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Standards — Friend or Foe? Revisited
Provoked in part by a proliferation of standards and offers of accreditation and certification, some in the outdoor industry are raising questions about the legal impact of standards, causing serious concerns about the value of standards for camps and other outdoor organizations. What are standards? Are they, on balance, good or bad for the camp industry? What is their legal effect, in terms of a camp’s liability for an alleged breach of a duty of care? Does that effect vary with the source of the standards — which might be developed by a voluntary standard-setting organization, a state agency, or by a camp or outdoor organization for its own use? What are the legal implications of being accredited or not accredited, when the camp is accused by an irate family of having violated a standard? In this article, we hope to assist your camp in understanding these issues. We have written on standards for CampLine in the past (see our article “Standards — Friend or Foe?” in the Spring 2006 issue). In this article, we will address more aggressively the impact of standards on your camp, from a legal standpoint.
What Is a Standard?
Standard-setting organizations develop standards or practices for a variety of audiences, including members of that organization, an industry or industry segment, and an interested public. So, too, an individual organization develops standards, practices, or policies for itself and its employees and participants. Industry guidance — if well-crafted and consensus-based — and an orga¬nization’s thoughtful internal guidance can be of great assistance to organizations endeavoring to run a quality program. Standards can be objectively measurable — for example, those that address weight-bearing loads and structural capacity. Others can be more general and subjective — for example, those addressing conduct or behavior. Good standards are those that leave room for judgment, allowing deviation from the standard or differing approaches to meet the standard, if appropriate. Certainly, this flexibility is more applicable to standards of conduct, screening, supervision, etc., for example, than to matters of engineering capacities and strengths. Some standards are simply a requirement that the camp or other organization have in place a plan or program to meet a specified contingency. While suggestions might be provided, the standard itself is merely that there is a plan, perhaps with a qualifier that the plan be “adequate” or “appropriate,” or some other adjective that leaves to the organization or a reviewer the determination of its ultimate adequacy.
Some in the outdoor industry have suggested that standards — whether developed for an industry or for an organization’s internal use — be called something other than standards. One dictionary defines a standard as “an accepted measure of comparison for quantitative or qualitative analysis.”1 The Association for Experiential Education (AEE) states that standards are “. . . key criteria that can be used to evaluate the overall quality and effectiveness of an adventure-based program” and “statements of acceptable practice.”2 Alternatives to the term “standards,” in some applications, might include “practice,” “policy,” or “guideline.” A “practice” is defined as an “established way of doing things”;3 a “policy” as “a plan or course of action, designed to influence and determine decisions or actions” or “a guiding principle or procedure considered to be expedient, prudent or advantageous.”4 A guideline might properly be defined as a “statement of policy or procedure”5 or “an official recommendation indicating how something should be done.”6
The important point in this exploration of terms is that al¬though they may have certain meanings to certain readers, the most important meaning of the term is that supplied by the author. And more important than the label someone puts on a term is the substance of the guidance, how it is crafted, and whether it was appropriately heeded. For example, if an organization labels its written guidance as a practice, but it is written as a mandatory requirement, it will probably be viewed as a requirement by a court or jury. As a result, an organization — whether your own camp or a standard-setting organization — should be absolutely clear about what is intended by these declarations, and the content of any guidance should match its intent. Does the guidance simply contain announcements of how others are operating (without addressing the issue of compliance)? Are they expectations or requirements? Is there room for deviation or alternative oppor¬tunities to comply? Are there consequences for failure to adhere to the guidance? These and other issues, as applicable, should be appropriately addressed.
A surprising label offered by some in the industry is the term “best practices.” Some have suggested that “best practices” serves as a superior alternative to the term “standards.” The term “best,” however, implies an absolute or highest practice — something impossible to achieve or determine with any confidence. (Family lawyer to camp manager: “Those aren’t the best practices, are they? What about these?”) Expecting someone to conform to “best practices” is unfair and unwise.
Duty of Care
The issue for camp management is, of course, its endeavor to run a quality operation and, importantly, appropriately caring for its campers and families in the course of running its programs. Do standards or other guidance help in this endeavor? Bottom line, in a negligence action, the judge will determine whether a duty of care exists and what that duty is. If the judge finds that a duty exists, the fact finder (a judge or jury) will hear testimony and review evidence to determine whether the defendant breached that duty, and if so, whether that breach of duty caused the harm. The defendant’s conduct will be compared to that of a reasonably prudent person/organization acting in the same or similar circumstances. The camp’s duty, generally, is to exercise reasonable care to protect its campers from unreasonable risks of harm (the camp’s standard of care). In evaluating whether or not the defendant (camp) met the standard of care, the fact finder will consider (aided or confused by [possibly conflicting] testimony of experts), among other things: standards or practices in the industry (including a voluntary standard-setting organization’s standards, or the practices of similar organizations in the industry), statutes, regulations, the organization’s own internal polices, etc. These are the measuring sticks of our legal system. A reasonable practice, generally speaking, is one that is followed by respected and successful practitioners in the industry. Standards developed by a standard-setting organization — if the product of thoughtful research and deliberation, and subject to the scrutiny of consensus groups and others — announce, with varying degrees of intensity, those reasonable practices. These announcements are not necessarily minimum or maximum expectations but what may be reasonably expected of you, based upon what your peers are doing.
