Risk Management: Notes From the Field

by Edward A. Schirick, C.P.C.U., C.I.C., C.R.M.

A variety of risk management issues influence the management of camps today from challenge courses and water slides that fall under “amusement ride” regulations in some states to requirements for waivers and releases and policies regarding camper/staff contact. So what is on your radar screen?

Increased Regulation

Is your camp’s adventure course an amusement ride? How about your go-carts? What about the climbing wall or water slide? Well, the answer is “maybe,” and it depends upon the state in which your camp is located and the amusement ride regulations promulgated there.

These questions are no surprise to some camp directors who have been confronted by local regulations that do indeed make these camp activities amusement rides in their state. The concern from a risk management standpoint is threefold: awareness, education, and compliance.

Awareness
The American Camp Association® (ACA), including ACA local offices, as well as state camp director associations, have methods to monitor local legislative activity regarding camp activities that are considered amusement rides in certain states. This is an important process which identifies regulatory risks. It also gives those potentially impacted an opportunity to discuss and shape regulations that work and make sense. Considering the trend toward increased regulation, is the scope of your monitoring process broad enough?

Education
Awareness creates an educational opportunity for regulators and legislators, as well as camp professionals. Without this awareness and educational effort, a spider’s web of regulation that conflicts and overlaps could result. There are plenty of examples where successful educational efforts made the difference in the quality and scope of appropriate regulations, so we know this process works.

Compliance
If camp professionals are plugged into a monitoring and educational process, the risks associated with failure to comply are reduced. However, finding out your go-carts are subject to your state’s amusement ride law when the inspector shows up and starts “writing you up” is an experience you don’t need.

The upset, the additional expense to comply, and the potential fines are only the tip of the risk “iceberg.” The real risk, lurking beneath the surface, is how failure to comply increases your liability if someone is injured. Attorneys refer to this violation of a statute designed to protect the public safety as “negligence per se.”

Other Risk Management Issues

Besides the questions about certain camp activities being considered amusement rides in some states, other issues like the legalities and requirements for waivers and releases, camp policies surrounding camper/staff contact, and inappropriate conduct issues face camps today.

Inappropriate Conduct
The focus of our concerns about inappropriate conduct at camp has grown and changed over the past twenty years. The issue continues to evolve, driven to some degree by technology.

There are many issues defining the terms “inappropriate conduct” at camp:

  • Physical/sexual abuse or molestation of campers by staff;
  • Physical/sexual abuse of campers by other campers;
  • Physical abuse and sexual harassment among employees at camp; and
  • Violence/aggressive behavior at work.

The initial concern, the physical and sexual abuse or molestation of campers by staff, is ever present. Does anyone remember when you could hire staff without a criminal background check? As the abuse and molestation risk has evolved, so has our awareness that there is no “standard” criminal background check. You must determine which criminal records are being checked to ensure this safeguard is meeting your purposes.

As a service, some insurance companies have sought to arrange broad, standardized criminal background check services through independent contractors. However, while this has been helpful, there is still no national, comprehensive check that we can rely upon 100 percent. This fact remains in spite of the Federal government’s attempts to pass laws creating such a clearinghouse of information.

A criminal background check is only one tool to use in managing the risk of abuse and molestation. It is a painful experience when a predator is discovered through his/her actions, and you learn there is no criminal history of their propensity to abuse children. How extensive is your criminal background check program?

Supervision continues to be among the most effective risk reduction techniques. Psychologists tell us that abusers are inhibited when they don’t feel safe; they won’t act if they think they might get caught. What else can you do? Is it enough, or can you do more?

Camper/Staff Contact During the Off Season
There was a time when off-season contact between staff and campers was encouraged and endorsed by camp owners/ directors. This was good for everyone, or so we thought.

As the abuse and molestation risk has changed, we’ve learned that predators can be very patient. Some can even befriend a child at camp, wait all summer, then prey upon them when they return home. What is the camp’s obligation and risk in this situation?

This is a legal question, one with no single correct answer, because the facts and circumstances of each situation will be different. Generally, it seems to make sense to put parents on notice that they have responsibility to monitor their child’s camp relationships after the child returns home, just as they would any other relationship the child might have in the neighborhood or at school, for example.

Monitoring a child’s relationships is a much bigger and more daunting task as cyberspace and social networking sites have evolved. Don’t assume parents are aware of these issues. Under the circumstances, one camp’s approach to establishing a policy of contact for the off-season was to formulate a statement which reaffirmed the camp’s hiring and supervisory practices while the employees are at camp. Their notice to parents also included a caveat that the camp was not responsible for the actions of staff after they have left the camp’s employment.

This position may be difficult or impossible to maintain if you offer chat rooms, bulletin boards, and other interaction on your Web site for campers and staff. The cyber liability risks in this situation may also be uncovered by the camp’s general liability insurance policy. Cyber liability risks are still fuzzy. Venturing too far into cyberspace without a carefully conceived risk management plan is risky business. What policies have you created to manage your camp’s risk in cyberspace?

Camper-to-Camper Abuse One insurer confided that over the past several years, 50 percent of the abuse and molestation incidents being reported to their claim department by their policyholders have involved campers molesting and abusing other campers.

While some of this behavior may be written off to “youthful curiosity,” to what do we attribute the rest? Equally as important, how do we manage this risk? What is your experience? What are other directors experiencing? Further investigation seems necessary. One thing for sure, this is a variation of an old problem requiring new risk management methods.

Sexual Harassment at Camp
The other side of the abuse and molestation issue involves sexual harassment. While not a new issue, sexual harassment allegations require no less attention and vigilance and call for immediate and measured, thoughtful action to protect everyone’s rights. Managing this risk is part and parcel of your camp’s overall abuse and molestation risk management plan, but we find it is sometimes overlooked and underdeveloped.

Failure to address this inappropriate behavior at camp is more likely to result in a formal complaint today than ever before. A standard camp general liability insurance policy does not cover liability arising out of allegations of sexual harassment or other offenses related to your camp’s employment practices. A separate insurance policy has been developed to address these issues. Are you doing all you can to manage this risk at your camp?

Waivers and Releases, Hold Harmless Agreements, and Acknowledgement of Risk
The one constant in life is change. For years, conventional wisdom and the law reflected that waiver, release, and hold harmless/exculpatory clauses in camp enrollment documents were unenforceable.

Most states will not allow the parents to waive the minor child’s right to sue for damages caused by negligent (both ordinary and gross negligence) actions. However, a recent court ruling in California may change some of that conventional wisdom, in regards to ordinary negligence. This development follows a Colorado law passed in 2003 which makes it legal for parents to waive their minor child’s right to sue for negligence.

I’m not an attorney, so I’m going to avoid trying to explain the nuances of these legal matters, but want to stress the importance of these developments for camps in those states. If you haven’t already heard about these developments, I encourage you to learn more. In addition, I recommend that you undertake a review of your waiver, release, hold harmless, and other exculpatory documents with legal counsel to ensure compliance in your state and to bring them in line with these latest rulings and regulations.

For the rest of us, the lesson to be learned is clear. Although the law in your state may not be favorable to these exculpatory clauses at this time, keep an open mind about these issues when your legal, risk management, and insurance advisors encourage you to develop and use them. You never know when things will change.

Edward A. Schirick, C.P.C.U., C.I.C., C.R.M., is president of Schirick and Associates Insurance Brokers in Rock Hill, New York, where he specializes in providing risk management advice and in arranging insurance coverage for camps. Schirick is a chartered property casualty underwriter and a certified insurance counselor. He can be reached at 845-794-3113.

Originally published in the 2007 November/December issue of Camping Magazine.

 

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