Increasing public revelations of sexual abuse , sexting, and other inappropriate and egregious contacts between adults and minors have caused organizations who serve youth — including camps — to evaluate their position on, involvement in, and liability for after-camp contacts between campers and camp staff. A core value of most camps is the nurturing of healthy and productive relationships among campers and staff. And, a natural result of the camp session is a desire, by both campers and staff, to stay in touch, encouraged, to some degree, by a camp’s interactive blog, Facebook site, or between-camp-session get-togethers. With the onset of interactive online social media, smartphones, and a camp’s effort to aggressively market itself year-round, what are the issues? Does a camp’s duty of care to campers continue after campers leave camp? How can the camp address after-camp contacts in a responsible and realistic way, considering the tension between its desire to nurture healthy “camp-connected” relationships and the clear risks of unhealthy contacts once the camp season has ended? This article will explore these questions and provide some perspective and suggestions.
This article focuses on after-camp contacts between campers and staff, but logically encompasses any after-camp contacts that include the young and vulnerable — including staff to staff and camper to camper.
After-Camp Contacts — A Camp’s Duty of Care
As we have discussed in many of our CampLine articles, the duty of care owed by a camp (and its staff) weaves in and out of the camp experience, changing with activities, circumstances, relationships, and environments. Whether a duty exists — and the nature and scope of that duty in a given situation — is determined by a court, as a matter of law. A common element of the courts’ duty analysis is “foreseeability” — was it foreseeable that an individual’s actions or failure to act, in a given situation, would lead to the harm? Another important factor is the closeness of a camp’s or staff member’s conduct or involvement to the injury suffered by the camper.
When camp is in session, a duty of care commonly arises because the camp has chosen to provide these services to the public — and implicitly assumed an obligation to protect the child from unreasonable harm. Depending upon the facts of a particular case, common duties of care include the duty to hire, screen, and train staff, and the duty to supervise campers and instruct them on how to use equipment or otherwise engage in an activity. Generally, the camp’s legal duty is to act as a reasonable camp would in protecting campers from unreasonable risks of harm. Similarly, a camp staff member’s duty is to act as a reasonable camp staff member would act in the same or similar circumstances.
A variety of factors can affect a duty of care and a determination of whether that duty was breached, including a camp’s representations in its marketing materials, federal and state laws, a staff member’s words or conduct, a camp’s own policies, and industry accreditation standards. A camp can be directly liable for a breach of its duty of care, and alternatively, can be vicariously liable for a camp staff member’s breach of duty in the course of his or her employment with the camp. A third basis for liability can arise from the notion that the camp’s actions made it appear to the public that an individual was acting under the camp’s direction and control (in the law, termed “apparent authority”).
Our previous discussions of a camp’s duty of care have focused on the camp session. As noted above, a duty of care commonly arises because the camp is providing these services to the public. What about a camp’s duty of care to protect the camper from harm suffered after the end of the camp session? A recent published legal case sheds some light on these issues.
In Gniadek v. Camp Sunshine of Sebago Lake, Inc.,1 Camp Sunshine provided a summer camp experience for children with chronic or life-threatening illnesses and support for their immediate families. Seventeen-year-old Katie Gniadek and her mother attended a one-week camp as volunteers. Katie had been volunteering for Camp Sunshine for week-long sessions for several years before the session in question. She had also attended several off-season fundraisers. Both Katie and her mother had submitted medical information in connection with their application, reporting that Katie had been prescribed anti-depressants and her mother had suffered a head injury.
After arriving at the camp, Katie met another volunteer, fifty-eight-year-old Michael Newton. The camp had accepted Newton as a first time volunteer after learning that he had worked with children and checking with his two references. About two weeks before Katie’s arrival at camp, an eighteen-year-old female volunteer had complained to the camp director about Newton’s behavior toward her — stopping to see her in her room, bringing her gifts, and talking with her about personal matters. The director recommended that the volunteer limit her contact with Newton, and then spoke with Newton about his behavior, telling him to give the volunteers more “personal space.” Newton said he was just “trying too hard to be friendly.” The director conducted a criminal background check and driver’s history check on Newton — both of which came out clean. In addition, he talked with Newton’s supervisor, who reported seeing nothing unusual.
