Off Duty and the Camp Is My Playground (What Could Go Wrong?)

Catherine Hansen-Stamp and Charles R. Gregg
November 2015

I. Introduction

The American Camp Association (ACA) has asked us to address issues associated with camp staff off duty use of camp premises, facilities and equipment. Several ACA Camp Crisis Hotline calls prompted interest in addressing this topic–including the following:

  • During camp season, staff are allowed to use camp facilities and equipment in their time off. A group of staff decided to use the jet skis on the lake. The camp only allows individuals who are trained to use the jet skis, to use the skis. A guest asked to use a jet ski. Staff said no, because the guest was not trained. The guest took a jet ski out anyway and was not stopped by the staff present. He caused an accident resulting in serious life-threatening bodily injury to a staff member, and significant damage to the equipment.
  • Staff are allowed to borrow camp vehicles during their off time. A staff member borrowed a camp vehicle and subsequently caused an accident that did not harm anyone, but totaled the camp vehicle.
  • In their off time, a group of staff decided to canoe across the lake. The weather turned severe and while no one was seriously injured, many camp canoes and equipment were significantly damaged.
  • A camp does not have a policy regarding staff use of camp equipment in their off time. During time off, two staff members decided to borrow a camp vehicle and were subsequently in an accident that caused serious (but not life-threatening) injury to both staff members, a third party who was in another vehicle, the camp vehicle, and private property where the accident occurred.Z

Camps, with varying degrees of oversight, allow off duty camp staff1 access to camp premises, facilities, and even equipment and animals. This is logical given the unique circumstances of camp employment. Camp staff (particularly at residential camps) typically don’t ‘punch a clock’ and go home, but instead, live on camp premises, at least during the camp season. As a result, when staff members are off duty, they are certainly moving about the premises. Camps may allow and even encourage staff to ‘get outdoors’ during their off time to take advantage of what the camp has to offer (in fact, staff who enjoy recreating outdoors may see these expected opportunities as a coveted benefit of taking the job).

If you allow staff more than the most limited access to the camp premises during off duty time, consider the legal and risk management issues of doing so. And, the risks increase if you allow staff to invite guests to join them. Do your privileges extend to both adult and minor-aged staff? Providing access that has been carefully considered (including an analysis of the attendant risks) can be a wonderful privilege for your staff. Failure to do so can create big problems.

Consider a two-pronged approach to off duty staff access to the camp and its amenities — identifying and managing the risks and associated risk of loss: 1) to staff, their guests or other third party/s and 2) to the camp. The following is intended to give you a legal and practical perspective on these issues. As always, we recommend that you work with legal counsel, familiar with the laws in your jurisdiction, to guide you in your decisions relating to these important matters.

II. Camp Staff Use of Camp Premises, Facilities or Equipment During Off Duty Time

A. Legal Exposure

Staff members or others could bring a variety of claims against the camp, depending upon the jurisdiction and the specific facts of the case. Here is a sampling:

1. Injury to camp staff:

In most states, worker’s compensation ‘no fault’ insurance covers staff injuries arising out of and in the course of employment, and staff (generally) can’t sue the employer for work related injuries.2 Instead, the injured staff member must rely on applicable Workers’ Compensation benefits. However, the picture changes if the staff member is injured when he or she is off duty and not acting within the course of his or her employment. Predictably, the parties may dispute whether the staff member’s injury occurred inside or outside the course of employment.

If a camp staff member is injured while recreating or simply hanging out on camp premises while off duty, staff could have a legal claim against the camp. This claim would typically be one falling under the camp’s premises liability.3 That is, a landowner’s duty to exercise care towards those present on its premises. In many states, this duty of care is defined by the category of the camp entrant (labeled ‘invitee’, ‘licensee’ or trespasser’); in some states the court has eliminated a distinction in the duty owed to licensees and invitees (and in some circumstances, even trespassers) and the duty is simply one to exercise reasonable care towards the camp entrant, under the circumstances. (Discussion of a camp’s endeavor to meet this duty of care is not within the scope of this article, but warrants discussion with your insurance representative and legal counsel.)

