AV Rated Martindale-Hubbell

State Bar of Texas

State Bar of Oklahoma

Papers Presented

(Are You Acting Responsibly Towards Your Campers?)

I. Overview

Most recreation and sports injury cases, including injuries at camp, arise in the area of negligence and/or premises liability. Generally speaking, no person, employee or sponsor is immune from a negligence lawsuit. When owners and employees understand and appreciate basic negligence law principles and incorporate that knowledge into responsible management practices, the number of injuries and resulting lawsuits can be minimized.

II. Negligence

Negligence can be defined as "failure to use ordinary care; that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances". "Ordinary care" can be defined as "that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances". Texas Pattern Jury Charge, 2.1. If a person is found to be negligent in connection with an accident involving personal injuries, the person may be liable for the resulting injuries and damages. Negligence is composed of four elements: (1) duty, (2) breach of duty, (3) proximate cause, and (4) actual damages. Clearly, a camp owes a duty to its campers to act reasonably and prudently to prevent the campers from injuries or harm arising out of a preventable accident or event.

III. Premises Liability

In premises liability cases, the terms "licensee", "invitee" and "trespasser" are terms with legal significance. The duties owed by a landowner, occupier, possessor or lessee depend upon the classification of the injured person. The duty owed to a trespasser is the least, and the duty owed to an invitee is the greatest.

a. Trespassers. A trespasser is someone entering land owned or occupied by another without permission, for his own purposes, and takes the premises as he finds them. The landowner or occupier owes the trespasser no duty to warn of dangerous conditions or to make the premises same. The duty owed to a trespasser is simply not to injure him wilfully, wantonly, or through gross negligence.

b. Licensees. A licensee is a non-trespasser entrant on a landowner’s or occupier’s premises with permission (express or implied) for the entrant’s own convenience, or on business for someone other than the owner. The owner or occupier must warn of hidden dangers actually known only by the owner or occupier, or the condition must be made reasonably safe. Actual knowledge embraces those things which a reasonably diligent inquiry and means of information at hand would have disclosed. The licensee is imputed with the knowledge of those conditions perceptible to him, or the existence of which can be inferred from facts within their present or past knowledge.

c. Invitees. An invitee is someone on the property of another, by invitation, and whose presence on the land is for the direct pecuniary benefit of the landowner or possessor. Thus, from a legal standpoint, a child who is enrolled in a youth camp is considered an invitee. The significance of this translates into a higher duty of care to this person. The owner or possessor of land has a duty to invitees to exercise ordinary care to maintain the premises in a reasonably safe condition or to warn such persons of any dangerous conditions that the owner or possessor knew about and which were not reasonably apparent to the invitee. The owner or occupier of land has a duty to inspect and discover latent defects and to make them safe or give adequate warnings. As can be seen, an owner or occupier has an affirmative duty to inspect the premises with regard to an invitee, whereas such a duty does not exist to either the trespasser or licensee.

d. Attractive Nuisances. An "attractive nuisance" is a term used by plaintiffs as a theory of liability in situations dealing with children of tender years where a dangerous premises condition is alleged, in effect, to have lured a child onto the premises. In these situations, the plaintiff must prove the following:

(a) The possessor or occupant knew or should have known that small children would likely frequent the place where the dangerous condition was located;

(b) The owner or occupant knew or should have known that the condition involved an unreasonable risk of death or serious bodily harm to children;

(c) The child, because of his youth, did not realize the risk involved; and

(d) The utility, if any, to the owner or occupant, of maintaining the condition, was slight as compared to the probability of injury.

It should be noted that the age of the injured person is not controlling. The fact finder should look to the injured party’s mental capacity. Restatement (Second) of Torts § 339.

IV. Case Law Example

In one case, a jury awarded $250,000 to a nine-year-old camper for damages he sustained during a kind of "rough house" run-hide-and-chase game. From the evidence presented, the jury concluded that the boy sustained a severe injury to his elbow when he fell during the course of the game. The jury found that both campers and counselors participated in the game, with the counselors participating as "catchers". This particular game was played on a sloping, grassy area adjacent to a swimming pool, and the boy slipped on a section of grass that was damp from waters spilling over from the pool and from the counselors having previously hosed the campers down when they emerged from the pool. Significantly, it was undisputed that there was a dry, flat area in close proximity where the game could have been held. Although the camp appealed, the appeals court upheld the jury award. The appeals court agreed that the game involved a foreseeable risk of unjustifiable danger. It also held that there was a basis for the jury finding that the camp counselors were negligent in that they participated as a team of "catchers" who actively chased campers until the campers were caught and brought to home base in this particular slippery area. Greaves v. Bronx YMCA, 87 A.D. 2d 394, 452 N.Y.S.2d 27 (N.Y. 1982).