Newton became acquainted with Katie and, on her last day, gave her a card and gift and asked her if they could keep in touch. She agreed. She and her mother also obtained copies of the camp contacts list, which listed the names, addresses, and phone numbers of the counselors and families in attendance. (The camp had begun compiling these lists for families, at their request, and participation in the list was voluntary).
About two-and-a-half months after the camp session, Newton obtained permission from Katie’s mother to contact Katie about accompanying him on a trip to see some camp families. Katie’s mother gave him Katie’s cell phone number. He phoned Katie and asked her if she would like to drive with him to New York to visit a camper family that had attended the camp. During that conversation, Katie learned that Newton had completed his summer volunteer work at the camp, but did not inquire further. Katie’s mother gave her permission to go and Newton picked her up two days later. Katie and her mother believed Katie and Newton would be staying the first night at one of two homes of former camp volunteers, but did not verify this with the families before Katie’s departure. After leaving on the trip, instead of stopping for the night at one of these homes, Newton took Katie to a Connecticut motel for the night. He booked a room with one bed, telling Katie that was the only option available. After she had gone to sleep, he sexually assaulted her. He admitted to the crime, was convicted of sexual assault, and was sent to jail.
Katie filed suit against both the camp and Newton claiming that their actions caused her injuries. Among other things, she claimed that the camp was negligent in hiring,2 supervising, and retaining Newton. She also claimed that the camp was vicariously liable for Newton’s conduct in assaulting her. The camp asked the court to dismiss the case before trial, claiming it had no duty to Katie and was not directly or vicariously liable to her for Newton’s actions. The trial court granted the camp’s motion and dismissed the case. Katie appealed.
The appeals court affirmed the lower court, finding that the camp had no duty to protect Katie in these circumstances, and was not directly or vicariously liable to her. The court noted that generally, an organization is not liable to protect an individual from the criminal acts of another, except in certain circumstances — in the context of a special relationship or if the organization created a particular harm that caused the injury.
The court discussed that a special relationship can either be a fiduciary relationship, one of confidence and trust where there is a great disparity of power or influence between the actor and party, for example, an altar boy and a priest; or a custodial relationship, for example, a camp staff member and a minor camper. The court found there was no special relationship between Katie and the camp at the time of the assault — either fiduciary or custodial.
Katie claimed she had a fiduciary relationship with the camp based upon her “age, chronic illness, use of anti-depressants, and involvement in the camp . . . .” The court found none, in that Katie only spent one week a year at the camp, and had, at most, attended three fundraisers. In the court’s words, the camp had a “limited presence in Katie’s life . . . not marked by a disparity of position and influence between the parties.”
The court found that no custodial relationship existed because Katie’s mother accompanied her to the camp (she was not deprived of her mother’s protection). The court explained that a custodial relationship exists between those that voluntarily take custody of another, so as to deprive the individual of his or her “normal opportunities for protection” — as in the case of a camp, for example. In these cases, the camp is generally required to exercise the degree of care that a parent would exercise in the same or similar circumstances (reasonable care). The court declared that this relationship is limited in time and scope. In this case, the court found that Katie never had a custodial relationship with the camp (her mother attended with her). The court further noted that even if a custodial relationship had existed while Katie was at camp, the assault occurred over two months after she left camp, when no custodial relationship existed.
Further, the court found that the camp had not created a harm that gave rise to a duty to protect Katie. Katie argued that the camp exposed her to risk by distributing the contact lists, which allowed Newton to contact her after she departed from camp. The court found that Katie’s mother had consented to having her contact information included, and offered no proof that Newton couldn’t have contacted them another way had the contact information been unavailable. In addition, the court found that Newton’s known character and conduct at camp did not give rise to a “peculiar risk” of harm (that he would commit an assault), such that the camp should be held to a duty of care to Katie two-and-a-half months after camp ended.
