Introduction
In this article, we will discuss recent developments in case law that reflect a new understanding and appreciation of the value of participation in “adventurous” activities. In the event of an injury or other loss, this acknowledgement — by the courts — of the social value of vigorous participation in sports and recreation may protect a camp from liability, as we describe below.
These developments notwithstanding, a camp’s priority should continue to be its focus on running a quality program, which includes an ongoing endeavor to identify and manage the risks of the camp experience. This risk management strategy will address issues of, for example, the camp premises and environment, staff training, camper supervision, and emergency response. Importantly, the camp should engage in fair, informative, and accurate information exchange with camper families about the camp’s activities and associated risks so that parents and campers can make informed decisions about the camper’s participation. We have discussed these matters in some detail in past issues of CampLine, including “A Camp’s Duty of Care — In Good Times and Bad,” (Winter 2009), and “Camp Risk Management: Sources and Strategies” (PDF, Winter 2010). We urge you to reread those articles and, as always, consult with informed legal counsel regarding the law applicable to your operation.
Over the years, the U.S. courts have become increasingly aware of the inherency of the risks of camp life (and other adventure activities) and their contribution to a child’s development and to society as a whole. This awareness has significant implications for matters of legal liability. To punish risk taking would alter the character of the camp experience, and it would hamper the development of a productive member of society.
Background
Experts tell us that the human brain usually matures in the late twenties or so. Until then, and particularly in teenage years and younger, the business of the brain is gathering information, including, pertinent to our discussion, by active play. This “camper brain” is wired for adventure. It collects experiences and data (and takes risks) in order to learn and serve as a resource for the later adult brain, with its greater capacity for reflection and thoughtful decision making. The camper brain, by its very nature, is less likely than the mature brain to analyze and to rationally assess risk and consequences. These are generalizations, of course. Youth development professionals tell us that a certain amount of judgment and strategic thinking can in fact be taught and retained by even the very young.
At camp, perhaps better than anywhere else, a child can encounter risks of play in an environment that is managed conscientiously for the personal development of the child. Experimentation, successes, and failures in this supportive community set the child on a path to becoming a healthy, secure, and productive member of society.
The risks of camp, emotional and physical, include issues of supervision, assessment of competencies and comprehension, and potential carelessness of the camper, camp staff members, and other campers. Many risks of camp activities are inherent; that is, they are such a reasonable and integral part of camp life that without them the camp experience would lose its basic character, value, and appeal. There is, however, a difference between “inherent” risks and what the law may consider “unreasonable” risks.
Inherent Risks: Generally speaking, a service provider (a camp, for example) has no legal duty to protect a participant from the inherent risks of an activity. More to the point, a camp will not be liable for an injury or other loss arising from an inherent risk of the activity that produced the loss. A participant in the activity — even a camper-age child — is legally deemed to have assumed such risks, whether or not those risks are actually known and understood by the camper. This is known in the law as the Doctrine of Primary Assumption of Risks (the “inherent risk doctrine” or “doctrine”). This is what we call the “classic rule,” developed through general case law. However, each state handles this doctrine differently, and may or may not subscribe to the doctrine in the manner described above. The doctrine may be defined by state statute(s), a state’s law may require that a participant have actual knowledge of the risk causing injury, a state may reject the doctrine, or other permutations. Nonetheless, defining the doctrine in its purest form is helpful for this discussion.
Unreasonable Risks: The camp does have a legal duty to protect its campers (and staff) from unreasonable risks. In calculating this duty of care, a court will consider the probability and severity of a loss that might occur and, important for our discussion, whether the interests of society are best served by tolerating or punishing exposure to those risks.
The courts in some states — with respect to activities deemed important to societal interests — have been more explicit than in the past in including the “simple carelessness” (but not the reckless or intentional misconduct) of a service provider, coparticipant, and others in the inherent risk doctrine. Perhaps that notion has been a part of the doctrine since its inception, but it is getting more attention, and that is good news for camps. Courts so inclined announce that they will not discourage (“chill” is the word often used in these courts’ decisions) active and vigorous participation in certain sports and recreation by finding liability for simple carelessness.
As we will see in the case studies below, not all camp activities qualify for application of the doctrine. The analysis of a court favorably inclined to the doctrine will be specific to the activity that produced the physical or emotional loss, in circumstances where imposing liability would chill active participation. As a result, a camp cannot presume that everything to which the camper is exposed will qualify for this treatment.