V. Respondeat Superior

When a camp counselor or other camp employee such as a coach, infirmary nurse, or sports supervisor is determined to be negligent for some action committed within the scope of camp duties, the camp operator and/or its owners may also be held liable under the theory of respondeat superior. In other words, liability may be imposed on the employer of a negligent employee. In general, for liability to arise on this basis, the act of the employee must fall within the scope of his general authority and must be in furtherance of the camp’s business and for the accomplishment of the objective for which he was hired. The doctrine of respondeat superior is based upon the premises that the employer has the right to control the details of their employees’ work. This is true, even if the camp does not actually exercise any control over the individual’s actions. For example, in the Greaves case cited earlier, the counselors were found to have been acting in the course and scope of their employment and in furtherance of the employer’s business, which was to provide recreational camping activities.

VI. Negligent Hiring

a. A master may be guilty of negligence in hiring an incompetent servant where the master has made inadequate inquiry as to the competence or qualifications of the employee. This type of claim is based upon the concept that the employer knew or should have known (with an adequate inquiry) that the employee was unfit for the job, and therefore should have foreseen that the employee would cause harm to another person. Sexual abuse and other aspects of child abuse should be foremost in the minds of camps hiring counselors and other people who will predictably come in close proximity to your campers. This duty extends through the entire hierarchy of camp employees -- from the camp director to the counselors, nurse, and food service personnel.

b. Case Law Example. A recent Texas case dealing with this issue involved an individual who had been assigned community service after a DWI conviction. To fulfill this obligation, the individual interviewed as a volunteer with the Boys Club, which did not investigate his background before accepting his services. This Boys Club volunteer molested several of the underage members on various overnight camping trips. When suit was brought on behalf of the minors, the Boys Club argued that it owed no duty to the plaintiffs because the volunteer was not an employee, since he received no wages. The court held that such classification was not dependent on the payment of wages. The court found that since the Boys Club had the right to control the volunteer, had an interest in his work, accepted the benefit of his services, and had the right to replace him, the volunteer would be treated as an employee. Further, because the defendant failed to make any inquiry into the volunteer’s background, it breached its duty owed to the plaintiffs to exercise reasonable care in the selection of its volunteers. Doe v. Boys Club of Greater Dallas, 868 S.W.2d 942 (Tex. App. -- Amarillo 1994), aff’d 907 S.W.2d 472 (Tex. 1995).

The Doe case is important for camp owners, since many camps often utilize non-paid senior campers, or mid-teen to late teenaged students in a "Counselor In Training" or "Leadership Trainee" position. These individuals may actually pay the camp to attend in exchange for informal and/or formal "leadership training". With the holding in the Doe case, it is most probable that such trainees would be considered employees of the camp.

VII. Negligent Training or Supervision

Negligent training or supervision allegations arise when an employee injures another person because the employer improperly trained, supervised or failed to oversee the employee. Camp owners need to take an active role in supervising their counselors in all activities and conditions that their campers are exposed to.

VIII.Negligent Retention

Negligent retention occurs when an employer retains an employee knowing that the employee is unfit for duty or poses a threat to others. To prevail on a negligent retention claim, the plaintiff must prove that the alleged damages were the direct result of an employer’s negligence in retaining the employee. It is important for a camp owner to properly discipline an employee for a breach of policies and/orprocedures, including termination. Drug use, alcohol abuse, or violent tempers easily come to mind in these situations. However, an employee who routinely does not enforce the camp’s policies and/or procedures and has the attitude of "let it slide", could be exposing a camper to foreseeable tragic consequences. The camp owner should be quick to respond to any inappropriate employee conduct, whether it be acts of omission or commission. The same principles would apply to a camper who is subjecting his mates to danger. The camp has the duty and responsibility to deal responsibly with this type of camper to prevent the foreseeable risk of harm to the other campers.

IX. Defenses

A. Comparative Fault

In a negligence case in Texas, if the comparative fault of the plaintiff is 51 percent or more, there is no recovery, even if the defendant is found to have been negligent. If the plaintiff is determined to have been 50 percent or less at fault in causing the accident and the resulting injuries, the damages are reduced by the proportion of fault that has been determined to be attributable to the plaintiff.

