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Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent

Like a lot of things, the best intentions without legal guidance can become a legal nightmare.

Lesser v. Camp Wildwood, 282 F. Supp. 2d 139; 2003 U.S. Dist. LEXIS 16170

Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent

Like a lot of things, the best intentions without legal guidance can become a legal nightmare.

Lesser v. Camp Wildwood, 282 F. Supp. 2d 139; 2003 U.S. Dist. LEXIS 16170

This is a fairly simple case from the perspective of the facts. Jory Lesser was attending Camp Wildwood. One evening, while at the waterfront for a firework’s display, a thunderstorm came up. Everyone was told to go to their cabins. Jory either got lost or became separated and was going on a different route when a branch blew down injuring Jory. Jory and his parents sued the camp.

Normally, an act of God is pretty hard to sue over. Service of process on “God” is difficult and collecting on the judgment is even harder. So you can’t sue for acts of God. You can sue for acts of God if you say you will indemnify God, or that you will protect your campers from God. That is what happened in this case.

Worse, the issue of protecting the campers did not come from the camp. It came from the Camp’s trade association, the American Camp Association (ACA). Granted, the camp undertook to live by the standards, but without the ACA standards this would have been a very different case. The Camp wanted the “seal of approval” from its trade association and had created a comprehensive plan to qualify to become accredited. The plan set forth specific instructions on what do in case of a thunderstorm. The only problem was no one told Jory about the plan. Kids don’t follow plans real well no matter whether the trade association insists and the camp thinks they should.

Even worse, the plan was pivotal in convincing the judge that the standard of care might have been violated by the camp. Specially, the ACA standards were used to show that there was enough question of the facts to allow the plaintiff’s expert to testify in the case.

In the decision, the court specifically pointed out the relationship between the defendant camp and the American Camp Association as important.

The defendant camp was an accredited member of the American Camping Association, (“ACA “), a private non-profit organization that promulgates standards for camps throughout the United States. The camp is also licensed by the state of Maine.

Pursuant to state licensing requirements and the ACA accreditation process the camp is subject to inspection by both entities.

In connection with their ACA accreditation requirements, the camp is required to have procedures in place for emergency situations. With respect to dangers posed by severe weather conditions, the camp had the following protocol:

From here the court quoted each one of the standards and protocols the camp had, which was being argued the camp had violated.

And it goes on from there. The standards created by the camps trade association, The American Camp Association was used by the plaintiff to show the Camp was negligent.

The case reported here is an evidentiary hearing. The defendant is arguing the plaintiff experts should not be allowed to testify for various legal reasons. These hearings are critical in determining what evidence will be presented to the jury. Here, the ACA standards were used by the plaintiff’s experts to show the camp was negligent. The judge accepted the plaintiff’s and their work because they could support their work with the ACA standards.

The plaintiffs retained David H. Fried, a camp and recreational safety expert, to opine on the defendants’ compliance with the standards and guidelines developed by the ACA.

The decision then looked at the safety plan required to be accredited. Plans are needed. However, they should be written in a way so they do not create liability. The plaintiff’s then went on to show how the plan was not properly implemented by the defendant camp.

The plaintiffs counter that defendants had an inadequate safety plan and that there was a “total lack of camper supervision” on the evening in question. Plaintiffs further argue that defendants breached their duty to the plaintiff by (1) failing to conduct evacuation procedures and drills; (2) failing safely to accommodate and plan for an evacuation of all the campers, including visiting campers; (3) failing to properly train and supervise the counselors in terms of an evacuation plan; and (4) failing to develop a plan to adequately monitor the weather so as to be apprised of an approaching storm.

The crowing proof that the ACA standards are used to show the camp was negligent is the quote below from the court.

According to evidence presented by the plaintiffs, there was also no rehearsal of any safety plan or communication of the plan to counselors, despite the requirement of training and/or rehearsal in the ACA Standards Manual. See Mosley Decl. Exh. N at OM-14 (ACA Accreditation Standards)

The heading for this part of the decision was: The Plaintiffs’ Camp and Recreational Safety Expert May Testify With Respect to American Camping Association Standards.

So?

Simply put the Plaintiff’s expert used the ACA standards, adopted by the defendant camp, to convince the judge the camp was negligent.

