Running a quality operation is the best way to reduce the risk of injury or other loss that may lead to camper families or others taking legal action against a camp. And camps, as an industry, are not frequently named in litigation. Prudent camp operation and strong, sometimes multigeneration loyalties often produce an amicable resolution of issues or incidents that avoids litigation. Importantly, if a lawsuit is filed (and this is true of lawsuits generally), most suits result in settlement before a trial.
However, incidents will and do occur. An incident could involve a child bitten by a snake, a bullying incident between two children, or a head injury resulting from rock fall. Other incidents may be more serious, such as a drowning death or a fall from a horse resulting in some paralysis. And, not surprisingly, lawsuits can arise from a range of something that may be perceived as minor all the way to more serious incidents. Camp management should have a working knowledge of what happens when an incident produces a claim that ripens into a lawsuit. This knowledge can assist camp management in its legal and risk management planning, and importantly, in the event the camp is faced with legal action against it. No lawsuit is pleasant, but some basic knowledge can reduce misunderstandings and misplaced anxieties.
Most camps purchase liability insurance, which generally gives the insurance company a significant role in handling reported claims. Control notwithstanding, camp management is best served by meeting and working with its insurance representatives to understand and obtain any needed clarification regarding the camp’s coverage and to understand the process in the event of a reported claim. In addition, the camp should inform insurance representatives of the camp’s risk management and emergency response plan. If the camp has its own independent legal counsel, he or she can work with the camp and insurance company to identify how they can all work efficiently in the event of an incident and resulting claim. These steps increase the rapport and understanding among the camp, the insurance company and legal counsel, and assist in keeping staff and families informed regarding developments.
The focus of this article is the anatomy of a typical lawsuit against a camp. We will begin with an event, and move through predictable subsequent developments, including the assertion of a claim, the potential for settlement without suit, the suit, and its components and outcome.
The process we describe below will apply to matters brought in state or federal courts. However, because claims against camps most frequently involve an alleged broken promise or the breach of a duty of care (negligence), we will focus on civil claims.
There are two basic types of law in the U.S. — criminal and civil. Published legal cases create precedent in a particular jurisdiction (whether in a state or region). The law is governed by statutes (laws) interpreted by judges in published legal cases or established by judges’ opinions under “common law” also articulated in published cases. Both judges and attorneys rely on this case precedent (authority) to interpret laws or identify legal doctrines in other cases.
Criminal law is defined by local, state, or federal statutes and codes that basically identify public crimes or crimes against the community at large. Someone accused of a crime must be investigated, charged, tried, and convicted — potentially paying fines and serving jail time for a proven crime. Criminal law is focused on punishing a perpetrator for a proven crime.
Civil law is the most common source of liability for camps and their leaders. Civil law focuses on the award of compensation to someone who proves they have suffered a civil wrong. Civil law is generally divided into two categories: contracts (enforceable promises) and torts (private wrongs to a person or his/her property).
The Process of a Civil Lawsuit
Our starting point is a fictional event, or incident, sufficiently serious to produce a lawsuit (see paragraph two for examples). Whatever the incident, camp management may feel the claim is not justified, but if the camper or family (a child’s parent, for example) (“claimant”) is serious about it, the camp and its insurance company must take it seriously as well. Although the specific nature of the incident and the alleged loss will influence decisions made in the case as it develops, we have not chosen a specific incident. Instead, we have opted to discuss the general process to cover a broader range of issues.
As noted, most insurance contracts allow the insurance carrier to control the claim and lawsuit, including, in large part, the final decision regarding payments made, if any. Camp managers and their independent legal counsel should discuss these issues with their insurance representatives before an incident occurs and in the context of their insurance review. As mentioned above, establishing a rapport with insurance representatives early on will assist a camp in understanding its role in the event of a claim and resulting lawsuit. It will also give the camp some confidence that insurance representatives will heed the camp’s concerns regarding matters that may profoundly affect its reputation and finances.
If an incident occurs and the camp has reacted to it — including being appropriately cooperative with the injured party/family — the camp may be alerted to the possibility of a lawsuit. The camp may receive a letter or phone call from the claimant or the claimant’s attorney seeking some compensation for the injury suffered. The insurance company should generally be advised of the claim, and plans should be made for the camp’s response. A camp may choose to respond directly if contacted by a claimant. However, legal counsel, typically approved by the insurance company, should respond to communications from a claimant’s lawyer. The camp and its legal counsel may engage in efforts to settle the matter before (or without) the filing of a lawsuit. These settlement efforts can include various forms of alternative dispute resolution (“ADR”), including mediation or other resolutions less formal than litigation. In fact, ADR is generally available to the parties at any point in the resolution of dispute, before or after the filing of a lawsuit.