Lastly, in support of her claim that the camp was vicariously liable for Newton’s conduct, Katie urged that the camp was responsible under the agency theory of “apparent authority.” Under that doctrine, the camp could be responsible for Newton’s actions if the camp’s conduct made it reasonably appear to Katie (and her mother) that Newton was acting under the camp’s direction and authority in taking her on the trip (even if the authority did not actually exist). The court found no basis for the claim, noting that when Newton picked Katie up, he told her he was no longer working for the camp (he had no authority to act on the camp’s behalf). Even if, at that point, it was still plausible for Katie to believe that Newton was acting under apparent authority from the camp, the court held that a sexual assault, by definition, could not be within the scope of any apparent authority (the camp would never authorize it!).
Absent any basis for a duty of care, the court affirmed dismissal for the camp, finding that it was neither directly liable to Katie nor vicariously liable to her for Newton’s actions.
Duty and Lessons Learned from the Camp Sunshine Case
So, recognizing that the Camp Sunshine case presents a unique set of facts, what does the case nevertheless teach us about the duty of care and after-camp contacts? It may be comforting to camps to understand that a camp’s duty of care arising from its custodial (or possibly fiduciary) relationship with the child during a camp session — for example, a duty to exercise reasonable care to hire and screen staff and supervise campers — is limited in time and scope, and likely terminates with the end of a camp session (when the child is returned to his or her parent). However, consider that a camp’s duty may arise in other ways, outside the traditional camp custodial relationship.
In the Camp Sunshine after-camp setting, the court couldn’t work within the framework of a duty arising from the custodial relationship, as that had ended when the session was over. The court talked about “foreseeability” as an important element of its duty determination. Under commonly accepted legal doctrines, absent the application of a noted exception (a special relationship or the creation of a particular harm), the harm Katie suffered was not considered foreseeable to the camp, and thus the existence of any camp duty was simply too remote.
However, the advent of interactive social media and a camp’s effort to stay connected with campers can muddy the “duty” waters. Might a duty arise from a camp blog post or Facebook site, or a camp-organized, after-camp get-together at a local pool or a camper alum’s home? What about camp-directed local outreach of staff to campers?
Recall our discussion of factors that can create or impact the duty of care — and consider that the more action the camp takes to create, sponsor, or involve the camp or its staff in an event or activity, the more likely it may be that a court finds a duty to exist. Whether the camp or its staff have breached that duty and caused the harm are of course necessary steps a court or jury must take in determining whether the camp or staff member was negligent.
Consider, too, that camps are not only concerned about their own liability exposure (risk of loss to the camp) but, importantly, the risk of loss to the camper. Addressing these issues is a vital part of the camp’s risk management planning — with its staff and with its campers.
Risk Management Strategies — After-Camp Contacts
The camp should consider its expectations regarding after-camp contacts and the value of an informed and accurate information exchange between the camp and its camper families and staff. These individuals should understand the issues associated with after-camp contacts and their roles and responsibilities. In creating and effectively communicating its position regarding after-camp contacts to both camper families and staff, a camp can reduce the risk of loss to both campers and the camp — and protect the camp’s reputation.
What Might the Message Include?
The nature of the message will vary with the camp and its audience, mission, and culture. Consider these possibilities:
- What is the camp’s position on after-camp contacts? A position prohibiting after-camp contacts (and actually enforcing it) is not realistic. The camp can articulate that the desire for campers to engage in after-camp contacts is a natural extension of a positive camp experience. In fact, the camp, through its (for example) Facebook or blog, may encourage positive information exchanges between campers and the camp (see letter “b”). Consider advising parents and campers of the danger of face-to-face or one-on-one contact between campers and staff and emphasize that a parent’s choice to allow their child to engage in this type of contact is, from a practical perspective, solely that of the parent. It is thus a parent’s sole responsibility to talk with their child about the dangers of after-camp contacts and to consider, choose, and monitor their child’s after-camp interactions — whether online, on the phone, or in person. Consider clarifying, if necessary, that once a seasonal staff member has completed their summer position, they are no longer working for or representing the camp, and the camp has no control over their conduct. The camp might choose to note that staff, counselors-in-training, or campers who live in the same neighborhood or go to the same school will inevitably have contacts that exist outside the camp experience — and that in these settings as well, the parent is solely responsible for overseeing and monitoring their child’s after-camp contacts.