Premises liability notwithstanding, most states have enacted laws (generally termed ‘recreational use’ laws) that reduce or eliminate a landowner’s duty of care to persons on the property for recreational purposes. These laws (varying widely in their language) are intended to encourage landowners to offer others access to their property for recreational purposes. Basically, if the landowner offers such access (oftentimes defined as (something like) sports or other recreational activities -- biking, skiing, horseback riding, bird watching, hiking, swimming, rock climbing) at no charge, the landowner can obtain the protection of the law. That ‘protection’ consists of a reduced duty of care to entrants. Unlike the traditional duty of care (described above), the landowner’s duty is generally to refrain from more egregious misconduct (in the case of Colorado’s act, e.g., ‘willful or malicious failure to guard or warn against a known dangerous condition….’ C.R.S. 33-41-101). Your jurisdiction’s version of this law is worth your legal counsel’s careful study, considering that some laws may be significantly broader than others in providing landowners protection. In any case, however, potential application of this law, in the camp’s favor, shouldn’t take the place of developing an appropriate plan for staff off duty use of camp property.

As we discuss in Part B below, the camp should consider obtaining from staff, in advance, an agreement containing, among other important provisions, an acknowledgment and assumption of risks and an agreement of release and indemnity (“risks and release agreement”), that addresses staff member’s access to and use of camp premises, facilities and equipment – including during off duty time. The document should identify, in appropriate places (and consistent with applicable state law), that it is not intended to infringe upon existing workers’ compensation benefits to which the staff member may be entitled for injuries arising out of and in the course of the staff member’s employment. Such an agreement can provide some protection from claims, should an incident arise out of a staff member’s off duty use. A state’s recreational use act, if applicable, may, in the event of a lawsuit, provide an additional defense to the camp, in appropriate circumstances. Importantly though, neither of these defenses would be successful, in most jurisdictions, if the camp was charged with more egregious misconduct (depending upon the jurisdiction’s common or statutory law) —something akin to gross negligence, or willful, wanton or reckless misconduct.

Note regarding minor staff members (those under the age of majority —18 yrs. of age in most states).

Consult with your legal counsel regarding the camp’s legal exposure related to off duty minor-aged camp staff access to camp premises. A camp is likely considered in a custodial relationship with these minor staff members (sometimes termed ‘in loco parentis’ (in the place of the parent)) similar to its relationship with minor campers. This relationship triggers duties (or degrees) of care that vary between jurisdictions – duties not present with adult staff. Although the legal doctrines discussed above will come into play, a camp may have oversight and/or supervisory responsibilities to (even) off duty minor-aged camp staff members, stemming from this custodial relationship.4 Carefully consider these issues with your legal counsel in crafting a plan for staff off duty use (see discussion in Part B, below).

2. Injury to Staff member’s guest:

What if a staff member’s guest (not employed by the camp, but invited or permitted by the camp to be present) suffers injuries while recreating or accompanying the off duty staff member on camp premises?

Depending upon the nature of the incident, the injured guest may bring a premises’ liability claim against the camp. Or, if the guest injuries resulted from the off duty staff member’s use of camp equipment with the camp’s (express or implied) consent, perhaps a claim of negligent entrustment (premised on the fact that the owner entrusting the equipment to the person knew or should have known that the person was unfit or incompetent to operate the equipment). If the camp had the guest sign a risks and release agreement in advance, the camp might be in a position to obtain pre-trial dismissal of claim/s brought against it by the guest. In addition, as mentioned above, a jurisdiction’s recreational use act might limit the camp’s duty of care, assisting the camp in its defense. Again, these defenses would not be successful, in most jurisdictions, if the camp was charged with more egregious misconduct.

3. Injury to third party caused by staff member or staff member’s guest’s conduct:

Consider the Hotline example: if the camp permits (expressly or impliedly) the off duty camp staff member to take a camp vehicle and the staff member causes a vehicle accident and resulting injuries to another staff member or a third party, the injured party may have a claim against the camp for negligent entrustment. Although the camp might seek indemnity (reimbursement) from the staff member based on an indemnity provision contained in a risks and release agreement he or she had signed in advance, such an attempt may be difficult if the staff member has no funds or insurance available to fulfill his or her indemnity obligation. Note that whether or not one of these individuals had a valid claim against the camp, the incident would likely trigger the camp’s vehicle insurance policy, with multiple ramifications for the camp.

What if an off duty staff member’s guest injures a third party – including a staff member? In the Hotline example, when asked whether the guest could use a jet ski, a staff member said no, because the guest was not trained to use the ski. The guest ignored the directive (based on a camp rule), and used one anyway (staff present did not stop him), severely injuring another staff member. We don’t know the details, but the camp may have increased its potential legal exposure to the injured party because it failed to enforce rules for use that were followed by one staff member and ignored by another.