Sampling of Recent Case Law
Courts around the country have ruled to dismiss lawsuits based upon this general doctrine. Here are a few examples:
Case Study 1: Shivers v. Union School, 2013 N.Y. App. Div. LEXIS 5962
Seventeen-year-old Dawn Shivers participated in a school “competi¬tion night” held in her high school gym — specifically, a relay race known as the “human railroad.” In this race, student teams line up at a starting point and the first member of each team lies down on the gym floor and stretches his or her hands up. The second team member then straddles the first, and lies down in front of the prone participant, who then grabs and holds onto the feet of the second team member. This linking is repeated by all of the team members until they eventually return to the starting point. The winner is the team that first returns all of its members to the starting point. Shivers claimed that the girl behind her “dove down too early” and made contact with Shivers’ head, which then hit the floor. As a result, Shivers sustained a deviated septum. Shivers filed a lawsuit against the school, claiming that its negligence caused her injuries. The school asked the court to dismiss the suit before trial, claiming that Shivers voluntarily assumed the inherent risks by participating in the recreational activity and that the school was therefore not responsible or liable for her injuries. The appeals court agreed, dismissing the complaint. The court found:
“Athletic and recreation activities possess enormous social value, even while they involve significantly heightened risks. These risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability [that] otherwise [occurs]. The doctrine of primary assumption of risk provides that a voluntary participant in a sporting or recreational activity ‘consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.’”
The school here was able to demonstrate that Shivers had played the game before and clearly understood the inherent risks, not to mention the court’s comment that “any reasonable person” who had played or observed before would have understood the risks. The court dismissed Shivers’ claim.
Case Study 2: Trupia v. Lake George Central School District, 2010 N.Y. LEXIS 344
Compare Case Study 1 with Case Study 2, in which Luke Trupia, age twelve, was seriously injured during a summer school program. He fell while sliding down a banister, unsupervised. The banister sliding was not a scheduled activity. Luke’s family sued the school district on his behalf, claiming negligent supervision. The school district denied the school was negligent and claimed that Luke had assumed the risk that caused his injury; therefore, his claim should be dismissed.
On appeal, the court recognized the doctrine of primary assumption of risk, but rejected its application to the case. The court recognized that a minor child’s voluntary participation in recognized athletic and recreation activities had “social value” and thus justified the application of the doctrine as a bar to a claim brought against the activity provider in that context. The court stated: “. . . athletic and recreative activities have enormous social value even while they involve significantly heightened risks” and these risks “. . . may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise.” The court noted that primary assumption of risks as a bar to recovery is most justified for its role in “facilitating free and vigorous participation in athletic activities.” However, the court identified that banister sliding was a form of “horseplay” and did not fall into the category of recognized “athletic and recreative” activities worthy of protection under the doctrine. The court emphasized that the school district had a duty to supervise the children in its charge, and little would be left of that duty if the doctrine were applied in this case.
Case Study 3: Morgan v. Ohio Conference of the United Church of Christ et al., 2012 Ohio App. LEXIS 385
Morgan agreed to attend a camp as a teacher chaperone for a group of sixth grade students. As he had done in all previous years, Morgan agreed to chaperone a “night hike,” led by Marsh, one of the camp’s leaders. Marsh described the purpose of the night hike was to “use your other senses when your eyes were not as heightened as during the daylight.” For the night hike, Marsh picked an established trail (the same trail he had chosen for other groups over the last several months). Marsh told the group that the clear evening and moon would allow the trail to be seen. Marsh stood in the middle of the creek bed with his flashlight and helped every child cross by holding their hand, and then helped Morgan cross. While Marsh was counting the kids on the other side of the creek, he saw Morgan shift his weight and fall. Morgan severely injured his shoulder and arm in the fall.
Morgan sued the camp owner, claiming that the camp was responsible for Marsh’s (the leader’s) negligence, which caused his injuries. The camp sought dismissal of the suit before trial, claiming that Morgan’s injuries resulted from the inherent risks of the activity, and that as a result, the camp owed no duty to protect him from those risks. The court found that the doctrine applied to bar Morgan’s claim. The court explained that primary assumption of risks applies in cases involving sport and recreation activities and that under the doctrine, a plaintiff who voluntarily engages in a recreational activity or sporting event “assumes the inherent risks of that activity” (whether those risks are known to the plaintiff or not) “and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.” In other words, the defendant owes no duty to protect the plaintiff from the inherent risks; and without a duty, there can be no negligence. The court stated that the rationale behind the doctrine is that certain risks are so intrinsic to some activities that the risk of injury is unavoidable. The court found that the inherent risks of a night hike included tripping, slipping, and falling, as well as the leader’s subjective judgment (including any assessment errors) in choosing the specific trail. Since Morgan hadn’t claimed that the leader’s conduct was intentional or reckless, the court didn’t address that issue.