If the matter is not resolved by discussion or other means, the dispute moves to the next phase — the filing of a lawsuit against the camp.1 The claimant (“plaintiff”), presumably with the assistance of legal counsel, files a “complaint.” The complaint must be filed within a certain period of time (“statute of limitations”). The complaint contains the plaintiff’s statement of the events, the various legal claims asserted against the camp (“defendant”), the losses the plaintiff has allegedly suffered resulting from the defendant’s wrongs, and the compensation the plaintiff seeks. The plaintiff’s complaint is filed in one of various courts, depending upon the amount of the plaintiff’s alleged damages (the “amount in controversy”), the nature of the plaintiff’s claims, and other factors. These courts include county, district, or federal courts. The location for the filing of a lawsuit (“venue”) is also dependent on certain factors. The plaintiff may file the complaint for himself and/or on behalf of another (for example, by the parent, for himself, and for and on behalf of his minor child).
After receiving the complaint, the defendant, with assistance from legal counsel, must respond by filing an “answer” within a required period of time. The answer sets out the defendant’s reply to the plaintiff’s allegations and includes its defenses to the claims asserted in the complaint.
The suit is now underway — each party has had an opportunity to tell the court its side of the story. The original complaint and answer may be amended as the parties discover new facts or enlarge — or reduce — their theories of recovery or defense.
The case is then set for a trial before a judge or jury. In the latter case, the jury determines factual matters and the judge determines what law applies to the facts. The complexity of the case, the number of cases before the court, and the court’s (and the attorneys’) schedules will determine the time required to get to trial. Cases can be heard in months, but others may not get to trial for years.
The parties now begin to prepare for trial. Preparation includes studying applicable law, investigating facts, searching for credible witnesses to put those facts before the judge and jury, and collecting and assessing relevant information2 or physical items. In addition to independent investigation, the lawyers obtain facts and information through a process called “discovery.” According to the rules of civil procedure, each lawyer may ask written questions (“interrogatories”), obtain live testimony (“depositions”), and seek information and documents from the other party in order to develop their side of the case and their respective legal theories. Some materials may be protected from the discovery process (“privileged”). For example, correspondence moving between a client and his attorney is protected (by the rules in a particular jurisdiction) by what is called the attorney/client privilege. Another privilege provides limited protection for documents or materials developed in anticipation of litigation (the work product privilege).
Lawyers for each party may hire one or more experts in a relevant field to assist in trial preparation or serve as a witness at trial to provide opinions on complex matters relevant to the case.
The filed lawsuit is governed by a variety of procedural rules, primarily the rules of civil procedure and the rules of evidence. Either lawyer may file motions or written briefs with the court regarding some aspect of the case. Commonly, following some discovery, either lawyer may file a motion to dismiss or a motion for summary judgment. These motions attempt to dismiss all or part of the lawsuit before a trial or ask the court to make other rulings. Sometimes, the plaintiff will file this type of motion to limit a defendant’s defenses to the suit. The lawyers file written materials in support of or against the motion. The judge usually has a hearing with the attorneys present and subsequently rules on the motion. A motion for summary judgment, for example, requests the court to dismiss a claim before trial on the grounds that there are no factual disputes regarding the matter, and the claim should be dismissed as a matter of law.
Here are a few examples of common pretrial motions to dismiss or for summary judgment:
- A camp’s lawyer may urge that a participant agreement, containing a release of liability for negligence and signed by the plaintiff, bars the plaintiff’s claims or that the injury suffered by the plaintiff resulted from an inherent risk of the activity (and, as a result, the organization and/or instructor have no duty and no corresponding liability to the plaintiff).
- A camp’s lawyer may claim that the plaintiff agreed in a camp contract to binding arbitration and has thus waived his or her right to pursue court action.
- A camp’s lawyer may ask the court to dismiss the case and allow it to be refiled, claiming the suit has been filed in the wrong place. For example, in an enrollment agreement or participant agreement, the plaintiff may have agreed to the place of suit in a certain jurisdiction (“venue”). The judge may agree to dismiss the suit and direct that the plaintiff, if he or she wishes to continue the suit, must refile the case in the correct jurisdiction. Including a venue provision in a contract identifying the place of any future suit is often done so that a camp or organization can direct litigation to be filed in the state/county where it has its principal place of business (and where it may be more favorably treated).
Other motions can be made by legal counsel at various points in the trial — for example, during trial, at the close of the presentation of evidence, and following the court decision or jury verdict.
As noted above, the case can settle before (or anytime during) trial. For example, the plaintiff may decide to drop the case if the defendant agrees to pay the plaintiff a certain amount of money to settle the alleged claims.
The case may be tried before a judge or jury. If the case will be tried before a jury, each lawyer assists in picking the jury through a process called voir dire (literally meaning “to tell the truth”). In this process, each lawyer asks questions of potential jurors and has an opportunity to dismiss a certain number of potential jurors in the endeavor to come up with a jury who will be fair or, potentially, (in the lawyer’s opinion) empathetic to the lawyer’s presentation of the case. Ultimately, there are usually twelve jury members, but there can be as few as six, depending upon the court.
