The Fall 2019 issue of CampLine included a summary of the year’s Hotline calls. The American Camp Association (ACA) categorized the year’s calls into various areas. They found a full 65 percent of calls related to camper health and medical issues, general camper issues (primarily behavior related), abuse issues, and parent behavior issues. A camp’s reaction to these statistics may be to hunker down, broaden their “safety net," promise safety, and declare that they will protect campers from harm. This may include describing to camper families and the public what the camp is doing to protect its campers in its effort to “ensure" campers’ well-being while at camp. This approach is well-meaning, but ultimately unrealistic and not sustainable — and it will backfire when someone in an angry call or lawsuit turns their back on the camp, saying, “But you promised."

Considering these statistics, what is a camp to do? Instead of promising safety, a camp’s approach should be realistic and strike a balance among sharing important information with camper families about:

• Camp’s efforts to manage risks
• Value of risk
• Limits on the camp’s efforts (including the reality of inherent risks)
• Camper and parent responsibilities

This partnering with camp families (Gregg & Hansen-Stamp, 2006) is critically important in this age where parents are more boldly demanding assurances, and campers are arriving more risk averse and perhaps less prepared for the camp experience. In other words, partnering with parents doesn’t mean the camp must compromise on its requirements, but that the camp and parents should exchange accurate and valuable information relevant to the camp experience, and, importantly, that parents must be held accountable for their responsibilities, including the terms of their agreements with the camp.

The primary focus for the camp should be running a quality program aligned with its mission. This approach includes the camp’s ongoing effort to understand and manage risks, considering the potential risk of loss to both the camper and the camp, and having a solid emergency and crisis response plan in place in the event of an injury or other loss. Running a quality program includes examining the camp’s duty of care — and the limits of that duty — in this most extraordinary relationship between camp and camper.

Examined here are some current issues raised by the CampLine report and highlights of the camp’s duty of care, including responsibilities of supervision and how a camp can strike a realistic balance with camper families regarding some of these challenges.

Hotline Calls and Current Case Law and Trends

Recent Hotline calls, case law, and trends reflect:

• Increasing health issues — including in the area of mental, emotional, and social health (MESH), and campers’ increasing use of medications, frequently for mental or behavioral issues.
• An uptick in reports of sexual abuse or misconduct (camper to camper, staff to camper, or third party to camper), whether arising at camp or simply disclosed at camp.
• A rise in parental misconduct — including parents’ efforts to bend the camp rules (e.g., allowing the child to sneak a mobile phone into camp), failing to truthfully disclose their child’s health issues, or enrolling a child without notifying a former spouse who then demands the child not attend/be sent home from camp.
• A steady stream of camper behavior issues including improper or illegal use of drugs or other substances; missing campers or campers in unknown locations (e.g., outside their cabin at night with other campers); mental health-related issues such as eating disorders, cutting, or other self-harm, and suicidal ideation.

The Camp’s Duty of Care and Limits on the Duty

As we have explained previously, a camp’s (and its staff members’) legal duty of care is to exercise reasonable care to protect its campers from unreasonable risks of harm. The standard by which the camp will be measured — the question for a jury, for example — is whether the camp (including its staff members) acted as a reasonable camp/staff member would have acted in the same or similar circumstances. When dealing with minors, some courts refer to the duty in loco parentis. Courts interpret this to mean that the organization “stands in the shoes" of the parent in terms of its duty of care. That is, the camp must exercise the degree of care that a reasonably prudent parent would exercise in the same or similar circumstances. Again, this is typically construed as a duty to exercise reasonable care, not a requirement to assure safety. Over the years this “in loco" concept has matured to the point that acting in the place of the parent, in a camp context, includes a commitment to the managed risk-taking that is so vital to a child’s personal development (Gregg & Hansen-Stamp, 2018). 

