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Legal and Partnering—Really?
The theme for the 2006 ACA Conference — "Partnering With Parents" provides a springboard for a frank discussion of certain legal and practical issues between camps and their camper families. In the camp industry, and in the recreation and adventure field in general, the word "legal" is not automatically associated with the concept of "partnering"! However partnering can be an effective approach to legal and risk management issues. The concept is simple: shared expectations regarding personal growth, fun, and adventure — and an understanding and management of the associated risks — can best be achieved by collaboration between the camp and its families.
The exchange of important information between camps and camp families can have a profound impact on all phases of the camp experience — from that earliest general marketing to events around a critical incident. This information exchange is reciprocal. The camp provides information to campers and their parents about the camp, its mission, goals, activities, risks, and other important items. Some of this information may be a bit intimidating, if it is a fair and accurate description of the camp experience. The parent is then asked to provide important information to the camp to determine the child's suitability for the experience — information about the camper's expectations, health, age, physical condition, etc. The camp and camp family owe each other a mutual exchange of frank and honest information.
The camp, of course, will want to describe the camp experience in a way that attracts campers interested in what the camp has to offer and in numbers which are profitable. You (the camp) want families who understand the camp's many benefits and who also understand the camper's personal responsibilities, and the activities, risks, dangers, and inconveniences to which the camper may be exposed. At the same time, the camp wants information from the families so that it can better understand and deal with the child.
A camp that has taken the time to disclose valuable and accurate information, (even if some of it might cause a family some concern) — and calls for disclosure of appropriate information from families, can expect good rapport, trust, and confidence. In essence, this collaboration or "partnering," if accomplished fully and fairly, will enable good preparation and good communication, and hopefully minimize the risk of accidents or injuries. Further, well-informed campers and their families will be better prepared to deal with surprises, discomforts, and accidents and more likely to attempt an amicable resolution of disputes.
When Does This Partnering Occur?
Partnering is created before the camp experience, builds through the camp experience, and continues beyond, including through any unfortunate event which may otherwise cause some conflict between the camp and the families. At each of these points, respectful collaboration can be the difference between effective problem-solving on the one hand and a breakdown of communication and antagonism on the other.
Marketing and early communications with the families should include the tough truths, including a disclosure of the risks of camp activities. Materials should clarify that campers and their families share in the responsibility for the camper's well-being, including the determination of camper suitability for the camp experience and for understanding and managing the risks.
It is essential to have good communication with the family and the child during camp. Timely and accurate exchange of information provides the basis for trust and confidence as matters are addressed. If a serious incident does occur, the parties will be more inclined to listen to their "partner" and understand their respective positions, allowing collaboration in problem-solving. The parties might agree, for example, on an investigation into what happened and why, and amicably negotiate fair compensation for any losses.
But I Should Protect My Campers . . . and I Don't Want to Scare Folks Away!
There is an important tension between legal and marketing. The Law expects — and camp families expect — the truth regarding the camp experience, and its possible (probable) injuries and surprises. The camp's obligation is to manage risks — not eliminate them. Parents need to know and understand this from the outset as they consider the appropriate camp for their child. The camp is not and cannot be an insurer of everything that might go wrong, and no responsible camp will guarantee the physical or emotional safety of a camper in its care. At the same time, the camp can provide positive and accurate information to camp families about the camp's strengths, mission, and unique attributes. This "balance of information" can fortify the partnering relationship.
A thoughtful camp will declare at the outset its commitment to the growth and development of the child and at the same time recognize the attendant risks and potential for injury or some other loss. The camp and the family will share an understanding of where, for example, to draw a line between ordinary adolescent carelessness and experimentation, and destructive behavior, including teasing or bullying. Are parents and camps on the same page as to where such a line should be drawn? Can they be? Not without some serious dialogue on the subject.
Is Legal and Risk Management About Protecting the Camp and its Assets?
It is that, partly, but legal concerns go well beyond protecting the camp. The main concern and objective for camp management should not be the avoidance of legal liability, but rather, running a quality operation. Running a quality operation includes dealing fairly with campers and their families, and reasonable management of the risks of the experience — including the risk of losses to both the camper and camp. If a quality program is put on the ground, legal issues generally will take care of themselves. In other words, they will be addressed in the equation.
With respect to protecting the camp, however, a question might fairly be asked whether seeking releases or waivers from camp families is the act of a "partner." The law generally protects the camp from the inherent risks of its activities, and those which might otherwise be assumed by the camper. But does "a partner" ask to be released for breach of a duty of care to a child? Is trust going both ways in this contractual arrangement?
Legal Implications — The Delicate Partnering
In the partnering relationship, camp and family must each give up some rights they might have had, in order to promote a context in which the child can be best served. The waiver or release is one of those compromise areas, and one which is awkward for many camps. Camps may say — "I don't want to be released for my own negligence — I want to take responsibility if I am at fault!" For camps that choose to use a release or waiver, the choice is made, not to have an excuse to be negligent, but to deal intelligently with the murky legal distinctions between negligence (camp fault) and the inherent risks of adventure and recreation activities — for which camps are not responsible. Camps can partner in this area by being honest and direct with camp families — explaining the purpose of the document, and its valuable role in providing accurate information about the activities, risks, and camp family responsibilities, as well as its role in shifting some liability away from the camp. Does this translate into "partnering"?
An alternative to the release (and one that is mandated by some federal land managers for those who are permitted on some federal lands) might be to limit the document to a description and declaration of the understanding of, and assumption of inherent risks only. This is an unusual and limited scope for such a document, but camp management might consider it more consistent with the "partnering" approach.
Obviously the camp must "partner" with qualified legal counsel to work through these legal issues in an informed and pragmatic way and to be clear and direct in the drafting of the document.
How does the camp and family create a relationship in which camp and family "win" together and suffer disappointments together? Does the camper have interests that are different than those of the parents? Is the camper a "partner"? If well implemented, partnering will reduce surprises, disappointments, and anger; and create a relationship of trust and confidence to better maintain the child during the camp, and hopefully resolve even the toughest issues of fault and compensation that may arise from an unfortunate event.
*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.
© 2005 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. Gregg is an active speaker and author in the field of managing risks of legal liability in education and recreation programs. He can be reached at 713-982-8415 or e-mail email@example.com; www.rebgregg.com.
Catherine Hansen-Stamp is a practicing attorney in Golden, Colorado. She consults with and advises recreation and adventure program providers, recreational product manufacturers, and related organizations on legal liability and risk management issues. Hansen-Stamp speaks and writes on these issues, both regionally and nationally. She can be reached at 303-232-7049, or e-mail firstname.lastname@example.org; www.hansenstampattorney.com.
Originally published in the 2006 January/February issue of Camping Magazine.