A New Child in the Wild?

Catherine Hansen-Stamp and Charles R. Gregg
November 2018

Every several years we reexamine the legal duty of care owed by a camp to its families. We do this for a variety of reasons. New laws are passed, and new court decisions are issued. New activities, gear, and amusements pose new challenges. Campers and their families, often reacting to current events, change their attitudes toward adventure and risk tolerance and their expectations of supervision and intervention.

This year's revisit has been stimulated in part by our rereading of a 2013 article by Dr. Tim Elmore, titled "Three Huge Mistakes We Make Leading Kids. . . and How to Correct Them."1 Dr. Elmore describes today's young people (our campers) as products of home and school environments too often designed to minimize risk and maximize adult control and early intervention. Unfortunately, the sanitizing of these young lives can delay their development into confident, resourceful adults, including their ability to identify and resolve problems, indoors and out.

The mistakes described by Dr. Elmore's — the new three Rs in dealing with children — are these: we risk too little, we rescue too soon, and we rave too much.

If Dr. Elmore is at least partially correct in his assessment of today's young people and their parents, what are the practical and legal implications of his new three Rs for a camp's overall risk management and consideration of its legal duty of care?

Camps may react or cater to camp parents' three Rs (risk, rescue, rave) behavior (or embrace it regardless of parental influence!) in different ways. In their desire to increase enrollment, camps may use their website, Facebook, YouTube, or other marketing content to assure the safety and comfort of the camper, declare that everything is easy and that the camp hires only the best leaders in the industry. At the same time, the camp still promises the adventure of a lifetime.

In an effort to lessen the risks, camps may modify activities and ramp up leaders' responsibilities. Campers may be relieved of responsibility for their behavior, and not expected to take an active role in risk management for themselves and the group. As a result (or at least, camps may hope), parents will feel assured and more comfortable and choose this camp for their camper. Campers may come in dreaming of a great adventure, but believing they will be catered to, will not need to pay attention, and will be coddled2 through the camp experience.

Camp parents may also be led to believe that the camp will keep their child safe and provide a grand vacation at the same time. The camper may feel disengaged and unchallenged, come in with unrealistic expectations of the experience, or simply get bored.

Not surprisingly, this approach can backfire on the camp. The camp may be compromising its mission, some part of which often includes the camp's intent to offer campers a chance to take and assist in managing risks, experience independence, grow and learn, accept failure, feel good about challenge and achievement, and generally just mature in life. If the child ends up getting hurt (getting bullied, breaking a leg, spraining a wrist, or worse), the parent is now inclined to be surprised and angry, considering expectations their child will experience a safe and exciting summer. Even if the child comes home unscathed, the child may complain that the camp experience wasn't exciting or fun. The parents may feel that the camp was untruthful in its promises and ask for their money back. In more serious cases, the parents may sue the camp or simply criticize the camp online or otherwise, damaging the camp's reputation — one of its most precious resources.

Before addressing a better way to approach the three Rs of today, let's revisit the law in this area.

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.3

Importantly, a variety of factors can reduce or eliminate the camp's duty of care, some of which are discussed below.

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 sports and recreation activities. 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 to learn new skills.4 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.5 Know the law in your jurisdiction, and have your 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 and risks, and contains an acknowledgment and assumption of risks and other important provisions.6 Again, understand the law in your jurisdiction, and work with your legal counsel to develop an agreement that is consistent with applicable law, and is one that the camp is comfortable with. 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.7

Campers, even minors, can be held legally responsible for their own negligence or other misconduct, and in fact, for the knowing assumption of other (non-inherent) risks. In any claim brought against the camp, the camper's percentage of responsibility (depending upon a state's particular law) can decrease or eliminate the camp's ultimate liability.

