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The Issue
here are many areas of staffing important to the running of a quality camp program. Camps, for example, must be sensitive to the variety of state and federal laws that outline procedures and parameters for the hiring, firing, and management of camp employees. Laws such as the Americans with Disabilities Act, Civil Rights and Workers' Compensation must be understood and complied with. These laws and doctrines affect a camp's liability to its staff. However, a growing and key area of concern, and the focus of this article, is the critical reality that a staff member's actions can create liability for the camp. What is the basis for this liability exposure? How does a camp minimize its exposure for the acts of its staff? How does a camp respond? This article will outline the framework and provide some practical solutions.
The Challenges
Fueling this staffing issue are several key factors, playing into most camp or outdoor recreation arenas. From a marketing perspective, camps feel increasing pressure to differentiate their operation from the camp down the road, or within the region. Every camp is looking for a way to distinguish their operation, whether on their Web site, in their brochure, or at the next conference or trade show. This pressure fuels the increasing desire to develop new "toys," offer new activities, venture into new environments, and create more variety in the camp experience. At the same time, camps are seeing developing and increasing standards, new and increasing camper health and behavior issues, and importantly, new and increasing camper and parent expectations about both camp quality and safety. As a result, camps must be increasingly vigilant about understanding their exposure and seizing opportunities to minimize that exposure, while focusing on the main goal of running a quality operation.
The Problem
A camp's liability exposure for acts of its staff is key because staff are on the front line. The staff are in many ways, a central piece of the camp's identity, projecting, and protecting, the feel, the personality, and the reputation of the camp. These are the folks who make the first impression when kids hop out of the car, and families walk up the steps to the camp registration desk. These are the folks who supervise, instruct, and lead the campers in the day's events and activities. These are the folks who respond, when a camper is hurt. Issues arising from staff conduct or judgment can and do lead directly to injury or loss to campers, and inevitably, to injury or loss to the camp, including the loss of money, loss of reputation, and loss of business.
Legal Framework
What is the nature of a camp's legal exposure for the acts of its staff? When a camper gets hurt, and a lawsuit is filed, the most common claim filed against the camp (and sometimes, against the individual employee) is a claim of negligence. That is, a claim that the camp — or its employee — failed to exercise reasonable care (was "negligent") in the conduct of some aspect of the program, and that that negligence caused the camper's injuries. To prove a claim of negligence, the plaintiff must prove that there was: 1) a duty owed; 2) a breach of that duty; 3) a loss [to property, or a personal injury, physical or emotional]; and 4) a causal connection between the breach of duty and the loss.
Nature of Claims
Generally, a camp can be both directly and vicariously liable for the acts of its employees. For example, if a camper is injured as a result of the alleged carelessness, inexperience, or inattentiveness of a camp employee, a camper ("plaintiff") lawsuit might claim that the camp was negligent in hiring or training the employee ("direct" liability). Alternatively, the plaintiff may claim that the camp is responsible for the employee's negligent instruction or supervision of the injured camper, committed in the course of his/her employment ("vicarious liability"). This vicarious liability (often referred to as the doctrine of "Respondeat Superior") commonly extends as well, to a camp's volunteer leaders or interns. The notion is that the employee or other representative is a logical extension of the camp and that the camp should therefore be responsible for its employees' acts or omissions, during the course of the work time.
Different types of legal exposure come into play in the event the camp hires independent contractors to conduct or instruct activities or programs. This might be the case, for example, if a camp wanted to offer horseback riding activities to its campers but did not own its own horses or run its own equine program. The camp might hire an organization down the road to conduct horseback riding lessons for the campers during their month-long stay or simply offer a day horse pack or horseback riding trip during the camp session.
Generally, to be defined and considered an "independent contractor" under the law, the individual or entity must retain control over the scope and details of how it conducts its work. If the relationship is upheld, the independent contractor, not the camp, will be legally responsible for the acts of its employees and any injury to campers hurt on its "watch." However, if, the camp calls the individual an independent contractor, but treats the relationship otherwise (directing and controlling, for example, the scope and details of the individual's work), the court can call it what it wants, and treat the independent contractor as an employee, thereby subjecting the camp to vicarious liability. In addition, the camp must exercise diligence in selecting any independent contractor, because it can be held responsible to an injured party on a claim that it negligently selected the independent contractor.
Another legal twist is a camp's legal liability on an "agency" theory. Under the legal doctrine of "apparent authority," a camp can be found liable for the acts of an independent contractor or third party if it appears to the public that the camp is responsible (even if it isn't) for the other party's actions. This can happen, for example, if a camp uses a third party to conduct a particular activity, but doesn't disclose to the public that there is another entity involved.
