Reasonable Supervision and the "Safe" Environment: What Are the Issues?

by Charles R. (Reb) Gregg and Catherine Hansen-Stamp

Message From the American Camp Association

Kids want action! Excitement! Cool activities! New stuff! Parents want safety.
They want kids to have fun, but they also expect you to deliver EVERYTHING in the camp brochure. Directors (and boards and owners) also want camp to be a safe experience.

Developmental psychologists and youth development specialists would tell us that risk and challenge are important developmental dimensions — important to the positive growth and development of youth.

How does a director balance this?
ACA invited two attorneys to comment on the issues raised in a director's effort to understand "in loco parentis." Should your camp provide "risk-related" activities? Should your brochure say that your camp provides a "safe experience"?

The purpose of this article is to generate dialog about the pull between safety and developmentally appropriate experiences. Of course, camps don't want to intentionally (or sloppily) offer unsafe experiences — nor do we want to imply that the courts hold us to a standard of care with such strict control that appropriate risk-taking cannot occur.

Where is the point of balance?

Introduction

Appropriate supervision of campers is one of the most important issues of camp management. Compare the relative value of a philosophy of supervision that enhances camper growth, with one which calls for the continuous monitoring of the child in an effort to "ensure the child's safety." Reasonable exposure to risks and the understanding and acceptance of personal responsibility, at appropriate levels, is a desirable part of a child's maturation, and the camp experience, and can actually assist in minimizing incidents and injuries. Issues exist because of marketing pressures to tout camp safety to parents and camp leaders and administrators' misplaced expectations about a camp's responsibilities to and for the child.

This article will discuss issues of camp supervision of children, including what is the perceived and what is the legally imposed duty or standard of care that a camp owes to a child. We will explore the role of ACA standards in the area of supervision and the interplay between supervision and the inherent risks of recreation and adventure activities. Our focus will be on the value to the child of adventure, recreation, learning and assumption of responsibilities, and the unavoidable exposure to the risks that accompany those growth opportunities.

Our message is not intended to apply to the camp's legal and ethical obligations in the very serious issues of camper or counselor sexual abuse, drug experimentation, and mental and physical disorders and the camp's need to protect a child's physical and emotional well-being in those areas. Those important issues are not within the scope of this article.

A camp aligns its activities with its outcomes (e.g., personal or religious growth: developing physical, social, or emotional skills; fun; leadership and development skills; etc.); offers only those activities whose risks the camp can reasonably manage (ropes courses, urban expeditions, extended back country travel); and reasonably manages those risks.

Risk cannot be eliminated from the camp experience. To attempt to do so would change the experience so significantly that it would lose its appeal and purpose. The responsibility of the camp is to reasonably manage its risks, most of which are inherent; avoid serious injury; and reduce the frequency and the severity of minor injuries, some of which are inevitable.

Reasonable risk management is achieved through a blend of tasks, including the following:

  1. careful selection, training, and oversight of staff;
  2. appropriate and well-maintained equipment;
  3. an emergency response plan;
  4. familiarity with the environment in which the activities will take place;
  5. familiarity with the special needs of the campers;
  6. documentation that will a) inform the camp regarding the campers' physical and emotional health and skills, and b) record and provide the opportunity for analysis of events that might signal a dangerous person, place, or activity;
  7. administrative support, including good food, morale, and fair staff salaries;
  8. an exchange of information between the camp and the camper and the family, which alerts each to information about the other in order to reduce surprises which might cause some disappointment or loss; and
  9. continued monitoring and testing of policies and procedures.

As important as any of these, and more important than many, is the issue of camper supervision during regularly scheduled activities and otherwise.

Perceived Duty of Care

Contrary to the belief of even some very sophisticated camp managers, the responsibility of the camp is not to provide a "safe" experience or, as sometimes suggested, a "safe environment" in which the campers may grow, learn, and have fun. This climate or "culture of safety" in the camp industry — the notion that camps should "make it safe" for kids (and marketing pressure to make that promise) — is pervasive. Camps should recognize more frankly the value of risk and children's acceptance of reasonable levels of personal responsibility. "Growing," "learning," and "having fun" are all experiences in which existing levels of judgment, skill, and abilities are tested. Any one, and all of these expose campers to risks. Growing, learning, and having fun are not "safe." "Safe" means, literally, "without risking harm." The term is easily misinterpreted and should not be used casually. Offering to maintain a "safe" environment in which a child can develop, is offering a contradiction. Positive development demands appropriate challenge and risk. Risk is not safety. Furthermore, a promise or announced intent to ensure safety (either orally or in writing) — an impossible task — has important legal ramifications.

