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by Ed Schirick
As
camps reach out to their communities to provide facilities and services
for various programs, the principles of risk management can provide structure
and help you avoid problems. Let's consider some risk management and
liability issues facing camp community partnerships with schools, alternatives
to incarceration for juvenile offenders, and elder hostel programs.
Camp and School Partnerships
Camp and school relationships have been built around the camp's facilities
as an extension of the classroom. Science teachers, in particular, have
taken advantage of the wonderful earth science and environmental education
opportunities that abound at camp. Some camps have found this to be a
fulfilling way to help their local communities, educate children, and
improve their bottom line. Opportunities always present some risks. School
and camp partnerships are no exception.
Directors should recognize and be prepared to manage the risks involved
with these relationships.
Create a community-service contract
The scope of risk depends to some degree on the size of the group and the activities
planned. Often an entire class participates in a field trip to camp. Whether
you plan one program a year or one hundred, the relationship, responsibilities,
and services to be provided should be concisely spelled out in a contract.
For example, some camps lease their premises for use as an environmental
classroom and only provide cabins, snacks, and meals. None of the camp's
recreational facilities are available to the students. No operations
are conducted by camp staff. Teacher(s), volunteer chaperones (parents),
and other school staff provide the supervision and instruction. This
is one of the more basic arrangements. In spite of its simplicity, the
details of this relationship and the services provided should be outlined
in a contract.
Enlist an attorney
You should hire an attorney to put the relationship and responsibilities shared
between your camp and the school into concise legal language. Always use
an attorney to write a contract so it can comply with your state's laws and
reflect your operation. Consider sharing samples of your contract with directors
in other states. This is a great way to generate ideas. However, keep in
mind that laws differ from state to state. Writing contracts is definitely
a situation where one size does not fit all.
Identify risks and responsibilities
The contract should indicate that each party is responsible for its own negligence.
The school should be responsible for the acts and omissions of its staff
(failure to properly supervise, etc.). The camp should be responsible for
injuries that occur on the premises, which arise out of the premises (buildings
and other improvements) and risks inherent to the premises (roots in paths,
uneven ground, etc.).
Be specific about insurance requirements
All organizations who wish to contract with you for use of your premises, or
to jointly conduct programs, such as challenge courses, should have their
own insurance. Your contract should require proof of their insurance in the
form of a Certificate of Insurance. Furthermore, the contract should stipulate
that their General Liability Insurance provides coverage for injury to participants.
The limits of liability carried by the contracting organization should be
at least $1 million for General Liability.
The Certificate of Insurance
The Certificate of Insurance should also indicate that the organization
carries Workers' Compensation and Employers' Liability Insurance in accordance
with the laws of your state. Employers' Liability Limits should be at
least $500,000. If no Workers' Compensation Insurance is carried by the
organization, an injury to one of its employees could wind up being paid
by one of your insurance policies. All independent contractors and organizations
who lease your premises to conduct any activity either independently
or jointly with you should have Workers' Compensation for their staff.
Upon receipt of the Certificate of Insurance, send a copy to your Insurance
Broker, or Agent. Ask your broker to review the information for anything
unusual and to check the A. M. Best rating of the other organization's
insurer to determine whether the insurance company is admitted to do
business in your state. Ask your agent to report back on these issues
and identify any concerns based upon the information obtained. This process
may present other risks, which you may have to address before the group
arrives. It is recommended that all contractual requirements be met before
you permit the group to conduct any operations on your premises.
Why bother to have a contract, if you don't enforce it?
Insuring Volunteers
Some camps go so far as to insist that volunteers (chaperones, parents,
etc.), who accompany the group, be covered by accident medical insurance,
since these people may not be considered employees and not covered under
Workers' Compensation if they are injured.
If any joint transportation is provided, for example, when your staff
or volunteers ride on another organization's bus, request evidence of
Automobile Insurance on the Certificate of Insurance.
Working with the Juvenile Justice System
Establishing relationships with community juvenile justice programs
can present much bigger challenges. You should be able to identify and
analyze potential liabilities and risks involved with juvenile justice
programs when the camp staff interacts with the juvenile justice system's
program staff or independent contractor or jointly shares operational
and supervisory duties. Loosely establishing these relationships can
give nightmares to directors, officials, and their respective insurance
company claims staff. In this scenario, there are premises risks, as
well as operational risks for you to identify and manage.
Establishing the other organization's staff credentials, competencies,
and practices presents an additional set of risks. Good risk-management
practice dictates that you should establish the duties and responsibilities
in advance before someone gets injured. A joint training session would
reduce some of this uncertainty. Operational roles and responsibilities
should be thought through completely before attempting to create a contract
in this situation.
Beware of governmental immunity
Some programs affiliated with local government and judicial systems, may not
have traditional insurance arrangements. Some may be operating under the
auspices of municipal government; others may be independent, nonprofit organizations.
If you establish a partnership with an arm of the local judicial system,
the same risk-management principles and practices should be followed. One
of the objectives of the risk-management process is to avoid becoming the "deep
pocket" in the event some participant is injured. Be aware that the laws
vary from state to state, and that governmental immunity, if it still exists
in your state, could work against you and result in an unexpected legal liability.
That is why it is important to talk about risk management and legal liability
from the beginning of any community outreach activity.
Contracts will help reduce the risk of claims nightmares and increase
the chances that your staff and your organization will only be held responsible
for your own acts of negligence. Contracts may also help ensure the success
of your community outreach activities, not to mention the continued success
of your own business.
Risk Planning with Elder Hostels and Other Groups
Many camps have opened their facilities to church groups, local businesses,
elder hostel programs, and similar adult groups. There is a significant
difference in the risk involved with serving children versus adults when
considering the use of liability waivers as a risk management tool.
Liability waivers
Children continue to have a protected status in the courts, although there
are some signs the courts are recognizing the accelerated maturity of children
today. Children cannot legally waive their rights to sue you. Adults, on
the other hand, can waive their right to sue in some jurisdictions. Many
states still recognize the "assumption of risk doctrine" and will uphold
a liability waiver when it is legally drawn. Consult with your attorney to
determine if the legal environment in your state supports a liability waiver.
If it does, you may want to consider using such a risk-management technique
with your adult participants.
Get Advice from Legal Counsel
Be wary of requests for "Additional Insured" status. This risk-management
technique has been abused. It is entirely inappropriate for some of the
complex relationships that may be developed with community outreach programs
where duties and responsibilities are shared. Discuss the relevancy of
such requests with your insurance and legal advisors before agreeing
to provide any request for "Additional Insured" status on your policy.
"Hold Harmless and Indemnity" clauses in contracts are often unnecessary.
In many cases, the courts simply ignore them, because they are too broad
or poorly constructed. "Hold Harmless and Indemnity" provisions definitely
have a place in contractual relationships but should be carefully considered.
If you see this language in any contract you are being asked to sign,
stop and take the time to get advice in the context of the contract from
legal counsel and from your insurance advisor.
Remember, as the director of your camp, the last thing you want to do
is blindly assume risk. Take the time to consider the risks and opportunities
in the relationships with other organizations in your community. Focus
on the risk-management principles and practices that serve you well in
camp. If you do, you will expand horizons, enrich experiences, and help
make a difference in your community.
Originally published in the 2001 September/October
issue of Camping
Magazine.
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