- What about after-camp, camp-sponsored events? It behooves the camp to inform camper families of the camp’s role, if any, in events or activities taking place between camp sessions. For example, if a former camper receives an invitation to a camp event, how is a parent to know if it is legitimately a camp-directed event? What role, if any, is the camp taking? One strategy would be to advise camper parents that unless such an event is officially published on the camp’s Web site, the event is not camp directed, and the parent should contact the camp if they are in doubt. Consider, too, the camp’s position on the role of its year-round staff in engaging in or promoting after-camp events. Consider clarifying whether or not — and if so, how — a camp staff member may be in a position to arrange a camp-sponsored or camp-organized event. This can reduce the risk of a camp staff member acting outside the scope of his or her “camp” authority to engage in inappropriate after-camp activities with former campers under the guise of an official camp event. The camp can inform camper families that the camp does not control what its full- or part-time employees do in their free time, and to contact the camp directly if they have any doubts or concerns about the legitimacy of a camp-organized event or the conduct of one of its staff members.
- The camp can articulate what it DOES do. For example, explain to parents that staff members are trained regarding the issues around after-camp contacts. So, too, the camper orientation might include informing campers (age appropriately) of the same issue. The camp may choose to inform parents to take advantage of available resources to allow them to better understand the dangers, in the context of their responsibility to oversee and monitor their child’s after-camp contacts. The camp can share with camper families their knowledge of available resources. These might include ACA resources and references to Web sites such as www.wiredsafety.org  or www.isafe.org , which include some excellent articles written on this subject.3 As stated above, if a camper or parent alerts the camp to an after-camp issue, it can take appropriate action such as separating a camper or staff member or choosing not to invite the individual back to camp.
Staff policies4 should be included in a staff or employee manual or a staff “contract.” In addition, practically speaking, these issues should be discussed and vetted in staff training — with both full-time and seasonal staff. Staff need to be aware of the caution they must exercise in engaging in after-camp contacts, including the understanding that inappropriate contacts can affect their personal reputation as well as the camp’s and that reports of such contact to the camp can result in a camp decision to dismiss them or not rehire them for future camp sessions.
What Might the Message Include?
- Regarding staff, what is the camp’s position on after-camp contacts? Again, consider a message that the camp does not attempt to prohibit after-camp contacts, but that staff must be aware of the dangers — both to themselves, the camper, and the camp — should any contacts they engage in be construed as inappropriate or illegal (some form of sexual abuse, whether a civil or criminal offense). Staff should be reminded that in their position as full-time or seasonal staff members (or volunteers), they are ambassadors for the camp. Their actions within and outside of the camp setting can hurt a camper or negatively impact their reputation and the camp’s reputation, and could potentially expose them or the camp to civil or criminal liability.
- What about training? Certainly, training will include an understanding of inappropriate and appropriate contacts with campers during the camp session, including the staff member’s reporting obligations, logically extending to awareness about after-camp contacts. The camp can discuss with staff as well that the desire for campers to engage in after-camp contacts is a natural extension of a positive camp experience. The camp can explain its position on, for example, encouraging certain types of staff after-camp contacts (perhaps via a one-time after-camp postcard, staff reaching out to a group of — or all — campers on the camp’s interactive blog or Facebook site, or contact via a camp-organized, after-camp event). The camp can also explain its position on discouraging one-on-one contacts — whether face to face or via the staff member’s personal e-mail, cell phone, or personal social media sites. The camp can also convey that staff, counselors-in-training, or campers who live in the same neighborhood or go to the same school may have contacts that exist outside the camp experience, and that staff should exercise caution and good judgment in these situations.