Defenses
The camp can assert a variety of defenses in response to a claim of negligence (either direct or vicarious). These include: 1) that one of the elements of a claim of negligence is missing (for example, the camp did not owe any duty or was relieved of a duty owed); or, 2) that the injury resulted from a camper's contributory fault or negligence. A common defense stems from the "inherent risk" legal doctrine — the well-accepted notion that a provider of outdoor or recreation activities has no duty to protect participants from the inherent risks of those activities, and has no legal responsibility for harm to a participant that results from those risks.1 An admitted gray area is defining the line between inherent risks and negligence. However, in some jurisdictions, courts have ruled that, in the instructor/student context, the inherent risks of the activities include instructor carelessness, stretching the inherent risk doctrine beyond its original limits (this extension has also been applied as between co-participants in sport or recreation activities). Another common defense is that the participant signed a document assuming the risks of the activity, and/or agreeing to release the camp from liability for its negligence. These types of documents, if upheld, can justify dismissal of a claim; in essence, the participant has agreed to relieve the camp of liability for harm to the camper resulting from the camp's negligence.
A fuller discussion of the law goes beyond the scope of this article. However, understand that the laws vary from jurisdiction to jurisdiction, and a camp's own unique operation can have a bearing on how it hires its staff and structures its programs. Work with your legal counsel to understand how these laws and doctrines apply in your jurisdiction. In addition, understand that the ACA-Accreditation Standards for Camp Programs and Services, 1998 ("ACA Standards") address camp staff and staffing issues in a variety of areas and should be taken into consideration as well, whether or not a camp program is accredited. Standards in the industry, including the ACA standards, are an important measuring stick used by courts and juries (and experts) in determining whether a duty was owed, and whether that duty was breached in a given case (see discussion below).
Areas of Concern
Areas of concern regarding liabilities created by staff inevitably focus on the prospect of injuries to campers. Issues include the screening, hiring, training, and supervision of staff (including volunteers); disclosure to campers and families regarding staff and their competencies; and responsibilities of the camp for (and to) staff during off-duty times.
In addition, the camp must deal with independent contractors in such a way that their status does not change to one of employment and a resulting enlargement of exposure to the camp to claims arising from their conduct.
The priority, and the solution to these issues of a camp's liability, is of course the maintenance of a quality program — one that is fair to the campers and their families, reasonably manages the risks of the camp environment and activities, and reasonably meets the expectations of the camp community as a whole. Such a program will minimize serious incidents and create relationships that will facilitate an efficient and mutually acceptable resolution of problems — even serious injuries.
Hiring
A quality program will conduct personal interviews and background checks on its personnel and collect references. Background checks regarding younger staff members will be limited, if they are available at all, and references and personal interviews therefore take on added importance. ACA Standards (See Human Resources, Standard HR-4, and Appendix P) must be understood. Be prepared to defend against any deviation from those standards. The information sought by your background checks, interviews and references, and what you do with the information that you gather will be carefully analyzed by a potential claimant with the benefit of hindsight.
To avoid a successful claim of negligent hiring (or screening or retention), you must be able to show that you acted in these matters in the same way a reasonable camp professional would have acted in the same or similar circumstances.
Staff Competency
Your administration must understand and communicate the responsibilities of the staff member, which include not only competency in certain activity areas, but a demonstrated ability to deal with these energetic and creative young people. Campers today arrive with expectations, and with behavior and medical issues (as well as the traditional homesickness and medications) that present special challenges to staff, not encountered even ten years ago. It is your responsibility to understand these special challenges and hire accordingly. Your background checks must recognize that staff will have direct and close relationships with vulnerable young people.
ADA and state law employment issues are not within the scope of this article, but certainly merit your consideration. Consult with competent employment counsel.
Independent Contractors
You will be charged with a similar duty of reasonable care in your selection of independent contractors: Did you act reasonably in hiring a transportation company (or an independent driver) to carry your campers to an off-campus activity? What was the nature of your investigation or inquiries? Did you ask for references? Do you have any reason to believe that this person, or organization was not capable of handling the tasks assigned? Has your contractor conducted background checks of its staff?
Failure to scrupulously maintain independent contractor status, by refraining from directing the manner in which he or she does the job, for example, can have serious consequences. These consequences include fines and penalties and the payment of taxes that otherwise should have been withheld from an employee and, significantly, vicarious liability for the acts or omissions of that person, which might have been avoided if the person had in fact been treated as an independent contractor.
Training and Supervision
Training must be provided regarding equipment, activities, and supervision of campers. Staff members must be familiar with the inherent and other risks of the camp experience, including the activities, the environment, and the special issues presented by the campers themselves.
