to the values of the camp); relationships with others (avoiding exclusive or inappropriately intimate relationships, avoiding conduct which demeans or embarrasses another, preserving the privacy of others); appearance (dress, piercings); language; prohibition of drugs and smoking; avoidance of sensitive issues (sexual, political, other); and abusive and intentionally wrongful, certainly criminal, conduct.5 All such rules should open and perhaps close with an admonition that the values and reputation of the camp are to be preserved and that conduct that reflects unfavorably on the camp is prohibited. As part of the rules, or elsewhere, the camp may choose to reserve the right to dismiss a camper, in its discretion, under certain circumstances — for example, a camper who presents a safety concern or medical risk, is disruptive, or engages in behavior detrimental to the program. This can give the camp some room to exercise its judgment, outside a list of specific rules.

Sexual misbehavior is among the most challenging of the behavior issues. As stated above, the camp should develop rules and policies for appropriate and inappropriate behavior that are understood by staff, campers, and their parents (see ACA Standards HR-11 and HR-17.) Staff should also be trained on appropriate (and inappropriate) contact with campers, and importantly, on recognizing behaviors that may indicate a camper has suffered sexual or other abuse before or during camp.

The rules will include matters pertinent to off-campus activities and out-of-season contacts (face-to-face and by the internet, for example).

Families must understand the practical limits of what the camp staff can and are willing to do in fulfilling their supervisory duties. "24/7 constant supervision" is not a reality, as any parent knows. A responsible camp will describe very carefully what it will do in the area of supervision, and what, as a practical matter, it cannot do. The child (and parents) must accept some responsibilities in this regard.

Parents should be told what contact will be allowed with their child, and how frequently; they might be asked to limit inquiries about the child except in predetermined circumstances.

Parents should be told under what circumstances they will be contacted concerning events at camp that may affect the child, and advised that the camp retains considerable discretion in this regard (see ACA Standard HW-19).

Parents should be told under what circumstances the camp will contact outside law enforcement or other government authorities (including incidents of abuse or neglect, or reports of such incidents).

The camp's rules for staff, campers, and families should explicitly provide that decisions regarding violations are made in the camp's sole discretion. These decisions might be described as final (or the camp may describe some appeal mechanism).

So, the camp sets the expectations, preserving and declaring appropriate discretion at almost all levels regarding the behavior of campers, staff, and even families. If a family does not trust the camp to exercise proper judgment in these areas, the child is in the wrong camp. The point of a camp's careful articulation and presentation of expectations is to reduce surprises when the camper, staff, or family is confronted with a violation of the rules. That is, they are prepared for the action the camp takes and cannot complain that they were uninformed of the expectations, or the consequences of a violation. The advance notice is fair, and it can prevent the kind of surprise, anger, and frustration that produces lawsuits and damages a good camp's reputation.

Applicable ACA Standards

Staff training on appropriate behavior and camper supervision is an important tool for camp and staff in the effort to meet their duty of care and to keep their promises.6 The ACA Standards give us helpful guidance in these areas, including HR-14, 15 and 16 — staff supervision, staff and camper relationships, and behavior management; HR-7 — staff training regarding their own behavior; and HR-11 — behavior management and supervision. As noted above, and important for our discussion, bad or simply unanticipated behavior can severely challenge the camp staff in their exercise of their duty of care. Staff and campers must understand the permissible limits of marginal behavior, and staff must be trained how to intervene in sensitive areas (see standard HR-17). Staff behavior management training should include the identification of the beginning of emotional and other conflicts, and maintaining the proper relationship with the campers — including modeling good behavior and adherence to camp values and policies (see standards HR-15, 16, and 17). Behavior management training is particularly important in this era of "the virtual kid," who comes to camp over-sanitized medically and emotionally, and often delayed in recognizing risks, using good judgment to manage them, and accepting accountability for under-performance. Note that staff must be made aware of behavioral issues associated with items disclosed on the camper medical form — for example, side effects from medications, a disclosed behavior issue, or a medication "break" for an ADD condition — to allow staff to effectively deal with these challenges.

