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The What and the Why of Camp Releases
While camps are certainly accountable to the families of their campers, they deal most fundamentally with children, minors, in delivering the traditional camp experience. Camps understand that they have responsibilities to minor campers, and try—through compliance with ACA standards, careful hiring and training of staff, maintenance of equipment and facilities, and in many other ways—to fulfill their responsibilities and to run a quality program. As a result, the notion of collecting a "release" of liability from campers or their parents, up front, can be difficult for camps and families to understand or accept. We will be addressing these important and difficult issues at the upcoming 2007 ACA National Conference to be held in Austin, Texas. We hope you will join us there and provide your thoughts as we discuss these issues and provide a perspective on pertinent legal trends and decisions across the country.
Duty of Care
The duty of a camp to a minor child is generally one of "reasonable care." Articulations of this duty vary, including the often misunderstood doctrine of "in loco parentis"—in the place of the parent. Thankfully, even the courts, which have declared this duty to be "the highest duty" (that is, one that exceeds reasonable care), acknowledge that parents, camps, or other organizations supervising children are not required to insure a child's safety or completely eliminate the risks of physical or emotional injury. Courts understand that appropriate supervision includes exposing the child to adventure and risks that enhance the emotional and physical development of the child. As a result, the duty is to reasonably manage the activities and risks of the camp experience. Personal growth, including skill development, would not be possible without these risks, which are inherent in the camp experience. We examined these issues in detail in our Fall 2005 The Campline article: "Reasonable Supervision and the ‘Safe' Environment—What Are the Issues?"
The characterization of the duty and its limits varies somewhat, depending, of course, on the laws of the specific jurisdiction, and factors such as the custody and control aspects of the relationship, the risks to be encountered, and the age of the child. A camp acts through its staff and will generally be held vicariously responsible for the acts of its staff, acting within the scope of their employment. As a result, the standard of care most commonly described by the courts is this: A camp staff member must act as a reasonable camp professional, or other staff member, would act in the same or similar circumstances. A staff member that fails to meet this standard of care may be found guilty of negligence as may the camp, through this doctrine of vicarious liability. Negligence is the breach of the duty of care, which produces a loss. In determining whether a duty was breached, a court may look, among other things, to standards or practices in the industry, an organization's own internal practices or representations, or an expert's characterization of appropriate or reasonable conduct (Hansen-Stamp and Gregg 2005).
Another Aspect of the Duty Equation
A family's expectations regarding the camp's responsibility for the child's well being will be influenced by the length of the stay at camp, the degree of control to be exercised, the nature of the activities, and the age of the child. In addition, a camp's well intentioned (but perhaps misguided) assurances of safety, or its failure to address the realities of the risks to which the child may be exposed, may further elevate the family's expectations. These factors can fuel a lawsuit or complicate the camp's ability to defend itself in these circumstances. These issues emphasize the need for camps to provide good, accurate, consistent, and balanced information to campers and their families before, during, and following the camp experience (Hansen-Stamp and Gregg 2006).
Defenses to a Claim of Negligence
Defenses to claims of negligence include, among others, the following:
A. The camper's injury resulted from an inherent risk of the camp experience and not from provider negligence or other misconduct.
Inherent risks include those that we seek (exciting whitewater, steep terrain) and those that we don't seek (falling rock, bad weather)—all of which come with the territory. An inherent risk is one which is such an integral part of an activity that, without it, the activity would lose its fundamental characteristics, including, its value and appeal to those producing and engaging in it. In most jurisdictions, a camp and its staff have no duty to protect the minor camper from the inherent risks of adventure and recreation activities, and no liability for harm resulting from those risks. (This is oftentimes referred to as "primary assumption of risks.") The classic rule is that in agreeing to participate, a camper assumes the inherent risks of those activities, whether those risks are known or unknown. The nature of risks which qualify for this inherent risk "no duty" rule vary from jurisdiction to jurisdiction, as does the courts' interpretation of this doctrine, but in many cases, it is applicable to minors.
B. Even if the camp or its staff had a duty to protect the child in a particular case, the minor's contributory fault was the cause of all or part of the harm.
In many jurisdictions, a child's proven carelessness or other misconduct (including the child's voluntary and knowing "secondary" assumption of risks) can be compared to the fault of the camp, resulting in the decrease or elimination of the camp's liability, under a state's comparative fault laws.
C. The child's parent signed a release of liability, agreeing, in advance, to release the child's right to bring a negligence claim against the camp.
In a few jurisdictions, a parent (either by statute or through case law) is able to release these rights on behalf of his or her child. (Colorado and Alaska recently passed laws which allow parents and guardians to sign such releases.) In those jurisdictions, a camp may ask the court before a trial (typically in a hearing on a "motion for summary judgment") to dismiss a suit, filed by the parent on behalf of the child, alleging that the camp's negligence resulted in harm to the minor camper. If the court upholds the release, the case against the camp may be dismissed. It is important to note, however, that the vast majority of states in the U.S. either have not dealt directly with the issue or have prohibited such releases.