Under supervision, a camper is shown how to do something. The camper tries it. The potential for some error in the "trying" is always present. Someone may be hurt (or only disappointed or embarrassed) by the error. But the child has learned, and there has been growth, even in his or her temporary failure.

Providing opportunities for children to accept and embrace personal responsibility goes hand in hand with the acceptance of risks. Children respond well to being given responsibility for their own well-being and that of the group. They feel empowered when they are entrusted with responsibility. The camp, in turn, benefits from the increased awareness, understanding, growth, and self-reliance — characteristics that can actually reduce the risk of injury or incidents.

Camps, schools, families, religious institutions, the workplace, and the military all produce life transforming experiences. None are more significant in this aspect than a camp experience. So the reins (if we may use that analogy) must be held somewhat loosely by management and staff, allowing wrong turns and missteps, but also allowing correction. This is supervision. It is not a guarantee of safety, nor should it be.

Legal (the "Real") Duty of Care

The law recognizes the value of experimentation and adventure in the context of instruction and co-participation in active sports and recreation. The law in many jurisdictions, in fact, forgives simple carelessness on the part of instructors and co-participants, acknowledging the difficulty of drawing a line between carelessness and the natural and predictable mistakes that accompany work and play and learning new skills. In these jurisdictions, simple carelessness is considered an inherent risk of the activity. To punish simple carelessness, many courts hold, would "chill" the activity, and the expectation and creativity that feeds education and growth.

Generally, a counselor or instructor has a duty to exercise what the law describes as "reasonable care" when dealing with (supervising) children. That duty is to exercise the care that a reasonable person (in our context, a trained instructor or counselor) would exercise in the same or similar circumstances. Obviously, responsible hiring practices, adequate training of staff in the area of supervision, and adherence to applicable ACA standards are all important in efforts to fulfill this duty.

Most jurisdictions adhere to the common law rule that this duty does not include protecting a child from the inherent risks of recreation or adventure activities. The classic rule is that in agreeing to participate, the participant (minor or adult) assumes the inherent risks of the activity, whether those risks are known or unknown (a "primary assumption of risk" doctrine). The provider has no duty to protect the participant from these risks and no liability for injuries resulting from these risks. The nature of the activities that qualify for this inherent risk "no duty" rule vary from jurisdiction to jurisdiction and is sometimes defined by state statute.

Many courts have held that children — even young children — assume the inherent risks of a recreational activity.1 Generally, it is not required that the child understands and appreciates the risks before being held to assume them, but the courts of a few states require such awareness.2

Courts might also consider a child's "secondary" assumption of risk. Even if a child (through his or her parent) is able to establish a camp's negligence in a lawsuit, the camp may claim that the child assumed the risks and can be held responsible for all or part of the loss (under a state's "comparative fault" laws). Under this doctrine, the camp (the defendant in the suit) must commonly prove that the child voluntarily agreed to participate with knowledge and appreciation of the risk that caused the injury.

As the American Camp Association (ACA) standards provide, it is a good practice to inform and warn children and their parents about the risks. This knowledge and information can assist the parent and child in a fuller understanding of the nature of the activities the child will be engaging in and the associated risks — increasing awareness and "buy-in" and potentially minimizing incidents or resulting claims. In addition, this "information exchange" can assist the camp in the defense of any future claims, as discussed above.

The concept of "in loco parentis" is an often overused and misunderstood term among those who instruct, lead, and supervise children. In loco parentis or literally "in the place of the parent" is a legal doctrine that, historically, charged individuals caring for minors (including schools and camps) with the same rights, duties, and obligations possessed by the child's parents — most commonly in the area of discipline or conduct. Historically, the doctrine was extended to provide these individuals/entities with protective immunities similar to those provided to parents; for example, the ability to discipline and act without fear of liability. In other words, the doctrine was used as a "shield" and not a "sword," providing caregivers with protections and flexibility in the areas of discipline and conduct, similar to that allowed of the parent.3 Some jurisdictions have interpreted this doctrine to mean that a counselor or leader working with children may be held to a higher standard or degree of care, and/or that the in loco parentis principal be a basis for establishing a duty of care.4 Even in these cases, courts recognize that a counselor or leader is not required to be an ensurer of the child's safety. Further, the in loco parentis concept should not impact the appropriate application of the inherent risk doctrine to children's participation in recreational activities.

In any event, it should be noted, parents routinely expose their children to risks to better prepare them for the challenges of an active life ahead. If a camp were charged with the obligation to act in loco parentis, it might argue that controlled exposure to risks is a natural extension of thoughtful parenting.

