Protection of the health, safety, and well-being of children who participate in recreational activities at a summer camp, summer school program, or community and private recreation centers should be the standard operating procedure of all those who provide these services. The standard of care owed to children who participate in organized or sponsored recreational activities such as sports, dance, swimming, rock climbing and variety of other activities at a camp or other agency must be consistent with professional standards in the field. Ingraining standardized practices and responsible planning and supervision into the work habits of all employees will help to protect the employees and the agency from activity injury liability and costly litigation.
Many of the cases for which Education Management Consulting, LLC, provides consultation and expert witness services involve claims of negligence initiated by parents against a camp, school, or other activity center for injuries sustained while participating in sports or other physical activities. Criteria associated with the appropriate and reasonable care of children involved in recreational activities are generally of a higher degree than what would ordinarily be expected of the average person who cares for children outside of this context.
Reducing Risks of Activity Injury Liability
In a 2013 article, "School and Summer Camp Liability," I wrote that "meticulous planning will keep children safer and could help a camp or other agency avoid liability if they are sued for the injury of a child." Camp administrators should instruct their staff to consider all the possible dangers that might cause injury to a child, then make a list of those dangers and how each can be avoided. The article concluded with a list of 10 elements elements that Education Management Consulting, LLC, considers when reviewing a case, including a camp's risk management procedures. Having standards, certifications, policies, training, and adequate supervision in place is extremely important for minimizing risk for summer camps or other agencies that offer recreational activities that are generally accepted to be inherently more dangerous, such as boating, rock climbing, horseback riding, swimming, or water skiing.
At a minimum, recreational activity providers should [MD1] adhere to, and train staff in, the requirements of the authority that provides a license to operate and of the standards of the appropriate oversight organization. As an example of an oversight agency, the American Camping Association (ACA) publishes standards for ACA accreditation. These standards also serve to educate camp directors and personnel about practices and procedures that are generally followed within the camp industry. Although camps can choose to not be accredited, the ACA standards reflect the standard of professional care to which camps, certified or not, should adhere.
Individuals hired by camps to perform specialized functions, such as lifeguards or water safety instructors, powerboat operators, and horseback riding instructors, may also need to be certified or licensed. Certification or licensure implies that the person has received the requisite training. And yet, there is always room for the camp to provide additional training specific to the population being served or any unique activities. For instance, the Americans with Disabilities Act prohibits camps from refusing admission to children with disabilities. This presents challenges that can be met with adequate training. Where there are children with disabilities, specialized training that extends beyond certification instruction is necessary so that staff know how to handle special circumstances, such as a child with a behavioral problem.
When a camp makes safety training its first priority, there is less chance that an accident will occur, though if a child does become injured, there is less chance the sponsor will be held liable. The methodical and systematized practice of safety education until all employees instinctively perform their functions with safety uppermost in mind will help to keep children safe.
Reasonably appropriate action under specific circumstances - grounded in the professional standard of care and the camp or other agency's own policies - will protect the camp or agency from liability if a child is injured. The camp or agency must have policies that specify standards for staff hiring and supervision and for site- and equipment-safety monitoring. An organization's policies should be reflective of standards in the field of child supervision, as well as those gained from laws, regulations, and standards of the applicable oversight agency, such as the ACA. If a claim is filed against the camp, these policies will be reviewed and a determination made as to whether the camp or its staff met standards in the field and its own standards. If a camp lacks policies that adequately reflect standards of an oversight agency - or if it has good policies but does not follow them - an expert witness may determine these deficiencies to be the proximate cause of a child's death or injury.
Specialized Training and Supervision
As mentioned above, the ACA is one of the oversight agencies that provides accreditation to operate a camp. If the camp provides a watersport program with swimming, according to the ACA, it must have an appropriately certified lifeguard for each swimming activity. Further, camps must have written documentation that every lifeguard has demonstrated skill in rescue-and-emergency procedures specific to the activity. If the camp administration doesn't check the lifeguard's certification to ensure that it's up to date and a child drowns while that person was charged with the child's safety, the camp may be held liable for the death because of negligent hiring.