Nonetheless, a camp's duty of care must be considered in all aspects of camp life, and is part of the camp's goal in running a quality camp including, as we see reflected in published legal cases, consideration of:

  • The information exchange — that is, that critical information flowing between the camp and its camper families. If a camp fails to deliver accurate and appropriate information to its camper families, or obtains inaccurate or inadequate information from its camper families, it can increase the risk of injury and exposure to claims. Examples of healthy information exchange include the camp imparting accurate information to families regarding camp activities, inherent and other risks, and the camper and parents' responsibilities. Conversely, it involves the camp family providing the camp with requested information regarding a camper's heath condition or other important considerations.
  • Maintenance of camp premises, buildings, facilities, and equipment.
  • Training, supervision, and instruction of campers and staff.
  • The failure of a camp to meet its legal duty of care in these and other areas may expose it to, among other potential claims, a claim of negligence and, ultimately, potential liability for losses proven to result from its misconduct.

Returning to Dr. Elmore: How do we know if we are exposing our campers to too little — or even too much — risk? How do we know if and when to intervene in a situation that may cause harm? Good camps will draw on years of experience (and experimentation) in answering these questions, among other considerations, balancing the risk of injury or other loss against a thoughtful approach to risk and risk management and the valuable rewards of personal achievement.

Camps should consider several factors in identifying an appropriate level of risk:

Camps must understand and impart clearly to camper families that inherent risks, integral to the camp environment and associated activities, exist and cannot be eliminated. Be clear that a camp can identify and endeavor to manage these risks but cannot eliminate them. Importantly, camper families should understand they assume and accept these and other risks of the camp experience. This can be included in a balanced statement on the camp's website, which also provides information on the value and uniqueness of the camp, supported by objective facts (rather than unrealistic marketing excesses).

Activities must serve the mission of the camp. If the activity does not "move the ball down the field," don't do it. Your mission should guide the activities the camp consciously chooses to incorporate into the camp experience.

Activities aligned with mission are more likely to be thoughtfully and reasonably considered and well delivered.

Don't be tempted by the newest activity, waterfront extravaganza, or other gear being used "down the river" to keep up with the camp next door. You will likely have enough on your plate already, and don't need additional, perhaps unfamiliar, challenges. Camp activities should be those that can be reasonably managed by camp staff or by thoughtfully selected third-party contractors.8 If you don't believe your camp can reasonably manage the risks of an activity, don't offer it.

[Note: A number of years ago we learned of a camp that allowed a (well meaning, certainly) parent of a camper to take campers on rides in his small airplane. The father was using a local landing strip that was not regularly maintained. Not all parents were aware of this extracurricular activity. No serious incidents were reported, but the exposure was considerable. And for what?]

The camp should exercise similar discretion in its selection of campers. If a child cannot, without reasonable modifications, successfully confront the risks of camp life, she or he should not be there. Consider and implement a thoughtful approach to assessing campers' ability to participate via requests for health information, development of Essential Eligibility Criteria, discussion with the campers' medical providers, assistance from the camp's consulting medical professionals and consideration of the requirements of the Americans with Disabilities Act (ADA), child licensing laws, or other applicable laws. The camp shares in the determination of a camper's suitability, and may be judged responsible for failure to comply with applicable laws or carelessness in the camp's suitability determination.9

Inform parents and campers regarding campers' personal responsibilities. Campers are and should be team players in the risk management equation. Whether on or off premises, the camp should expect and teach this (age-appropriate) engagement. Such an approach can be empowering and transformational for the camper, and act as a risk management tool. Comply with all applicable laws and, whether or not your camp is accredited, pay attention to industry practices (including the American Camp Association accreditation standards). Pay attention to what is out there, and, if you are an accredited camp, what you may be required (under the standards) to deliver. This will likely increase the quality of your programming and assist you in the event of litigation.

Teach skills sequentially, allowing campers to learn new skills at a logical "ramping up" rate consistent with industry practices (or applicable law). When campers are learning new skills, discuss the risks and how to manage or address those risks. Engage the camper.