(Minors [in most states, those under the age of eighteen] are generally incompetent to enter into a contract. A release [an agreement not to sue], signed by a minor, is unenforceable. Upon reaching adulthood, an individual may ratify an agreement of release he or she signed as a minor, but more typically the individual disaffirms the release upon reaching adulthood, by filing suit.) Even in jurisdictions that have ruled that a parent cannot release these rights on behalf of the child, the jurisdiction may enforce a parent's agreement to release his or her own rights to sue for negligence, as a result of injury to the child.
Use of a Release with Minors
What are these releases, why are they sought, and what do they say about a camp's culture, ethics, and commitment to the camp's families? If other defenses to claims are available with minors, why should a camp consider asking parents to release the rights of their child, or their own rights to sue the camp for its negligence? As we noted in our January/February 2006, Camping Magazine article "Legal & Partnering — Really?" — this is a delicate aspect of partnering with parents which we advocate.
Release language may be incorporated into a larger agreement — a camper agreement for example—which describes activities and risks, calls for an acknowledgment and assumption of those risks, and addresses other aspects of the relationship among the camp, the family and the camper. The sole purpose of the release clause is to release the camp and others named as released parties (staff, for example), of legal liability for future negligence — the failure to meet the applicable duty of care. In jurisdictions allowing such releases, organizations, including camps, are generally not allowed on public policy grounds to release their liability for more serious misconduct — such as gross negligence or willful, wanton, or reckless misconduct.
So when a camp presents a family with this release language, it is saying: "We want you to agree, now, that you will not sue us if our carelessness hurts, or even kills, your child." If the parent asks you to explain this release, what do you say? If you have thought carefully about the issue (and you should have) you might say that your purpose is to deter frivolous suits, which occur too frequently in our current litigious society. A frivolous suit might be one arising from, for example, an inherent risk of the activity, not the carelessness of the staff person. In addition, you can inform them that there is often a murky line between injuries resulting from inherent risks (concerning which the camp may have no duty) and those resulting from a camp's fault or negligence (a breach of the camp's duty). You, the camp, wish to reserve to yourself the judgment as to how the injury occurred and if and how to compensate the injured child, because you understand camp and camp activities better than the judge or jury who might have to decide the outcome of a lawsuit. Basically, you will be asking the parent to trust you not to abuse the release. In addition, you may explain the value of the camper agreement, as a whole, in providing important information about activities, risks, and camp family responsibilities.
But, the parent might respond: "You are not trusting me to assert only legitimate claims!"
The parent might know, and assert to you, that the state whose laws would be applied to a dispute does not allow parents to sign a release on behalf of a child; or, that such a release is unenforceable, or contrary to public policy, even though your jurisdiction has not yet ruled on the issue. If you are operating under a permit or concession on federal lands, the parent may urge that the policies of that land manager restrict the camp from using any type of release with its participants, when operating under permit on those federal lands.
If the statutory or case law of your jurisdiction clearly prohibits these types of releases, you (and your lawyer) should think carefully about including such a release. Although the court may change its ruling on the issue at a future date, you may risk losing the benefit of the entire document by including this provision. Restrictions on government land should be investigated, and dealt with appropriately, because they may limit your ability to seek an enforceable release (not within the scope of this article).
On the other hand, release language in your camp agreement may be introduced by language such as "to the extent the law allows," which signals that applicable law might not be well developed regarding if and how the release might be enforced. In doing so, the camp may attempt to take advantage of what is something of a trend in the United States to allow such releases particularly (as we have seen) in situations involving children in school or community-based (oftentimes nonprofit) recreation programs.
In any event, there is a reasonable expectation that more states will be changing their laws in this regard, and allowing such releases. And a court considering the release provision in question may find that a parental release regarding the particular activity was justified, and in fact should be encouraged.
If you have not discussed this issue with your staff, consider doing so. A serious discussion with your camp's families might also be in order too, and might influence your thinking on the subject.
Whatever you decide to do will certainly reflect the culture and ethics of your camp. The issue is a serious one and, as noted above, will be the subject of a seventy five-minute presentation by us at the American Camp Association Conference in Austin, Texas in February.
This article contains general information only and is not intended to provide specific legal advice. Recreation providers should consult with a licensed attorney regarding application of state and federal laws specific to their business or operation.
©2006 Charles R. 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 is an active speaker and author in the field of managing risks of legal liability in education and recreation programs. He has served as legal counsel to The National Outdoor Leadership School since the late 1970's and serves as legal counsel to numerous other education, recreation, and study abroad programs. 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 and related organizations on legal liability and risk management issues. She speaks and writes on these issues, both regionally and nationally. She has co-chaired (with Reb Gregg) the first four CLE International conferences on Recreation & Adventure Law & Liability in 2003-2006. She serves on the High Mountain Institute board of directors and is a member of the Wyoming and Colorado Bar Associations. She can be reached at 303-232-7049, or e-mail email@example.com;
Originally published in the 2007 January/February issue of Camping Magazine.