Standards are the lowest acceptable level of doing or not doing something. Below that level, if there is an associated injury, someone is negligent. If you do not violate a standard you have not breached the duty of care to someone. No breach, no negligence no matter how bad the injury or how great the damages.

Standards are determined by the jury at trial. Normally, the plaintiff and the defendant put witnesses and expert witnesses on the stand to determine what the standard of care is. The jury then decides based on what they’ve heard. That means the defense has a chance to prove they were not below the standard of care.

The defendant loses that chance if your trade association writes standards for you.

Normally, when dealing with an act of God, there is no decision, there is nothing for a jury to decide. Acts of God are not the fault of anyone, unless they know about the dangerous condition. (That is why it is called an act of God…….) To establish a prima facie case of negligence, the plaintiff must “demonstrate either that the defendants created the dangerous or defective condition which caused the accident, or that they had actual or constructive notice of the condition.”

The court even stated the standard of care for a land owner’s trees. In cases involving fallen trees or branches, a landowner will only be held liable if he or she knew or should have known about a defective condition of the tree. Ivancic v. Olmstead, 66 N.Y.2d 349, 351, 488 N.E.2d 72, 497 N.Y.S.2d 326 (1985). But for the violation of the standards of the ACA there would be no lawsuit in this case based the above issue at the time of the decision.

It does not get any worse than having standards established by a trade association used against the members. (Actually it does when the trade association trains the plaintiff’s experts to testify against its members, but that is for another time.)

Here, because the trade association had created the standard and the defendant camp had agreed to abide by the standard, the standard was set and the defendant could not effectively argue against it. No argument could be made that the standard was not correct. The defendant camp with its trade association had created a situation that guaranteed the loss of the hearing. The court summed it up this way.

Based on the evidence presented, and making all reasonable inferences in favor of the plaintiffs, there is a genuine issue of material fact on the issues of whether defendants provided adequate supervision and whether any inadequate supervision was the proximate cause of plaintiff’s injuries.

The standards allowed the plaintiff find a way to sue the defendant camp, even when one would not normally exist. It changed an act of God into a losing lawsuit because the camp wrote down the camp would deal with nature a specific way.

So the plaintiff’s expert witnesses were allowed to testify at trial that the defendant camp violated the ACA standards which they had agreed to abide by.

No one told Jory, about the trade association standard of care or the evacuation plan.

So II

Some will argue that the defendant camp adopted the standards, so they knew. However, very few people really know the law as it applies to them or their members. That is obvious because the ACA and other groups are still writing standards.

Standards as I stated above are the lowest acceptable level.

How many times in your operation have you found there is only one way, the standard, of doing something?

How many times have you changed the way you do something because either you found a better way or other factors influenced what you do?

How many times have you not moved forward out of fear that you will be moving away from a written standard and thus opening yourself up to greater liability.

How many times have you ever understood the legal definition of the word standard?

There is a disclaimer in the front of the ACA standards. It says:

The purpose of these standards is to educate camp directors and camp personnel regarding practices and procedures followed generally within the camp industry.

It is obvious that the standards of the ACA by their own definition do not meet the legal definition of standard. Practices and procedures found generally within the camp industry are not the lowest acceptable level; they are probably some place closer to average.

By their creation, the ACA standards have created a legal level of care for its members higher than the required by law. Instead of a floor not to fall through the ACA standards is a hurdle that must be overcome.

What do you think? Leave a comment.

 
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13 Comments on “Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent”

  1. From: Catherine Hansen-Stamp (concluding segment)

    Bottom line, in a negligence action, the judge will determine whether a duty of care exists. If so, the fact-finder will look at a variety of evidence, in determining whether the defendant breached that duty (was negligent), and if so, whether that breach of duty legally caused the harm. The defendant’s conduct will be compared to that of a reasonably prudent person/organization acting in the same or similar circumstances (the standard of care). In evaluating whether the defendant met the standard of care – or not — the fact-finder will look to things like standards or practices in the industry (including a voluntary standard setting organization’s standards, or the practices of like organizations in the industry), statutes, regulations, the organization’s own internal polices, etc.