B. Act of God

There is no negligence if an accident is determined to have been caused by an act of God. An accident is the result of an act of God when it is due directly and exclusively to natural causes without human intervention. Scott v. Atchison, Topeka & Santa Fe Ry Co., 572 S.W.2d 273 (Tex. 1978). However, in Macedonia Baptist Church v. Gibson, 832 S.W.2d 557, 560 (Tex. App. -- Texarkana 1992, no writ), it was held that the church was not protected by the Act- of-God doctrine because church members knew that lightening had struck the church’s steeple in the past and that the steeple posed a danger to the church and its occupants.

C. Unavoidable Accident

An unavoidable accident is defined as an event not proximately caused by the negligence of any party to it. It is an event that ordinary care and diligence could not have prevented, or which could not have been foreseen or prevented by the exercise of reasonable precautions. Otis Elevator Co. v. Shows, 822 S.W.2d 59, 63 (Tex. App. -- Houston [1st Dist.] 1991, writ denied).

D. New and Independent Cause

This defense requires proof of a superseding cause or of an event that interrupted the natural sequence of events. Factors used to determine whether an intervening force will be considered a superseding cause of harm are: (1) whether the intervening event brings about harm different in kind than that which would otherwise have resulted from the actor’s negligence; (2) whether after the event, the operation of or consequence of the event appear to be extraordinary rather than normal in view of the circumstances existing; (3) whether the intervening forces are operating independently of the defendant’s alleged conduct; (4) whether the intervening force is due to a third person’s act; (5) whether the third person’s act is wrongful in the eyes of the law; and (6) the degree of any third person’s culpability. Bellaire Kirkpatrick v. Loots, 826 S.W.2d 205, 212 (Tex. App. -- Fort Worth, 1992, writ denied).

E. Sole Cause

Sole proximate cause is an inferential rebuttal issue, which means that it is a defense presenting a contrary or inconsistent theory from the claim relied upon for recovery. Rankin v. Atwood Vacuum Machine Co., 831 S.W.2d 463 (Tex. App. -- Houston [14th Dist.] 1992, no writ). It is not submitted as a jury question, but only as an instruction. In other words, the jury must determine that an event or occurrence was exclusively caused by something other than the defendant’s negligence. Logic dictates that if something else was the exclusive cause of an accident, then nobody else could have been responsible.

F. Third Party Defense

This is a defense wherein the defendant would bring a third-party claim against someone other than the plaintiff and put on proof that all or a part of the occurrence and the resulting injuries were caused by the third party. The defendant would, in essence, be attempting to lay off some or all of the responsibility for the accident and the resulting injuries.

X. The Contractual Nature of the Camping Relationship

Most camps today require the camper and parents to complete a lengthy application. Most applications require a potential camper’s personal and health profile so that the camp can determine whether that particular individual would be suitable for their camp. Most camps further include an information sheet for the camper and parents to read which sets forth the camp goals and expectations, as well as general rules and guidelines for the camper to follow. To be enforceable, a contract must have an offer, acceptance, and consideration. A camp that fails to perform its express and/or implied covenants within the agreement, resulting in personal injuries to one of its campers, may be subject to a claim based on breach of contract. In Texas, a claim brought under this theory would not only allow for recovery of the damages based on personal injuries, but also would allow for the recovery of the reasonable and necessary attorneys’ fees, which are not ordinarily recoverable in a simple tort action.

XI. Affirmative Action: Camp Inspection/Maintenance Areas

With a general understanding of the foregoing areas of discussion, a camp can take affirmative action to conduct a proper analysis, evaluation and determination as to whether their prospective campers are going to be exposed to an unreasonable risk of harm. The following areas and thoughts are not listed to be a complete checklist; however, at a minimum, I would suggest that the prudent camp owner and/or operator would conduct routine inspections and maintenance of the following areas:

A. Kitchen/Dining Hall

B. Food Storage

C. Refrigeration

D. Dishwashing or Mechanical Machines

E. Water Supply

F. Cabin Quarters

G. Firefighting Equipment

H. Waterfront

Safety Rings in Proper Locations

I. Firearms/Archery Range

J. Campground/Entrance

K. Miscellaneous Training/Policies

XII. Conclusion

Camp operation and activities can be fun and rewarding only if proper training, inspection and planning is conducted prior to your campers’ arrival. Use common sense and realize that you are in charge of the most precious possession of all of the families that send their children to you. Constant supervision, inspection and maintenance is required to predictably reduce the foreseeable accidents waiting to happen, and to maximize the time and opportunity you have to share with your campers.