An instructor or other leader's duty of care can be changed, increased, eliminated, or affected by a variety of factors. Did the camp follow its internal standards? Did the camp adhere to industry practices — importantly, did the camp follow applicable ACA standards — in the particular situation? Did the camp follow the law and comply with applicable statutes? Did the camp openly ignore a recognized problem at its facility? These issues and others can affect the duty determination.

ACA Standards

How do the ACA standards address the issue of supervision and safety? Generally, the standards do not expect camps to ensure safety. By way of example, the standards (including those currently under revision and being circulated for comment), ask camps to consider "appropriate" levels of staff training, appropriate staff/student ratios, and hiring practices that have been reviewed by legal counsel and comply with the law (HR 3, 4, 7 and 9).

HR 11, Precamp Staff Training (currently under revision), describes components of staff training, including addressing the "[d]evelopmental needs of campers to be served . . . ." Item 4 under this HR standard calls for "[b]ehavior management and camper supervision techniques to create a physically and emotionally safe environment." Pertinent to a suggestion that the standard mandates the creation of a "safe" environment (which is not achievable) is the Interpretation of the standard, which states: "[t]he intent of this standard is to assure that staff are given comprehensive training and resources that focus on intentionally creating a positive camp experience." This is a worthy goal and one which does not tie the camp to a philosophy of supervision that discourages camper development and growth.

HR 15 (currently under revision), which addresses staff/camper interactions, recognizes the need to "[f]ocus attention primarily on campers' needs and interests rather than on other staff and themselves." The Interpretation of the standard refers to "carrying out camp activities in different ways depending on the developmental level of the campers." This standard can encourage staff members' recognition of the supervisory role "balance," providing appropriate supervision, while allowing for camper growth and encouraging campers' acceptance of appropriate levels of personal responsibility in daily camp interactions and activities.

The Code of Ethics set out in the 1998 edition of the Accreditation Standards for Camp Programs and Services (also being revised) states that the ACA, to accomplish its mission, "educates camp personnel to create positive growth experiences for children, teens, and adults using the outdoors responsibly as a program environment." In the same document, accredited members are asked to subscribe to certain "exemplary ethical practices for camp owners, directors, and executives," which include the following (at Number 8): "I shall endeavor to provide an environment conducive to promoting and protecting the physical and emotional well-being of the campers and staff." This, too, is a worthy and realistic aspiration. It does not promise "safety," but reflects a commitment to both promoting and protecting physical and emotional well-being, which certainly contemplates the growth, development, and entertainment of the camper and their attendant risks.

Practical Application — A Case Example

Recent legal cases offer encouragement that courts recognize the critical supervisory "balance" for those working with minors in a camp setting — reasonable supervision that allows room for children's exposure to risks and acceptance of personal responsibility — vital to a child's growth and development.

Although its ultimate holding is not particularly instructive for our purposes here, certain observations of the court in the New York case of Lesser v. Camp Wildwood (2003)5 are enlightening. In Wildwood, a twelve-year-old boy (Jory Lesser) was seriously injured by a falling tree branch during a camp waterfront evacuation following a sudden storm. Jory's parents filed a lawsuit against Camp Wildwood, claiming the camp was, among other things, negligent in supervising Jory as he was evacuated from the lakefront. They claimed that this negligent failure to supervise the evacuation (Jory was "confused as to where to go for shelter and lost in the chaos of the poor evacuation") was the cause of Jory's injuries. In Jory's words, after a shouted order to "get to the bunks," "[it] was like 800 chickens running around with their heads cut off."

Among other things, the plaintiffs sought to refute what they described as "repeated" claims of the camp that they had complied with ACA standards and that ACA camps were "safer." One of the issues before the court, in this pre-trial proceeding, was whether plaintiffs' expert could testify regarding the camp's compliance with ACA standards, and, regarding whether the camp had provided "adequate supervision" to Jory Lesser, the night of the evacuation. The court ruled that a plaintiff's expert could testify concerning the camp's compliance with ACA standards, but not on the issue of whether the camp provided adequate supervision. The court reasoned that expert testimony was not necessary to assist the jury in evaluating the negligent supervision claim, and that the jury could evaluate this claim based upon the evidence and testimony before them.

