By Charles R. Gregg and
Catherine Hansen-Stamp
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.
Conclusion
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.
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