    I understand your position that you find no place in the world for standard setting organizations or their standards. However, those standards are out there, and we, as lawyers, can assist our clients in understanding their significance, and how to navigate them – considering both the positive and negative implications to their business and regarding their potential legal exposure. The same goes for our efforts to educate them about all the other ‘measuring sticks’ that exist – statutes, regulations, practices in the industry, our client’s own policies – whether written or unwritten, etc.

    Thanks for allowing me to post this, Jim.

    Catherine Hansen-Stamp

    Like

  2. From: Catherine Hansen-Stamp (sent in multiple sections)

    It doesn’t appear to me that standards (those set by voluntary standard setting organizations) are going to go away. It also doesn’t appear to me that statutes, regulations, practices in the industry, or an organization’s attempt to provide internal guidance for it and its staff (however well or poorly written all of these are) are going to go away. Organizations look for guidance from their industry, their peers, and craft it in their own organizations. As a result, we, as lawyers, can assist organizations in understanding the impact that those standards, statutes, regulations, industry practices, and internal organization guidance will have on their business, and on their ultimate legal exposure. We can also enlighten them on how to craft their internal guidance in a way that is relevant for their operation, do-able for their staff, applicable, appropriately flexible and the like – so that it is indeed constructive in their effort to run a quality operation, rather than a vehicle that increases their legal exposure. We can work with our clients to understand the impact of published industry standards on the way they are operating (as those standards can impact organizations whether they are accreditated or not) – to comply, if applicable – and if not, to have a good reason why not. Importantly, we can encourage them to voice concerns with standard setting organizations if they believe standards are poorly written, misdirected, or otherwise. We can, as well, voice our own concerns.

    In this way, we can assist our clients in their endeavor to run responsible and quality operations – something most organizations out there want to do. They can’t eliminate risks, as risks are inherent in what they do and offer. However, we can enlighten them about those risks and their endeavor to manage those risks, and assist them in assessing legal and liability issues in the context of their operation. Consequently, an organization can manage – and hopefully minimize – the risk of loss to both its participants and to its operation. The program will be better able to address legal issues in the course of its risk management considerations — in a positive, proactive way, rather than in a negative, reactive way (motivated solely by the fear of litigation). If litigation does occur, our clients are better prepared in their defense.

    I also wanted to point out that I disagree with your definition of a “standard” as “the bottom level of doing something.” Black’s Law Dictionary, 9th Edition, defines a standard as “a criterion for measuring acceptability, quality, or accuracy.” According to Merriam-Webster, 11th Edition, a standard is “something set up and established by authority as a rule for the measure of quantity, weight, extent, value or quality.” You take your definition from legal authority (the Restatement of Torts), cited in case law, that relates to standards defined in the context of legislation. (See cites in your articles titled “”Words” and “What are Standards…” (cited above)). I think your discussion of a standard as a “bottom level” in this dialogue is confusing and misapplied. An organization can develop its own internal guidance for its staff, and label it a standard, policy, guideline, procedure, or other. More important than the label is the substance of the guidance, and whether it was appropriately heeded by the organization.

    (CONTINUED…)

    Like

  3. From: Catherine Hansen-Stamp (sent in multiple sections)

    Dear Jim:

    I agree with Reb on all points re: your mis-characterization of the Lesser case in your effort to criticize standards and standard setting organizations. Please see the article that Reb and I wrote for the ACA Campline in Fall 2005 and entitled “Reasonable Supervision and the “Safe” Environment—What Are the Issues?” discussing the Lesser case. In particular, the title of your piece is not true, as ACA standards did not “prove” the negligence of the camp in Lesser.

    The bigger concern I have is the focus of your dialogue. I think the focus should be on assisting organizations in our industry in their endeavor to run quality and responsible operations.