A variety of factors can reduce or eliminate the camp’s duty of care, including the following:

• In many states, those (adults or minors) who voluntarily participate in adventure and experiential activities assume the inherent risks of those activities. As a result, the camp has no duty to protect a camper from injuries resulting from those risks and no resulting liability. In addition, courts in an increasing number of states will, in appropriate circumstances, tolerate simple carelessness by co-participants and staff in the context of sports and recreation activities — characterized to be of significant social value. These courts hold that this carelessness is integral to and an inherent risk of vigorous participation, and, in the case of staff, in pushing the student/camper to learn new skills. The courts’ rationale for these rulings is to avoid a “chilling effect" on vigorous participation and, in the teaching context, on the student’s learning and growth. A camp must know the law in its jurisdiction and make sure camper forms and information reflect those realities.
• In most states, camper families can agree to release the camp, in advance, from liability for its negligence. In some states, a parent can release these rights for their minor child. This provision is usually incorporated into a larger “participant agreement" that identifies camp activities, risks, and contains an acknowledgment and assumption of risks and other important provisions. A camp should work with its legal counsel to develop an agreement that is consistent with applicable law and fits the camp’s culture.
• A camp’s duty to supervise children in its care is tempered by the law, which commonly recognizes that accidents will happen and that inherent risks can cause injury. In other words, a recognition that the duty to supervise is not constant and that supervision can be deemed reasonable even if a child suffers injury. 

Considering the camp’s duty of care and the current challenges, how does a camp respond?

A Central Concept — the Information Exchange

We know that the flow of information between the camp and its camper families is critical before, during, and after camp. We also know there is a tension between marketing and the realities of the camp experience. Camps are often reluctant to be honest with camper families, afraid that they will flee to the next camp that has assured camper safety. This isn’t likely. Camps that realistically relay the value of their programs and their efforts to manage risks, along with the inherent and other risks associated with the camp experience and the campers’ and parents’ personal responsibilities, are in a stronger position. These camps are more likely to have happy parents and satisfied campers who have grown from their experiences, and they can better stand behind their programs if they are tested by a parent’s complaint or, worse, a lawsuit.

On a basic level, camps should inform parents about the camp environment, activities, and the reality of risks inherent in and integral to the camp environment. Parents should understand the limits of the camp’s supervision and the reality of free, unstructured, or independent time. Parents should also understand the value of risk in a child’s growth and development. Parents should know what is expected of them in “partnering" with camp as well as their children’s (campers’) responsibilities associated with camp. Terms and conditions of enrollment and a participant agreement can provide some of this information, as can trip information and a general risk and safety statement on the camp’s website. A camper code of conduct signed by the parent and child can further commit camper families to upholding the camp’s rules and respecting its culture. During camp, a camper orientation can enforce the camp’s expectations.

On the flipside, parents need to disclose to the camp accurate information regarding a camper’s health and medical condition, commit to its accuracy, and understand the ramifications if they don’t. They should agree to update the camper’s health condition and recognize and agree to the Essential Eligibility Criteria necessary for their child’s participation in camp activities.

This flow of information between camp and camper families, if set up appropriately, helps:

• Develop trust
• Hold parents and campers accountable
• Minimize the risk of loss to the camper and the camp
• Allow the camp to focus on running a quality program

Parents who are well informed, aware of the risks, and clear on the camp rules may be less likely to file suit in the event of an injury or other loss. In other words, they have become partners with the camp in producing a quality experience.