Meet with your insurance professionals to confirm that camp activities (new or newly considered) will be covered under the camp's liability insurance policy.

If the camp utilizes a participant agreement that includes an agreement by camper families to release the camp from liability for negligence, the camp should be clear about it and seek legal counsel to assist in crafting the agreement consistent with applicable law, and containing other important provisions including, for example, a discussion of activities, inherent and other risks, and assumption of risks.

Conclusion

Adventure is at the heart of the camp experience. According to Helen Keller, "Life is an adventure or nothing at all" and John Bowlby, "A life well managed is a series of daring adventures from a solid base."

And, as already identified, the law favors vigorous participation in recreation and sporting activities. The law in many jurisdictions protects a service provider (including a camp) from the inherent risks of an activity — those risks that are such an integral part of the activity that, without them, the activity would lose its basic character and appeal. Importantly, fostering effective information exchange with campers and parents, including articulating camper and parent responsibilities and effective use of participant agreements, assists the camp in running a quality camp in line with its mission. The risk of legal liability should not be an excuse for denying campers full and enthusiastic participation in responsibly managed camp experiences — an experience that this new "child in the wild" desperately needs.

Camp risk management does not lie simply in avoiding the risk (Dr. Elmore's "risk too little" observation); it includes embracing the value of risk and knowing if and when to intervene in a potentially dangerous situation (Dr. Elmore's "rescue too early" observation). Early rescue also delays a camper's willingness, and ability, to "just take it and deal with it."

Dr. Elmore's "rave too much" admonition includes, in its legal implications, raving for little or no real achievement (and consequently, little growth). On the flip side, it also includes the prospect of misjudging a child's performance, and potentially encouraging the child, improperly assessed, to go beyond his or her competencies or abilities. As previously discussed, although the law in many jurisdictions allows room for a leader to push a child beyond his or her capabilities in learning new skills, there are limits, and this "pushing" should be done in a thoughtful and realistic manner.

If we agree with Dr. Elmore's charge that we leaders of children have an obligation to prepare them for a world that is not risk free, we owe it to our camp families to seriously consider the implications of the new three Rs in meeting our mission and in contemplating our risk management strategies and legal duty of care.

*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 by email at 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 by email at reclaw@hansenstampattorney.com; hansenstampattorney.com.

1 Dr. Tim Elmore, ©2013; President and Founder of Growing Leaders at GrowingLeaders.com
2 Akin to "carried on a soft platter," Happy Birthday to You! By Dr. Seuss, ©1959
3 "A Camp's Duty of Care — In Good Times and Bad," ©Catherine Hansen-Stamp and Charles R. Gregg, The CampLine, Winter 2009
4 See discussion in "The Law Says Yes to Adventure," ©Catherine Hansen-Stamp and Charles R. Gregg, The CampLine, Winter 2014; ACAcamps.org/resource-library/articles/law-says-yes-adventure
5 See, for example, the seminal case of Kahn v. East Side Union High School, et al., 2003 Cal. Lexis 6373 (CA Supreme Ct., 2003).
6 "Releases and Related Issues: Revisited," ©Charles R. Gregg and Catherine Hansen-Stamp, The CampLine, Winter 2012; ACAcamps.org/resource-library/articles/releases-related-issues-revisited
7 "Reasonable Supervision and the ‘Safe' Environment — What Are the Issues?" ©Charles R. Gregg and Catherine Hansen-Stamp, The CampLine, Fall 2005
8 "Camp Contracting with Service Providers — The Bigger Picture," ©Catherine Hansen-Stamp and Charles R. Gregg, The CampLine, Spring 2017; ACAcamps.org/resource-library/campline/camp-contracting-service-providers-bigger-picture
9 "The Americans with Disabilities Act. Revisited," ©Catherine Hansen-Stamp and Charles R. Gregg, The CampLine, Winter 2016; ACAcamps.org/resource-library/campline/americans-disabilities-act-revisited