    As we have discussed many times over the years, I agree that standards set by voluntary standard setting organizations – like ACA or AEE – can create legal exposure and issues for organizations. (Reb and I discuss the pros and cons of standards in our article entitled “Standards – Friend or Foe?” ACA Campline, Spring, 2006). This can happen when standards are poorly or inaccurately written, conflict with standards set by other standard setting organizations, are inappropriately prescriptive, or in other situations. Even if a standard is arguably well-written, an organization can simply fail to follow it. The standard can then, potentially, be used against a defendant who, for example, hasn’t followed a standard that the plaintiff claims was the proximate cause of his harm. In other words, the plaintiff can claim that the defendant’s failure to follow a particular standard (set by ACA, for example) is evidence of a defendant’s negligence. This can also happen if a defendant fails to follow an applicable statute or regulation or a standard or practice in the industry (that plaintiff’s expert claims is relevant to the case). Importantly, this can also happen if a defendant fails to follow its own internal policies, practices, standards, or whatever they label their “way to do things” – whether oral or written! I have seen this happen over and over again in the case law, and I know you have too. On the flipside, these statutes, standards, and practices can provide evidence that the organization met the standard of care – that is, acted reasonably under the circumstances.

    You advocate that developing internal standards (or other guidance) is a good idea for organizations (see your article “What are Standards And What that Means to You?” p. 2, 8 and 9), even though you know that organizations can be exposed to liability if they or their employees do not follow the organization’s own internal guidance. As identified above, published industry standards can play both ways as well, although you damn them.

    (CONTINUED…)

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  4. The court made this heading, not me.

    The Plaintiffs’ Camp and Recreational Safety Expert May Testify With Respect to American Camping Association Standards

    The judge specifically ordered that the plaintiff’s expert could testify that the defendant camp violated the ACA standards.
    Fried has sufficient expertise on ACA procedures to testify as to the extent of Camp Wildwood’s compliance with those standards.

    “Fried has been a camp director or consultant for over forty years. See Mosley Decl. Exh. D, Fried curriculum vitae. Further, he has prepared safety plans for camps and has been responsible for preparing applications for ACA certification.”

    How much worse can it get than to believe your trade association is working to help you only to have a court tell you that an expert is going to testify that the work to help you will be used to prove you were wrong? (And this is not saying that the ACA did anything with any bad attempt. The creation of ACA standards I truly believe were and are still done with the belief that they help. However, times have changed. The standards haven’t and now they are a problem, not a solution.)

    The defendant loses the motion. An expert witness was going to be allowed that the standards their organization wrote and the accreditation they worked hard to achieve was going to be used to prove they were negligent. I think they camp got sunk. They might not have lost the lawsuit on that day, but the cost of settling went up.

    It was not a victory for the defendant camp. For the non-attorney reading this, can you argue that the actions of the ACA supported their members?

    People need to be aware that their trade association is writing documentation that can be used to cost them time and money.

    Maybe some people should panic. I bet this camp owner and camp director did panic when they heard the standards of their trade association were going to be used to prove they were negligent.

    You only argued my language in analyzing the case. Not whether or not the standards written by the ACA could be used against defendant camp based on this opinion. Whether or not the camp’s defense to the lawsuit was sunk is not at issue. The issue was, where the camps trade association standards used to try and sink the camp. How bad they injured or “sunk” the defense of the camp is, is both opinion and rhetoric. Either way, I don’t want to be on that ship.

    I have no “dog in this race.” I don’t represent anyone who is writing standards. I sit on two worldwide groups that write standards. I get nothing from this research. I’m not being paid to respond. I’m doing this because I believe there is a problem when trade associations write standards. I believe this is proof. I don’t see anything that contradicts this.

    Like

  5. Let’s boil it down.

    Who were the standards used by in this opinion? Did the injured camper plaintiff argue the standards were not met or did the defendant camp make that argument? They were used by the plaintiff. The standards were developed by the ACA to help their members, yet here the plaintiff was using the standards to show the camp was wrong. So much so that the judge referred to the standards in the order which we are reading.

    Do you believe that the argument to allow the plaintiff’s expert would not be used at trial to prove the camp was wrong? The ACA standards played a prominent position in the court’s analysis of the case. That is going to happen at the trial.

    It is a perfect argument for the plaintiff to make the defendant look bad in the eyes of the jury. The plaintiff will introduce the standards through their expert witness. The defendant camp will be made to defend against documents, standards, created by a trade association they belong to. It is difficult, but not impossible to prove you did not do anything wrong when faced with standards written by your trade association. I’ve been hired as an expert witness twice to do just that, in a ACA camp case. You first attack the standards, second you attack the ACA. It is not fun or is it pretty. I do not like attacking the ACA. However, the issue is not protecting the ACA when someone is being sued. The issue is protecting the camp that is the defendant and if possible the industry.