The camp should be clear in its expectations of staff regarding staff reporting requirements concerning behavior incidents. There will be issues that the staff are allowed to deal with, and others requiring senior staff involvement. Staff will be trained, of course, to distinguish between real problems requiring aggressive intervention and those which offer opportunities for collaborative problem solving and teaching. In any event, it might be good policy to require all behavior related incidents to be reported internally promptly after the occurrence. This would, among other things, allow the camp to assess the type and severity of different behavior related incidents, in what instances a report to the parent is appropriate (or required by law to authorities), and provide staff training opportunities. Again, there must be clarity for campers and families regarding where lines are drawn — including a camp's right to exercise its discretion — so there are no surprises when the camp acts or chooses not to act. Drawing those lines and training staff to recognize them and act accordingly are as important as anything the camp will do in meeting its duty of care to campers and families.

The rules themselves have legal implications. Persons affected by the rules are entitled to believe they will be enforced. Particularly, parents of a camper (or minor-aged staff member) may assume that the camp is caring for their child under the announced rules and codes of behavior. A parent might fairly argue that he or she had a "deal" (contract) with the camp that the rules, training, and enforcement would protect the child from himself or herself, and from other campers and staff. An attorney for a camper mistreated by another camper or staff will very quickly turn to the camp's own rules and policies to assess the strength of his or her case against the camp. If the camp is intimidated by this prospect, the answer is not the elimination of the rules. It is to develop the rules thoughtfully, with regard for what is practical and do-able (with appropriate flexibility), educate campers, families, and staff to those rules, and enforce them. The camp community deserves nothing less.

Conclusion

Tension exists between allowing natural and healthy development in a camp environment, (perhaps the best managed environment in which these things can happen), and conduct that crosses the line, is potentially harmful or illegal, and simply should not to be tolerated. The two poles are relatively easy to identify as a camp thoughtfully develops its rules and policies. The challenge for camp management is to establish strategies for identifying and dealing appropriately with conduct that falls somewhere in between the two poles. The law books are replete with examples of first time, not reasonably anticipated misconduct (a spontaneous fight between two campers, "horsing around," sexual teasing, etc.). These and other such incidents, courts have found, occur beyond the range of reasonable staff supervision and could not have been reasonably anticipated — at least at that time and in those circumstances. The courts recognize the realities of camp life — including the unacceptable expectation of 24/7 constant supervision.

The policies and rules we have discussed above, and others, serve to establish a foundation for reasonable behavior and accurate expectations for camps and their staff, campers, and campers' families. The camp can endeavor to address the gray areas by openly retaining the right to exercise its discretion; allowing its staff to appropriately exercise judgment; training staff on behavior issues; articulating staff, camper, and camp families' responsibilities to the camp experience and environment; and announcing the limits of the camp's supervisory role. In doing so, the camp takes steps to fill realistic supervisory gaps and shift some of the responsibility for right behavior to the child, the family and to its staff members.

*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.

Notes

  1. "Camp Risk Management: Sources and Strategies," Winter 2010 CampLine; "A Camp's Duty of Care — In Good Times and Bad," Winter 2009 CampLine; "Reasonable Supervision and the 'Safe' Environment—What Are the Issues?" Fall 2005 CampLine.
  2. See: "A Camp's Duty of Care — In Good Times and Bad," Winter 2009 CampLine, cited in endnote 1, above.
  3. See, generally, articles cited in endnote 1 for discussion of these issues.
  4. Please see our CampLine Fall 2007 article, "Avoiding Staff Surprises," for more detail on these issues.
  5. Camps should review any applicable state camp licensing laws and regulations, and the ACA Standards for additional information on the suggested or mandated detail and content of rules and/or policies for parents, campers, and staff.
  6. Please see our Spring 2009 CampLine article, "Staff Training and Risk Management — Key Risk Information for Front Line Staff."

Charles R. (Reb) Gregg is a practicing attorney in Houston, Texas, specializing in outdoor recreation matters and general litigation. He can be reached at 713-982-8415 or e-mail rgregg@gregglaw.net; www.rebgregg.com. Catherine Hansen-Stamp is a practicing attorney in Golden, Colorado. She consults with and advises recreation and adventure program providers on legal liability and risk management issues. Hansen-Stamp can be reached at 303-232-7049, or e-mail reclaw@hansenstampattorney.com; www.hansenstampattorney.com.

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