Case Study 4: Eriksson v. Nunnick, 2011 Cal. App. LEXIS 29
The parents of seventeen-year-old seasoned competitor Mia Ericksson sued her coach after Mia died during a jumping competition when her horse tripped, causing Mia to fall and the horse to fall on Mia. The lower court dismissed the case based on, among other things, primary assumption of risks. The appeals court reversed, finding there were questions of fact regarding whether the coach had “increased the risks beyond those inherent in the sport,” thus making primary assumption of risk inapplicable to the case. Apparently, there was evidence that the coach was aware that the horse was injured and not fit to ride, but convinced the teen and her mother otherwise. Citing to other case law including the seminal California Supreme Court case of Kahn v. East Side Union High School, 31 Cal. 4th 990 (2003), the court noted the policy reasons for applying primary assumption of risk in cases involving the important learning that goes on between participants and their coach or instructor:
“A significant part of an instructor’s or coach’s role is to challenge or ‘push’ a student . . . to advance in his or her skill level . . . and . . . fulfillment of such a role could be improperly chilled by too stringent a standard of potential legal liability . . . .” Application of primary assumption of risks is appropriate if the “. . . instructor’s alleged liability rests primarily on a claim that he or she challenged the player to perform beyond his or her capacity or failed to provide adequate instruction or supervision before directing or permitting a student to perform a particular maneuver . . . .
“That an instructor might ask a student to do more than the student can manage is an inherent risk of the activity. Absent evidence of recklessness, or other risk-increasing conduct, liability should not be imposed simply because an instructor asked the student to take action beyond what, with hindsight, is found to have been the student’s abilities. To hold otherwise would discourage instructors from requiring students to stretch, and thus to learn, and would have a generally deleterious effect on the sport as a whole.”
However, in this case, the court found that if in fact Mia’s coach failed to provide a fit animal (or misrepresented the animal’s condition) to begin with, she increased the risk to Mia beyond that inherent in the activity — in other words, the coach had a duty, at a minimum, to provide a fit horse. Again citing to other case law: “To look at the situation another way, requiring the defendant to provide a safe horse . . . could have no chilling effect on the activity itself, nor would it interfere with the ability of the instructor to teach the student new or better skills.”
The court found that these principles were in line with the underlying policy of not creating a “chilling effect on the activity itself, nor . . . interfer[ing] with the ability of the instructor to teach the student new or better skills.”
The case was returned to the lower court for a finding, among other issues, on whether or not the coach was liable on claims of negligence or whether primary assumption of risks applied to bar the parents’ claims.
Case Study 5: Cann v. Stefanec, 2013 Cal. App. LEXIS 497
In a more recent case, the court cited to the California Supreme Court case of Nalwa v. Cedar Fair, 290 P.3d 1158 (2012) in its opinion applying the doctrine: “Allowing voluntary participants in an active recreational pursuit to sue other participants or sponsors for failing to eliminate or mitigate the activity’s inherent risks would threaten the activity’s very existence and nature . . . . Active recreation, because it involves physical activity and is not essential to daily life, is particularly vulnerable to the chilling effects of potential tort liability for ordinary negligence.” The Nalwa court found the doctrine applies to both sport and nonsport activities — in this case, bumper cars. A finding of liability against the defendant because bumper cars “bump,” the Nalwa court concluded, would alter the fundamental nature of the activity.
Case Study 6: Anglund v. Mountain Creek Resort, 2013 N.J. LEXIS 570
This involved a claim between a colliding skier and snowboarder as opposed to a claim against a provider, but nevertheless, resonates with our discussion. The New Jersey court, in applying a standard that only reckless or intentional conduct is “actionable” as between sporting participants held:
“One might well conclude that something is terribly wrong with a society in which the most commonly accepted aspects of play — a traditional source of a community’s conviviality and cohesion — spurs litigation. The heightened recklessness standard recognizes a common-sense distinction between excessively harmful conduct and the more routine rough-and-tumble of sports that should occur freely on the playing fields and should not be second-guessed in courtrooms.”
Conclusion
Again, these developments in the law are encouraging, but they are no substitute for the risk management strategies described above and elsewhere. Camp managers have long understood the value of the adventures they offer, well managed and well communicated to families. Those managers can continue their good work knowing that the courts are coming to a shared understanding of the value of the camp experience. So, ultimately, a camp is still best served by diligence in the development of its risk management strategies, including, for example, addressing issues of staff training, activity supervision, and effective information exchange with camper families — whether or not the laws likely to be applied to a camp tend toward the interpretations discussed here. Information — on a Web site, in a brochure, in a camper agreement — should be thoughtfully considered to impart sufficient perspective to campers and parents on the activities, risks, and, importantly, their responsibilities. This information, including any camper agreement, should be carefully reviewed or crafted by legal counsel familiar with applicable law. So, as the law evolves to support camp life and activities, a camp should continue in its ongoing effort to run a quality program, including the endeavor to identify and manage the risks in the best interests of its campers and staff.
*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 relevant 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 rgregg@gregglaw.net; www.rebgregg.com.
Catherine Hansen-Stamp is a practicing attorney in Golden, Colorado. She consults with and advises sport, recreation, and adventure program providers on law, liability, and risk management issues. Hansen-Stamp can be reached at 303-232-7049 or reclaw@hansenstampattorney.com; www.hansenstampattorney.com.