    The opinion does nothing but says the expert is going to use the ACA standards to prove the camp was wrong based on the Expert’s testimony which the court was going to allow in.

    cont. below

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  6. I obviously disagree with your analysis Reb. However, I really appreciate your time to respond. Thanks

    I’ll leave the issues of marketing and getting people to read the articles with a great title to those who read the articles and comments. To the issues, you raise:

    Facts:

    This was the result of motions to determine if the plaintiff’s expert witness could testify at trial. The defendant camp had filed a motion to exclude the plaintiff’s expert witnesses. The court ruled against the defendant camp and held that the plaintiff’s experts could testify. This did not end the litigation.

    Effect:

    Did the ruling change the case? Yes. Did the ruling make it more difficult for the defendant to win? Yes. If it did not sink the defendant’s boat, it sure moved it closer to the reefs. It probably increased the cost of settling this case for the defendants. It put the ACA standards into the trial so that the defendant ACA member had to defend against ACA standards.

    Your argument is that I over dramatized the case, that the case was not that important in the overall scheme of things. Maybe, but I don’t think the dramatization is that great. I think the reaction is what was great. Sunlight is not bright, unless you have been in the dark for a decade.

    The next article I posted was the actual case in case someone wanted to read it. I was not trying to provide a legal analysis of a Daubert hearing.

    I was trying to show that standards written by a trade association can have very dramatic and negative effects in a lawsuit. Those standards written by a trade association to help members, and yet they can be used against the members.

    If you were the camps attorney would you be celebrating or more worried about the camp's position at trial after this decision? Would you be worried about being able to argue effectively that the defendant camp did not breach a duty of care to the camper?

    How do you argue your client did nothing wrong, when the trade association you are a member of, has a piece of paper that says you are wrong? It is as close as you can get to admitting liability without opening your mouth to say anything.

    cont below

    Like

  7. Here is a post from Reb Gregg, attorney at law. Reb sent me the post to put up rather than to post himself. So although this appears to be in my name, it is from Reb. Thanks Reb!

    “You have badly misled your readers Jim, in your rendition of the Lesser case and rant against standards. Even your title is misleading: The standards did not “sink” the Camp. The hearing which is the subject of the report which you attempt to describe was to determine if certain experts would be allowed to testify. For purposes of that hearing all inferences were drawn in favor of the assertions of the Plaintiff. Contrary to the announcement in your title, and your article, the Court came to no conclusions about the standards or their applicability or their implications for the Camp’s ultimate liability, if any. The court merely said that the expert offered by the family was qualified to testify about the standards and whether the camp complied with them. So, there was no “sinking” of the Camp.

    The Plaintiffs did not “use” the standards in any way. They may in the future, if this matter goes to trial. But you were not reporting on the trial of this matter – only an issue of the qualifications of experts. Nothing was “proven” at the hearing on which you report and there has been no suggestion from the Court that anyone was negligent.

    Importantly, the Court refused to allow the standards expert to testify about the duty of care owed by the Camp and whether the Camp breached that duty. That duty of care issue, as you certainly know (but failed to inform your readers), goes well beyond the issue of the standards or even a violation of the standards. The Court left the duty of care issue to the jury, as was appropriate. The Court may, if he or she finds a standard was not followed, instruct the jury that a violation might be some (only some) evidence of negligence. But we/you don’t even know that, at this stage of the proceedings.

    You have frightened a number of folks with your rendition of the Lesser case and it’s preliminary and purely procedural consideration of the standards at issue. I don’t expect your curious objection to standards (“if you violate them you might get sued”) to change, but I hope you will correct your report of the Lesser proceedings. No Camp was “sunk”. Nothing has been proven, and the Camp had not been shown to be negligent.

    Reb Gregg
    2/15/11.”

    Like

  8. Thanks for posting.

    I apologize if anyone thinks the ACA is not attempting to do the right thing. That is the wrong impression. The ACA has always worked to do the best for its members and is a great organization.

    However, the world has changed, more in the legal arena than most places, and in the law, dramatically in the past 20-30 years. What was once a good idea to help camps has now evolved into a nightmare for them.

