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