- The camp can address with staff that once a seasonal staff member has completed his or her summer position, or when a full-time or seasonal staff member is not working, the camp has no control over his or her conduct, but may well take action if the camp is made aware of a staff member’s inappropriate after-camp contacts. (As previously stated, this can result in a camp decision to dismiss staff or not rehire staff for future camp sessions). The camp can inform staff of conduct the camp considers inappropriate when the staff member is off time or not working, such as the staff member’s use of the Internet (whether their official camp e-mail, personal e-mail, Facebook, or other interactive social media) to post or discuss camp issues or incidents, including photos or content that may be offensive, inappropriate, or damaging to the camp or to campers. d. Just as with camper families, staff should be made aware of the camp’s plan regarding camp-organized, after-camp events — if it holds them, how that is officially done, and what staff members’ roles will be in those events. The camp can warn staff about the dangers (or open violation of camp policy) in putting on an event for campers that appears to be one officially sanctioned by the camp (but is not).
Consider also that the camp’s participation agreement (signed by the camper or parent of a minor camper) can contain language advising campers/parents about the dangers of after-camp contacts as well. (See our Spring 2007 CampLine article, “Releases Revisited,” for a fuller discussion of these documents.)
Note that if the camp does engage in camp-organized or camp-sponsored after-camp events, it needs to carefully consider the structure of the event, appropriate supervision (for example, if campers will be attending without parents), and risk management and legal issues just as it would if it were an event occurring during the camp session. This reflects the camp’s interest in considering and managing the risk of loss to campers and to the camp. As noted above, the more the camp involves itself with an after-camp event, the more likely a court may find that a duty exists, in the event of any harm or loss.
Consider the issue of after-camp contacts in the context of your camp culture. Your proactive efforts to address these contacts, inform your camper families and staff about the issues and their responsibilities, and what the camp cannot do will serve you well in your ongoing endeavor to run a quality camp program — and reduce the chances of a loss to the camp and its families.
*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 rel¬evant state and federal law as well as considerations regarding their specific business or operation.
Charles R. (Reb) Gregg is a practicing attorney in Houston, Texas, specializing in outdoor recreation matters and general litigation. 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 on legal liability and risk management issues. Hansen-Stamp can be reached at 303-232-7049, or e-mail email@example.com ; www.hansenstampattorney.com 
- 11 A.3d 308 (Me. Sup. Ct. January, 2011); see our previously published discussion of this case: www.outdoored.com ; ©Charles R. Gregg and Catherine Hansen-Stamp, “Issues Involving Your Duty of Care — Where Does it Begin and End?,” Adventure and Recreation Law Center, 4/11.
- The lower court discusses a general duty to exercise reasonable care in hiring and screening processes to check for sexual predators to avoid an unreasonable risk of harm to camp attendees. Katie argued that if the camp had conducted a personal background check and an interview — Newton would not have been hired, and Katie would not have been exposed to Newton or been sexually assaulted. The lower court dis¬agreed. It found that the camp had called two references initially. After the previous volunteer had reported problems, the camp conducted a background check. No information the camp found would have revealed any problems with Newton. Therefore, the court found, even if the camp was deficient in its hiring processes, their later background check revealed nothing, demonstrating that any inadequacy in hiring processes was not a proximate cause of Katie’s harm.
- See, for example, at www.ACAcamps.org/campmag/0609wallace ; Stephen G. Wallace, MSEd, “Their Space or Yours? Social Networking Sites Bring Risks and Rewards to the Camp Community,” from the September 2006 Camping Magazine.
- The word “policy” here is used in a general sense. As mentioned in previous articles for CampLine, the use of the term “policy,” “procedure,” “guideline,” or other term should be consciously used, and defined within the camp culture, as those terms have legal ramifications.