Legal Effect of Standards
There is no question that standards set by voluntary standard-setting organizations — ACA, AEE, or the Climbing Wall Association (CWA), for example — can have a legal impact, and in fact, can create legal exposure and issues for organizations.7 This can happen if standards are poorly or inaccurately written, conflict with standards set by other standard-setting organizations, are inappropriately rigid or prescriptive, etc. Even if a standard is well-written, an organization might simply fail to follow it. The standard can then be used in litigation against a defendant whose failure to follow a standard, the plaintiff claims, was the proximate cause of his harm. In other words, the plaintiff can claim that the defendant’s failure to follow a particular standard (set by ACA, for example) is evidence of a defendant’s negligence. This can also happen if a defendant fails to follow an applicable statute or regulation or a standard or practice in the industry. Importantly, this same result can occur if a defendant fails to follow its own internal standards, policies, practices, or whatever they label their “way to do things” — whether oral or written. We have observed this over and over again in the case law coming down from jurisdictions across the country. (Note that, in some cases, violation of a statute [law] that is determined to be the cause of a plaintiff’s harm can even be considered “negligence per se” [actual evidence of negligence].)
Alternatively, these statutes, standards, and practices can also provide evidence that the organization has met the standard of care — that is, acted reasonably under the circumstances. In other words, industry standards or practices developed by a voluntary standard-setting organization, or guidance developed by an organization for its own internal use, can play both ways.
To Be or Not to Be Accredited?
If you are accredited by a standard-setting organization in your industry niche, will you have greater potential legal exposure in a negligence case? Is there a difference in the standards’ legal impact on your operation? Perhaps; but all organizations are potentially impacted by the standards — even those that are not members of the organization. For example: Your organization is formally accredited, and you have signed off on your commitment to following the standards. You fail to follow a standard, resulting in an injury that a plaintiff urges was caused by your failure to follow that standard. The plaintiff argues that you should have known better. This argument could also be made against an organization in the industry niche that is not accredited — or even one that is not a member of the organization. The argument could simply be that the standards are evidence of the accepted practices in the industry, you should have known about them, and your failure to follow them caused the injury. On the flipside, accredited or not, your efforts to heed the standard-setting organization’s standards could provide good evidence in the same situation that you met the standard of care, and did not breach any duty owed.
Not a Safe Harbor
Keep in mind that industry practices, or developed industry standards, are not always the right or only way. In fact, courts have found an entire segment of an industry negligent in the conduct of a standard or practice.8 So, ultimately, the way “everyone is doing it” might not be okay. This is another important reason for you to regularly review your own internal guidance with input from your legal counsel, as well as participate in the development or revision of any published standards in your industry. Standards, whether internal or external, should be “living” and continually re-assessed based on changing practices. Standard-setting organizations interested in continuing to improve the quality of programming should continually review and revise their standards. In doing so, they must seek input from experts, including attorneys sensitive to the legal implications, as well as day-to-day camp practitioners, regarding the practicality of the standards in actual operating cir¬cumstances, and avoid the “zero tolerance for deviation” approach except in the most serious circumstances. ACA representatives inform us that these are some of the things ACA considers as it currently undertakes a comprehensive revision of its standards and openly seeks comments from interested camps or other parties.
Guidance or directives — whether crafted by industry segments or organizations or imposed by governments — are not going away. Quality organizations will continue to look for guidance from their industry, their peers, and craft it in their own organizations. They do this in their effort to run quality programs, to satisfy insurance company requests or requirements, to avoid unneces¬sary or misdirected state or federal regulation, and for a myriad of other reasons. As a result, whether they agree with them or not, organizations must understand the impact that standards or other guidance or directives will have on their business and on their ultimate legal exposure.
Faced with how “that place down the river does things,” camps will decide (whether they are accredited or not) to comply with ACA Standards, as applicable — and if not, to have a good reason why not. Specifically, camps must understand the significance of standards (including those of ACA and other organizations), how to navigate them, and importantly, how to contribute to their modification if standards miss their intended mark.
Good guidance — whether provided in published industry standards or as developed by an organization — should be rel¬evant, obtainable, applicable, and appropriately flexible, so that guidance is indeed constructive, rather than working to increase legal exposure. Thoughtful internal and industry guidance will assist camps in their proactive endeavor to manage risks and run responsible and quality operations — something most organiza¬tions want to do. Understanding the relative value, impact, and effect of standards is integral to that endeavor.
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 rel¬evant state and federal law as well as considerations regarding their specific business or operation.
*©2011 Charles R. “Reb” Gregg and Catherine Hansen-Stamp
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 firstname.lastname@example.org; 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 email@example.com; www.hansenstampattorney.com
1. Webster’s II New Riverside University Dictionary (1988).
2. AEE Manual of Accreditation Standards for Adventure Programs, 5th Edition (2009), p. 7, AEE Policies & Procedures Manual, 4th Edition (2005), p. 19.
3. Encarta (online) Dictionary
4. Webster’s II, supra.
6. Encarta, supra.
7. See discussion in our 2006 Campline article on standards, identified above.
8. T.J. Hooper, et al. v. Northern Barge Corporation, et al., 60 Fed. 2nd 737 (N.Y. 2nd Cir. 1932), cert. denied, 287 U.S. 662 (1932).