Important Legal and Risk Management Issues to Address Related to Current Issues

1. For camps that have not already dealt with sexual abuse and molestation, this area of the law is worth some time and consideration, including a new approach that involves a revamp of risk management systems. This revamp includes discussing these new realities with camper families (email or online), tasking parents to talk with their children ahead of camp, and orienting campers upon arrival. This is a huge issue for all organizations serving youth, and many organizations, including ACA, have resources for camps as they undertake this effort. Numerous legal cases have dealt with camp, school, religious institutions, and many other organizations fighting claims of sexual abuse occurring on their watch. And camps were recently in the news on this subject (see Crime Stoppers grid: crime-stoppers.org/wp-content/uploads/2019/10/Spreadsheet-of-Camp-Molestations-8-5-2019.pdf).
2. Include a provision in your terms regarding parental authority and responsibility. This takes the responsibility for resolving custody disputes (regarding enrollment) off the camp’s shoulders, resting it squarely with the parent registering the child. If there is a dispute, the child will not be enrolled, or, if enrolled, will be sent home if the parents or other parties cannot resolve their dispute, with the enrolling parent indemnifying the camp for expenses and liabilities arising from the dispute.
3. Address on your website and in your participant agreement the limits of a camp’s supervision responsibilities and the realities of free, independent, and unstructured time, including, if it is true, no or limited supervision during sleeping hours (see Amoako v. Church of the Messiah United Methodist Church, 2015).
4. Implement a proactive understanding of and compliance with the Americans with Disabilities Act (ADA), and develop essential eligibility criteria for your camp activities that can back up and support your medical screening. Access your regional ADA center for valuable assistance in this endeavor (adata.org/find-your-region) and talk with a qualified lawyer.
5. Put some teeth in your collection of health and medical information — whether in the medical form, the participant agreement, or in other Terms and Conditions, signed by the parent. This includes the parent’s commitment to disclose honest and complete information, the camp’s right to separate the child for a parent’s failure to disclose a medical condition, and the reasons for — and limitations on — the impact of the camp’s collection of this information. For example, although the camp will review submitted health information and may allow participation, the camp cannot anticipate or eliminate risks or complications posed by participant’s mental, physical (including fitness level), or emotional condition.
6. Include in your terms or other agreements the camp’s right to separate a child, at the camp’s discretion, if the child presents a medical risk, a safety or behavioral issue, or otherwise conducts him or herself in a manner detrimental to the program.
7. Develop a code of conduct (including positive behavior that is expected and welcomed) and rules for the child and parent, including limits on a parent’s ability to contact the child during camp, to send treats, or to send a mobile device, for example.
8. Make an effort before and during the program to provide opportunities for campers to take on age-appropriate responsibilities — including in your ongoing risk management efforts. Campers can and should become team players in the risk management equation, and even young campers will be empowered and rise to the occasion.
9. Develop a Risks and Safety Statement for the camp website or app. This should include a balance of information regarding the positive and unique aspects of the camp as well as the reality of inherent and other risks integral to camp activities. Dare to emphasize the value of risk that contributes to the thrill of the adventure, the opportunity to learn, and the catalyst for growth. Address a camper’s personal responsibilities and the camp’s efforts to manage risks, coupled with the reality that the camp cannot guarantee a camper’s safety.

An Opportunity for Reevaluation

ACA’s annual compilation and publication of Hotline results and current issues in the industry offers camp management a chance to reflect on its own experiences in the identified trouble spots and elsewhere. Take an opportunity each year to take a fresh look at your programs — aligned (or not) with what ACA Hotline is finding.

Note that many organizations, in fact, recognize the importance of regular attention to what they are doing and how they are doing it — to systematically reevaluate even their most sacred practices and policies, asking, for example: “If we were to decide, now, for the first time, to do (an activity), would we do it? If so, why, and how would we do it?" It is an important opportunity for the organization to reexamine its programs and activities to determine if they are indeed aligned with the camp’s mission, relevant ACA accreditation standards, and taking into consideration applicable laws and practices in the industry. 

In the corporate world, this is sometimes referred to as “sun setting"; that is, dropping the curtain on a practice or practices and essentially starting over with fresh ideas and goals. Such a practice requires hard work and is sometimes best accomplished systematically over multiple years, addressing only a few activity areas at a time, perhaps influenced by trends or concerns in the industry. The task is to reexamine whether current programs and activities meet the organization’s mission, set or reset goals, identify existing or new programs that will best meet those goals, develop or refine a strategy for managing the risks of the particular program, and then launch (or relaunch) it.

Additional Resources

• The CampLine — Releases and Related Issues: Revisited
• The CampLine — Sexual Abuse: Liability Issues Revisited
• The CampLine — After-Camp Contacts between Campers and Staff: A Problem? Whose?
• The CampLine — Who’s in Charge?
• The CampLine — The Americans with Disabilities Act Revisited
• Kannakuk Child Protection Plan

References

• Gregg, C. R., & Hansen-Stamp, C. (2006, Fall). Legal & partnering — really? Camping Magazine, Martinsville, IN.
• Gregg, C. R., & Hansen-Stamp, C. (2018, Fall). A new child in the wild. The CampLine, XXIX(2), 14-17.

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 email rgregg@gregglaw.net; 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. She can be reached at 303-232-7049, or email reclaw@hansenstampattorney.com; hansenstampattorney.com.