The camp administration, in determining and developing competencies, must address a variety of new activities (challenge courses, for example); new "toys" (including at the waterfront); and new environments (wilderness outings, and inner city or other urban projects or visits). In addition, staff members must be familiar with and adhere to policies of the camp, and, importantly, standards and accepted operating procedures within the camp industry. The ACA Standards are particularly pertinent. (See, generally, Human Resources Standards.) If an injury occurs, a competent lawyer for the injured person will look for a violation of the camp's own practices, policies and procedures, and to industry standards. The act or omission of the staff person will be measured against what was or should have been the expectations of the particular camp administration. Staff should receive training regarding unique issues involving today's campers and be aware of prominent issues of the time, including eating disorders, attention deficits, and sexual misconduct. Training must include the identification of these and other important issues and an understanding of corrective or adaptive measures accepted by the camp.
Training and supervision of independent contractors should focus on adherence to camp policies, and outcomes, and not otherwise on the methods of the contractor in performing his tasks.
Staff members should receive periodic reviews of their performance and relations with campers, by peers and supervisors. In this area, too, the ACA standards are helpful.
Employment and Other Contracts
The camp's relationship with its staff members should be governed principally by a written agreement of employment. The elements of such an agreement would include at least the following:
- The duration of employment, including the start and stop dates;
- Compensation;
- Duties and expectations, including specific activities, and responsibilities for cabins and equipment, dining room duties, general responsibility for campers; drug, alcohol, "exclusive relationships," and other prohibitions; acknowledgment of camp policies and standards;
- Off-duty issues, including a disclaimer by the camp of any responsibility for injuries suffered by the staff person during such time; (and perhaps a release signed by the camp staff member, of claims arising from off-duty activities);
- Available insurance (including workers' compensation insurance), and its coverage limitations;
- Causes and procedures for termination.
Camps should consult with legal counsel regarding the laws of their particular jurisdictions that might allow "employment at will" — that is, an employment relationship that may be terminated at any time, for any reason, without legal consequences. Camps will find it difficult under the laws of certain states to set out tasks and expectations, and the consequences of failing to perform satisfactorily, and, at the same time, maintain an employment at will relationship with the staff person.
Minors are not competent under the law to contract, but camps may wish to have the minor intern or counselor-in-training sign a document setting out the terms of employment and other elements of an employment contract. Seek the assistance of legal counsel on how you might commit a minor to an understanding of, and compliance with, these matters.
A camp may choose to have a single form of contract for a variety of employee functions — counselors, wranglers, maintenance personnel, etc. Camp policies and general expectations will not vary, though the description of duties, compensation, and certain other terms will.
Independent contractors also require written agreements. These may include a description of the responsibilities and outcomes expected; an express acknowledgment of the independent contractor relationship; the contractor's agreement to release the camp for injuries or other losses suffered by the contractor; the contractor's agreement to indemnify (agree to protect) the camp, in the event the camp is named in litigation resulting from the contractor's activities or otherwise; and the contractor's agreement to obtain liability insurance sufficient to cover claims, and to add the camp as an additional insured.
Insurance
The camp should be familiar with its own insurance policies, including protection from claims of campers and third parties. Particularly important will be an understanding of who is covered by such insurance (contractors? volunteers?) and what claims might be excluded (sexual misconduct, for example, is not included in all such policies).
Camp Agreement
Camps will (or should) have a camper agreement in which campers and their families acknowledge and assume the risks of the activities of the camp session; release (to the extent the law allows) the camp from claims arising from those activities; and, indemnify the camp from claims arising out of the camper's experience.
Marketing
The careful camp administration will be cautious in its representations of staff competencies, avoiding the use of extravagant promises of experience or abilities. If expertise in a certain undertaking is limited, either avoid that activity, or be very clear in describing staffing issues to your camp families.
If independent contractors are used, the administration should make it clear that independent contractors will be used for identified activities and that, while care has been taken in their selection, the camp is not responsible for what those independent contractors do. A family that has reason to believe that the contractor is an employee, or acting in some agency relationship, may attempt to hold the camp responsible for that contractor's misconduct.
Conclusion
As we said at the outset, a camp's staff is its interface with the camp family. The policies, standards, and codes of conduct, and the beautiful surroundings, quaint structures, and modern gear are of no consequence if staff members do not deal professionally with the young men and women entrusted to them. Campers and their families have a right to expect careful selection, training, and supervision of staff. A camp's failure to address these important issues can have serious consequences for the camp. A quality camp operation will give careful attention to these staffing issues.
Endnotes
1 Many states have enacted statutes defining the inherent risk doctrine as it applies to one or more recreational activities (e.g., many states have a "Ski Act," an "Equine Act" or a "Baseball Act." Other states, like Wyoming, have a statute applying the inherent risk ‘no duty' rule to a broad variety of recreational activities. It is important to understand these laws in your jurisdiction, and what impact they may have on your operation. For example, some laws require that providers include a written warning in any contracts entered into with participants. Other laws may restrict or affect the camp in other ways. Check with your legal counsel.
Originally published in the 2005 Spring issue of The CampLine.
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