If an off duty staff member’s guest injures a camper (for example, alleged sexual abuse), the camp may have liability exposure based, in part, on an on duty staff member’s failure to properly supervise the camper. Note as well (as we discuss below), a camp likely does not criminal background check or screen a staff member’s guest. As a result, without procedures in place to control the locations of camp staff members’ guests when campers are present, the camp may be exposed to liability (under premises laws, or general negligence) for the actions of a guest, if the guest harms a camper. The camp might seek indemnity from the guest for claims against the camp based upon the guest’s alleged misconduct but, as discussed above, such an attempt may be fruitless. Insurance ramifications exist as well (e.g., does a camp have sexual abuse and molestation (SAM) insurance, and will that insurance protect the camp in this type of scenario?).

4. Damage to Camp or Third Party Equipment or Property

Clearly, the camp will suffer loss if an off duty staff member or his or her guest damages camp equipment or property (including animals). The camp may be able to obtain reimbursement from its insurance policy for the loss, and/or seek indemnity from the staff member or guest, again, with the same challenges.

If, as in the Hotline example, the off duty staff member or guest damages another party’s property or equipment offsite, claims against the camp for negligence or negligent entrustment may follow.

In addition to the camp’s legal exposure and financial loss, the above and other scenarios can certainly damage the camp’s reputation in the local community and beyond, distract it from its camp programming and hamper its marketing efforts. Bottom line, the risks of being uneducated and uninformed weigh in favor of the camp making thoughtful decisions about whether and to what extent it allows staff members, or their guests, to have access to camp premises, facilities and equipment.

B. Informing the Staff, Protecting the Camp

A camp cannot afford to be casual about staff members’ and their guests’ use of camp premises, facilities, or equipment during their off duty time. If the camp allows this use, it should take steps to put a structure in place that considers risk management issues unique to the camp and its location, allows the use to occur in a manner that holds the staff member to certain rules and policies, and appropriately protects the camp from legal exposure.

1. The Employment Agreement or Employee Manual.

In an employment agreement, an employee manual or elsewhere, the camp should make clear to the staff member what is considered on and off duty time. That is, when (and when not) is the staff member expected to be conducting his or her job responsibilities for the camp? In this document the camp will certainly clarify the scope and nature of the staff member’s job responsibilities when on duty. Importantly, the camp can identify opportunities — and limitations — on the staff member’s activities when he or she is off duty and on camp premises. This could include, for example, whether or not the staff member is able to access the camp property for recreational purposes and whether he or she can use camp equipment or have access to certain facilities (for example, an indoor climbing wall or an outdoor challenge course). If the camp allows staff off duty access, the document should identify (or refer to pertinent staff manual provisions that describe) restrictions on, or requirements associated with the use. Examples include:

  • Restrictions on use of certain equipment; requiring inspection of equipment before and after use, and logging in and out to document use and condition of equipment;
  • Prohibiting access to portions of the premises (for example, a challenge course or a lake, or in areas where camper activities are taking place);
  • Limiting the nature of activities (recreational or otherwise) an off duty staff member can engage in while on camp premises;
  • Limiting access to activities unless the staff member has the training required (e.g., an indoor climbing wall);
  • Stating whether or not the staff member can invite a guest to the premises during off duty time, and any restrictions on the guest’s activities;
  • Any limitations on minor staff members’ off duty use of camp premises.

A camp should be clear that a staff member’s employment may be terminated for violation of the camp’s rules and policies underlying these restrictions.

2. Rules and Policies for Off Duty Staff Members or their Guests

Rules and Policies (simple and clear) should mirror the camp’s limitations or restrictions set out in the employment agreement or employee manual – providing the details needed for staff to understand the scope of permitted off duty use of camp premises, facilities and equipment. We use these terms loosely, but developing your written directives/guidance should be carefully considered. Develop a plan for use that is realistic and do-able, and that will hold staff accountable to the plan. An essential element is regular ‘all staff’ training on the plan (see below). The camp may already have rules and policies in place for its outside user groups – the camp may decide to apply all or part of these protocols to off duty staff members and/or their guests, while they are recreating or moving about the camp premises.