Even if the lifeguard has appropriate, up-to-date certification, it is the responsibility of the camp to adequately supervise the lifeguard. Certification doesn't guarantee that the lifeguard won't be easily distracted from closely watching the children in the pool. A person responsible for supervising the lifeguard should observe the person on a regular schedule, informally and formally, to be reasonably sure that he or she is adequately performing the job duties that will protect children. If a child drowns and a parent sues the camp, witnesses might testify that the lifeguard on duty at the time regularly left the lifeguard station, engaged in lengthy conversations with people standing next to him, or generally did not pay close attention to the children in the pool. If this is the case, it is likely the camp will be found liable for negligent supervision of the lifeguard. On the other hand, if the camp administration is able to show that it conducted regular observations of that person and that at no time did the lifeguard demonstrate inattention to his duties, the camp may be able to show it was not negligent in supervising the lifeguard. In this case, the claim of negligent supervision will likely fail.
Where a camp uses motorized boats for any activity, the boat drivers must be trained on state laws, rules of the water, safe loading and unloading of passengers, mechanical failure, and refueling. On-the-water training also is required, according to the National Association of State Boating Law Administrators (NASBLA). Anyone who operates a power boat at a camp must have the appropriate state-required license. The license assures that its holder has been trained. If an accident occurs involving a motorized boat that causes injury to a camper, and the driver of the boat does not meet state requirements of having a license and appropriate training, this will become one of the elements of negligence that might entitle a plaintiff to damages.
In a case reviewed by Education Management Consulting, LLC, a camper was seriously injured when he was pushed from an inflatable pontoon boat being towed behind a motorized boat. Upon review of the deposition testimony, police reports, and other documents, it was learned that the driver of the powerboat was not state-licensed and, therefore, should not have been operating the boat. The camp did not adequately train the driver about camper safety. Additionally, the inflatable boat was carrying too many passengers, according to the manufacturer's warning, and there was no adult on the pontoon boat to supervise the campers. Testimony of the camp staff revealed that they were not trained in boat safety and they did not know how to supervise campers who engaged in horseplay on the inflatable boat. Together, these elements led to the expert opinion that the camp breached the standard of care.
Components of Child Personal Injury Cases
Those responsible for the safety of children in every setting - school extra curricular activities, daycare programs, summer camps and other recreational after school activities - have a responsibility to prevent children from being exposed to unreasonable risk. Thus, teachers, coaches, and camp counselors who are charged with instructing shop, physical, or other high-risk activities must provide the children with the best possible instruction, along with appropriate and safe supplies, materials, and equipment suitable to the age of the child while following manufacturer warnings guidelines and precautions. Some of the components we address when reviewing child-injury cases is whether the child received appropriate and reasonable instruction; whether the equipment was inspected, safe, and appropriate for the age of the child; and whether the level of risk associated with the activity given the experience of the children was acceptable.
An important element to be considered is whether an injury or death could have occurred or been prevented if the person in charge of the child had performed supervisory duties properly. In other words, did the person act appropriate and reasonably under the particular circumstances? If improper conduct or failure to appropriately supervise can be shown, then proximate cause is usually associated. If the person in charge of a group of young campers was told that the children can never be left unsupervised, and that person deliberately leaves the group alone for any period of time, an injury can occur. This injury may be directly related to the failure of the staff person to adhere to the standard set by the camp.
For example, in a case for which Education Management Consulting, LLC, was engaged, a public school was operating a summer camp and the counselors were instructed that no child was to enter the school building unattended. The claim in this lawsuit was that a child entered the school bathroom unsupervised and was sexually assaulted by an older student. Upon review of the testimony, the camp's policy, and the factors that led to the children being in the building, it was my opinion that the camp breached its own policy with regard to students entering the building and that the counselor failed to adequately supervise the children in his charge. This lack of appropriate supervision though implementation of established policy was the proximate cause of injury to the camper.
Courts have consistently held that camp counselors and persons supervising children in schools or other agencies have several responsibilities for those who are placed in their care. The first responsibility is to provide adequate supervision. The second is to provide appropriate instruction, and the third concerns proper maintenance of buildings, grounds, and equipment so that accidents can be avoided. These are parts of the degree of care necessary to avert unnecessary risk. To avoid injury to children, those in charge at a camp must know the safety rules and practice them diligently - throughout the day, day after day - to protect children from injury and the camp from costly litigation.