    Your statement “most are written to educate camp professionals to assist them in developing a plan most appropriate for their setting” is a good example of not understanding the legal issues. Standards, from the legal definition are not something that assists anyone. They are the bottom level of doing something. The ACA and other trade associations are writing documents to assist their members and labeling them standards. Those standards then when taken into the courtroom are used as proof that the members have not run their program to the level of the standard. If the standard is written to “assist in developing a plan” it is not the lowest acceptable level of operation. The document written to help has been turned around by the plaintiff as proof of failure to act appropriately, to act in a legally responsible manner.

    Education is done with best practices, great articles and classes. Standards don't educate. Standards prove or disprove the defendant was operating at an acceptable level of care.
    Your statement “some of ACA standards are prescriptive in nature” is proof that the legal issues are not understood by the ACA. A standard cannot be prescriptive in nature. A standard is a bar. To not be liable if a camper is injured the camp must be operating above the bar. A standard is not a high jump bar where the goal is to get good enough and train hard enough to get over the bar. If the standard is written so the camp can work to get better to get over the bar, then the camp will be liable if a camper is injured in an area where the bar was set. Standards are lines in the sand or small bars that camps can step over, not something they must shoot to get over.

    The ACA is a great organization. Camps should be members, so they can understand how to make their programs better. They should go to meetings and talk to other camps to learn what the current standard in the industry is for doing and not doing something. They should be free to adopt the ideas that work best for their program, their staff and their campers.

    They should not be told how to run their camp or face losing a lawsuit if they don’t. That is what the documents do that the ACA and other trade associations have done when they take ideas, prescriptive or not and label them standards.

    Like

  9. Rhonda Mickelson says:

    The American Camp Association@ (ACA) is committed to the health and safety of youth and adults as they learn and grow through the outdoor experience. As a 501(c)3 organization, ACA is legally obligated to promote and encourage education in the camp community and to the public. Since the initial adoption of “Suggested Tentative Standards” in 1935, which were developed and established by camp professionals, ACA has continually reviewed and revised those standards to meet the increasing sophistication of camp professional and the camp experience. That has been a part of ACA's legal obligation and educational objective through its history. The purpose of these standards is to educate camp directors and camp personnel regarding practices and procedures followed generally within the camp industry.

    ACA is well aware that all professionals are held accountable for a standard of care in all phases of their work and operations. The professional camp environment is subject to the same societal standards of care, and accredited camps have embraced those opportunities for excellence. For those professionals who choose to follow recognized standards of care, ACA’s educational program creates no risk and in fact, provides a shield from some risk. However, in our litigious society there can be no guarantees..

    “In order to help ensure that ACA standards current and appropriate, ACA has established a process by which their standards are set and approved. Key parts of this process include:
    • Proposed new standards and revisions from camp professionals
    • Review of relevant standards promulgated by recognized subject matter experts
    • Opportunity for comments from internal and external audiences
    • Environmental scan and search of relevant literature
    • Legal review

    Likewise, State and Federal regulations also establish related standards of care as do other professional bodies in their areas of expertise.

    While some of ACA standards are prescriptive in nature example: do you have a currently certified lifeguard at all aquatic activities), most are written to educate camp professionals to assist them in developing a plan most appropriate for their setting. We know that what is right/best for one camp might not be the best for a second camp. Because of the great variety of sites and program offerings, there is no “one size fits all” solution. Rather, ACA standards are intended to educate camp professionals to the issues and stimulate them to develop the best solution for their environment and setting.

    With the help of camp professionals,ACA will continue to review and revise the standards to help camp professional be prepared for what might seem like the unexpected as well as prepared for the “everyday occurrences”.

    Rhonda Mickelson
    Director of Standards
    American Camp Association

    Like

  10. Dave says:

    great article and definitely something for camp professionals to look at and discuss with their legal counsel. thank you.

    Like

  11. Guidelines would be better. But best practices would be best.

    Like

  12. Anonymous says:

    What if they just changed the wording from ACA Standards to “Guidelines”?

    Like

  13. Jeff Sparhawk says:

    This may have interesting implications far beyond summer camps. Pay close attention to any trade association or agreements.

    Like


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