A few specific concerns regarding staff guests include:

  • A guest is likely not screened as a staff member would be (e.g., criminal (including sexual misconduct) background check). As a result, the camp would need to follow its established rules for access to premises by third parties (e.g., check in with the front office, wear a badge, etc.);
  • The guest may not be capable of or trained in the activity selected by your off duty staff member (e.g., the guest doesn’t know how to swim, drive a jet ski or ride a horse).

Other concerns:

  • Off duty camp staff use of camp vehicles, including autos, trucks, ATVs, etc. This use or non-use should be explicit, and reviewed and discussed with your insurance representative and legal counsel.

3. Staff and/or Guest Acknowledgment and Assumption of Risks and Release and Indemnity Agreement to address Off-Duty Use of Camp Premises

As suggested above, the camp should strongly consider having its staff and their guests sign a document containing, among other provisions, an acknowledgment and assumption of risks and release and indemnity agreement. These documents should not be considered an overall panacea -- “with this document, we don’t need a plan because we won’t be found liable!” To the contrary, these documents are simply one piece of the camp’s risk management picture and overall plan. Yes, a well written agreement like this, reviewed by informed legal counsel and consistent with applicable law, can provide the camp protection from some liability, and serve as an important informational tool for the staff member or guest regarding his or her understanding, acceptance, and assumption of risks and responsibilities. However, such a document does not take the place of careful attention to a thoughtful plan geared to address staff (and their guests) off duty use. As discussed above, use of these agreements with staff should clearly identify that the document is not intended to impinge upon the staff member’s entitlement to worker’s compensation benefits for injuries arising out of and in the course of the staff member’s employment for the camp.

4. Camp Liability Insurance

In developing a plan for staff off duty use, work with your insurance broker or representative. Your insurance representative (in conjunction with the camp’s underwriter) can assist you in understanding the scope of the camp’s insurance coverage and the camp’s potential exposures emanating from staff (and staff guest) off duty use of camp premises, facilities, and equipment. Importantly, the camp’s coverage may include exclusions or required conditions precedent to certain coverage that can be adjusted (e.g., adding supplemental coverage.) or at least understood, so that the camp can develop its staff off duty use rules and policies accordingly.

C. All Staff Training: Off Duty Use and Adherence to Rules and Policies

If you set up a structure, your staff need to understand it and follow it! All staff training (for those in the office and in the field) should identify the important safety and risk management issues associated with off duty use, and emphasize that staff must be their ‘brother’s/sister’s keeper’ and help fellow staff members make sensible decisions and follow the plan. If staff are found ignoring the plan, breaking the rules, or sneaking out prohibited equipment, they should understand the ramifications of their conduct — up front —.

III. Conclusion

Understand the risks associated with camp staff off duty use of your camp. Develop a plan that holds staff accountable to clear and simple rules and policies, and appropriately protects the camp from legal exposure. Staff off duty use can be a great privilege and a valuable benefit, if allowed by the camp in a thoughtful and informed manner.

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 rgregg@gregglaw.netwww.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 e-mail reclaw@hansenstampattorney.com;www.hansenstampattorney.com.

Notes

1 We are focused on paid camp staff – whether full time or seasonal; volunteer staff enter into the equation as well, although use of volunteers raises additional risk management and legal issues not covered in this article.

2 Workers compensation insurance typically bars a worker injured in the scope of his or her employment from suing the employer for negligence (but likely not more egregious misconduct) – hence the term ‘no fault.’  However, there are exceptions and variations to this general principal and a camp should work with its legal counsel and insurance representative to understand the applicable workers compensation laws in its jurisdiction.

3 This is one example; a plaintiff may bring legal claims against a camp based upon other theories of liability.

4 See our previous Campline articles for a discussion of a camp’s duty of care to minors: “Child Sexual Abuse: Liability Issues Revisited” (Fall, 2012), “A Camp’s Duty of Care – In Good Times and Bad” (Winter 2008) and “Reasonable Supervision and the “Safe” Environment - What are the Issues?” (Fall 2005).

5 Considering differing state laws on the “employment-at-will’” doctrine (the concept that an employer can terminate an individual’s employment at any time, for any reason, with or without notice) and related employment issues, camps should consult with their legal counsel in crafting these documents so as to appropriately preserve application of the doctrine, consistent with state law.  See our previous Campline article discussing the potential impact of the employment-at-will doctrine in the context of an employment contract or manual:  “Avoiding Staff Surprises” (Fall 2007).

6 See footnote 5.

*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.

Catherine Hansen-Stamp and Charles R. Gregg (C) 2015