If the case proceeds to a judge or jury trial, each side will present their case. The plaintiff is allowed to present his or her case first, followed by the defendant. Usually, this is then followed by the plaintiff’s rebuttal. Generally, the plaintiff has the burden to prove (typically by a preponderance of the evidence) the defendant’s liability; however, the defendant usually has the burden to prove his or her defenses or other matters. The parties may make opening statements to explain what the party intends to prove or disprove and, importantly, endeavor to establish a rapport with the jury to gain its support.
The trial proceeds with lawyers for each of the parties providing evidence in support of their respective positions. This might include written, electronic, or physical evidence; deposition testimony; or live witnesses testifying in court. Each party has the right to cross-examine the other’s witnesses. The proceedings are interlaced with objections to, among other things, questions (“leading” or “presumes facts not in evidence,” for example), answers (“not responsive” or “not within the witness’s knowledge,” for example), introduction of documents or other evidence, and testimony of experts. The court will rule on these objections and the trial continues. At the trial’s conclusion, the plaintiff and defendant each have an opportunity to present their closing statements. These statements usually include a summary of the evidence and how it supports the plaintiff’s or defendant’s position.
In the case of a jury trial, both lawyers meet with the judge, usually toward the end of the presentation of evidence, to agree on jury instructions, definitions, and questions. These instructions and other directives are given to the jury before the jury’s deliberation. If either lawyer disagrees with some aspect of these directives (sometimes referred to as the “charge”), he or she can voice an objection, which is then preserved for any subsequent appeal.
In responding to the charge, the jury “deliberates” to reach a verdict, including determinations about liability and fault, any comparative fault, and the amount of any damages awarded to the plaintiff — unless the judge determines that the evidence presented is capable of only one conclusion under the law and thus “directs” the verdict. Once a verdict is reached, the judge reads the jury’s responses to counsel and the parties. If the judge determines the jury findings are accurate and in accordance with the law, he or she enters an order consistent with the jury’s findings. If not, the court may make other rulings, with or without a motion by counsel. Again, the lawyers have an opportunity to make objections or file any posttrial motions.
In the case of a judge (“bench”) trial, at the conclusion of the case, the judge announces his or her decision to counsel and the parties. This decision is recorded in the court minutes, and the judge may follow it with a written opinion setting out his or her findings and the reasons for the ruling. Some of these opinions are officially published and may be used as precedent in other cases. As with a jury trial, following the conclusion of a bench trial, counsel have opportunities to make objections and file motions.
The judgment in either a bench or jury trial becomes final after a prescribed period of time — customarily thirty days — and may then be appealed.
If the plaintiff wins the suit, he or she must attempt to enforce the judgment. This may be as simple as serving a demand on the defendant that is subsequently paid, or it may be more difficult and involve securing the defendant’s property or attaching one of the defendant’s bank accounts. If the judgment involves something other than money damages (specific performance, for example), the plaintiff takes other steps to enforce the judgment.
If the losing party decides to appeal the case, a higher court will review the lower court’s findings. The appeal must be filed within the required time period allowed for appeal. For example, in Colorado, decisions made by the state’s district courts are appealed to the Colorado Court of Appeals. From there, cases can be appealed to the Colorado Supreme Court. Wyoming, on the other hand, has no intermediate state appeals court, and Wyoming state district court decisions are appealed directly to the Wyoming Supreme Court. Federal district court cases are appealed from a state’s federal district court to a circuit court of appeals, which hears cases from a number of states. For Colorado and Wyoming, that is the 10th Circuit Court of Appeals. Appeals courts can choose to affirm (uphold) the decision of a lower court, reverse the decision, order the lower court to conduct a new trial, or make a variety of other directives. If an appeal is filed, any judgment secured against a defendant is typically delayed (“stayed”) until the matter is finally resolved.
Once a lawsuit is filed, it can take many months or years — and a large financial outlay — to resolve the dispute. Lawsuits can also take an emotional toll on the organization and its employees, as well as interfere with ongoing operations. In most cases, a camp is better served if a lawsuit is avoided. If a lawsuit does occur, a camp that is informed and aware of the process is an invaluable asset to staff, camp families, and legal counsel. As a result, understanding the process — and discussing these matters with legal counsel and insurance company representatives — will better prepare a camp in the event of litigation.
*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
1. In some cases, a plaintiff may claim to be adversely affected by an agency action. In such a case, the plaintiff is required to lodge his com¬plaint with the agency first, before ultimately proceeding to a court to resolve the dispute. The process of the dispute is governed by the federal or state Administrative Procedures Act, and the claimant must “exhaust” his or her administrative remedies (that is, pursue the required path to dispute the matter before the agency) before ultimately appealing the matter to a court.
2. Information can include paper, electronic, or other materials. Recent laws make clear that it is critical for camps to work with legal coun¬sel to develop a document retention and destruction plan, including procedures for a “litigation hold,” to halt the routine destruction of the camp’s records in the event of litigation. This plan will assist the camp in responding to appropriate discovery requests in the event of litigation — particularly those involving electronic information.