The court ultimately denied the camp's efforts to have the negligent supervision claim dismissed before trial, finding there were questions of fact on the issues that should go to the jury: " . . . whether defendants provided adequate supervision and whether any inadequate supervision was the proximate cause of plaintiff's injuries." The court noted, for example, that the evidence (or lack of it) reflected that the camp did not follow its own internal protocols in conducting the evacuation, nor did it rehearse its safety plan, as required in the ACA Standards Manual.

In its ruling, the court states that under New York law, camps, schools, and others having the "custody and care" of a child must exercise the degree of care of a "reasonably prudent parent" in similar circumstances; what the court terms the "highest degree of care." (citing other New York cases) The court follows this statement with an acknowledgment of the important limits on the duty to supervise minors in a camp or similar setting, as noted in other recent New York case law6:

". . . camps, like schools, are not insurers of safety . . . for they cannot reasonably be expected to continuously supervise and control all movements and activities of students." "[C]onstant supervision is neither feasible nor desirable because one of the benefits of such an institution (the camp) is to inculcate self-reliance in the campers which an overly protective supervision would destroy." The court went on to discuss supervision in the context of recreational events and activities: "[o]rganizers of recreational events owe a duty to exercise only reasonable care to protect participants ‘from injuries arising out of unassumed, concealed or unreasonably increased risks.'"

It appears the court is recognizing, as we suggested above, that a camp's duty (akin to) "in loco parentis" does not require constant or "overly protective" supervision and must allow for the development of self-reliance and, presumably, other characteristics of physical and emotional growth. Putting this in the context of the New York law, cited by the court: even a camp, charged with a duty to act as a reasonably prudent parent exercising the highest degree of care, must exercise appropriate supervision that allows the child to grow in important ways.

Conclusion

In exchanging information with families, the camp should make clear its commitment to the children and a philosophy of supervision that allows for experimentation, assumption of appropriate responsibilities, exposure to risks, mistakes, and the possibility of some hurt, both emotional and physical. This is an adventuresome growth and developmental experience and neither can be achieved without the chance of some loss. Is this a legitimate mission for the camp? We think it is (although we are certainly not child development specialists). Is it understood by the parents? If it isn't understood, it should be. The obligation to inform the campers and families of the realities of the experience should outweigh any concern that the information may not be received with enthusiasm.

Understand the value of risks and personal responsibility for campers, with reasonable and appropriate levels of supervision. This approach is empowering for campers, and can actually assist the camp in minimizing the risk of injury or incident. Provide accurate information to campers and parents on activity risks — avoiding marketing clips or statements that ensure or imply absolute safety. Importantly, consider the application of — and your camp's compliance with — the ACA standards.

Camp is a defining experience in the life of a young man or woman. A significant part of camp management is a philosophy of supervision that identifies the value of experimentation, risks, and a camper's acceptance of personal responsibility and controls the severity of unfavorable consequences. This is not a philosophy of "safety." It is one of growth and promise for the future and is vital to fulfilling the expectations of the camp and its families.

*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.

 

(Endnotes)
1 See, e.g. Bennett v. Hidden Valley Gold and Ski, Inc., 318 F. 3d 868 (8th Cir. 2003); West et al., v. Sundown Little League of Stockton, 96 Cal. App. 4th 351 (2002).
2 See, e.g., DeLacy, et al., v. Catamount Development Corp, 2002 W.L. 31992955 (N.Y.A.D. 2003).
3 Van der Smissen, Betty, Legal Liability and Risk Management for Public & Private Entities, 2.2112, p. 7 (1990); Dobbs, Daniel, The Law of Torts, section 326, (2001); Lake, Peter, The Rise of Duty and the Fall of In Loco Parentis and Other Protective Tort Doctrines in Higher Education Law, 64 Mo. L. Rev. 1 (1999); see also Trinkaus v. Mohawk Ski Area et al., 2003 Conn. Super. Lexis 165 (2003).
4 See, e.g., Lesser v. Camp Wildwood, 282 F. Supp. 2d 139 (N.Y. 2003); Juarez v. Boy Scouts of America, et al., 81 Cal. App. 4th 377 (Cal. 2000); Beul v. ASSE International, Inc., et al., 233 F. 3d 441 (7th Cir. 2001); Molock v. Dorchester County Family YMCA, 779 A. 2d 963 (Md. App. 2001).
5 282 F. Supp. 2d 139 (D.C. S.D. N.Y. 2003).
6 See, e.g., Fintze v. New Jersey YMHA-YWHA, 2001 N.Y. Lexis 3791 (N.Y. 2001) and other cases cited by the court; see also, Anthony v. Village of Garden City, et al. (N.Y. 2003 jury verdict report).

Originally published in the 2005 Fall issue of The CampLine.
 

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