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ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp

This case shows how standards, written by a great organization with good intentions can be used to help, encourage and support lawsuits against its own members.

This case was settled, but it is full of information that everyone who may be a defendant needs to understand.
This case was started by a woman, the plaintiff, more than five years after she had spent a couple of weeks at a summer camp. She was not a camper nor was she working at the camp. She had been invited out by a staff member to give her a break from home. Allegedly, she was (consensually although there may have been statutory issues) sexually assaulted by an older staff member. She sued the staff member and the camp.

The plaintiff, to support her position, hired an expert witness. This is a common practice to support a claim. The expert witness’s job is to prove the defendant camp had acted in violation of the standard of care for camps. The plaintiff’s expert was an ACA standards visitor. The Expert Opinion by the ACA standards visitor was used in the plaintiff’s motion to support a claim that the defendant Camps actions warranted an award of Punitive Damages.

Punitive damages, are damages awarded by the jury above and beyond actual or compensatory damages. The damages are meant to punish the defendant. Punitive damages are not covered by insurance, are not dischargeable in bankruptcy and are in addition to any other damages. The defendant must pay punitive damages, if awarded, no matter what. Consequently, if the court approves the motion to ask for punitive damages in a case, it almost always forces the defendant to settle for fear of having to pay money out of their own pocket. The facts are never thoroughly litigated because they fear of the punitive is overriding. Even if you are 100% right, you may still settle in if punitive damages is a real threat.

The expert for the plaintiff (no relationship to me) was listed as an expert because she was an American Camp Association Accreditation Standards visitor. The experts Resume listed her ACA membership and her ACA Associate Visitor status second only to her education. The “Standards” allegedly violated were the 1998 ACA Accreditation Standards for Camp Programs and Services.

The expert opinion listed five areas that the camp had violated the standard of care for camps. Those areas are listed in the report as Opinion 1 through 5. ACA standards were used to support the expert’s opinion in three of the violations.

The first opinion rendered was the defendant camp violated the then ACA Accreditation Standards – HR-10. HR-10 states no camp staff member is to be under 16 years of age. The plaintiff at the time she was visiting camp was 14.

The first issue is the standard was applied to a fact situation that really had nothing to do with the claim. However, because there was a standard that could be linked to the claim, no matter how remote, the standard was alleged to be violated by the defendant. The plaintiff in this case was not a camp staff member, was not a volunteer, and was not getting paid. She was there for a break from her family. Nevertheless, the standard was applied to show the defendant camp should be held liable for punitive damages.

The second issue is the standard created by the trade association that the camp was a member of, was used to show the camp was negligent. That is just wrong!

Opinion 4 stated that 4 ACA Camp Standards were violated:

HR-11 requires six days of pre-camp staff training of employees.

HR-12 required late hire training for employees.

HR-13 requires implementation of in-service training for employees.

HR-19 requires specific training for staff supervisors to maintain staff performance and address inappropriate staff behavior.

The plaintiff had not received any training. I’ve never seen a camp train any visitor. (Although I’m sure you wish you could sometimes!)

All four “Standards” were violated because the plaintiff did not receive any of the training required by the ACA “Standards”. Again, visitors to camp need to go through training? Late hire camp staff training? Hire usually means someone is employed, consequently, paid, which never occurred here.

Opinion No. 5 stated the defendant camp violated ACA Standard HW-19 and ACA Standard HW-20 on the proper system of health care camp record keeping. This was alleged because a cut the plaintiff received was not recorded in the nurse’s log.

What is so interesting about this issue was there was no allegation that the cut the plaintiff had received was received or treated negligently. Nothing in the lawsuit claimed the way the plaintiff received the cut, the first aid or treatment was negligent. The complaint just stated she received a cut and was taken home by her parents. The suit claimed that an older camp staff employee had sexual relations with the plaintiff.

However, this is a perfect example of how plaintiffs use any violation of the standard, whether or not it has anything to do with the claim, to make the defendant look bad in the eyes of the court and the jury. Good defendants do not violate standards. Here the defendant was obviously bad because the standard was not met.

There is no way that any camp can operate and not violate one of the “Standards” at some time during the camp season! 1998 there were just too many of them. In 2011 there are even more.
 
To support the allegations made in the plaintiff’s expert report copies of the “Standards” were attached to the report. The following pages were attached to the report:

Cover Page
Title Page
Table of Contents vii
Table of Contents viii
Page 92 HR-10 Staff Age Requirements
Page 93 continuation of HR-10 and HR-11
Page 94 continuation of HR-11, HR-12 and HR-13
Page 97 HR-18 and HR-19
Page 98 continuation of HR-19 and HR-20
Page 67 HW-19 Recordkeeping
Page 68 HW-20 and HW-21

Why only those pages? Because those are the important pages the plaintiff wants the judge to see. There are limits to how big motions can be how many pages the judge will read, pages, etc. Those are all valid arguments and are real for only putting in the important documents as exhibits.

However “standards” are written with disclaimers and limitations and definitions, none of which are ever given to the court. The court is never shown that there may be limitations to what the “Standards” mean or how they are applied.

Even if those were supplied, the court must apply the definitions that are in the statute or by law first and then as used in the community or industry second. See Words: You cannot change a legal definition.

Trade Associations write standards with the mistaken believe that the plaintiff’s experts and the court will apply the standards exactly the way the standards are intended to be written. The facts are once the standards are printed the trade association loses all control no matter how many pages of disclaimers are put in the information.

So the judge in this case, who is pressed for time, reads the report and has a list of standards that are violated. A standard is the optimum word. The camp was below the minimum level of acting or not acting that was set by the camps own trade association. That is all that is needed to keep the case moving forward. Standards were violated. Therefore, there may be negligence. That must go to a jury, there must be a trial and the cost to the defendant (and its insurance company) climbs even higher. (Consequently, your premiums increase also. See Insurance 101 if you don’t fully understand this.)

Even if the additional documentation is put into evidence, the legal definition of the words is going to be used, not how the word is defined in the standards book. See Words: You cannot change a legal definition.

Nor does the court have the opportunity to delve into the standards to find out that most of them are not really standards but suggestions, ideas or just good practices. However, by identifying the book as standard there is a legal definition applied to the work that is just as dangerous as it may be helpful.

Some might say that if the camp was bad then lawsuits get rid of bad camps (or other defendants). However, that never works. This camp did not close up. In fact, in my opinion, this camp was sued because it tried to help out a confused young woman. The end effect is there will be no more attempts to help anyone in the future.

The only real consequence of this lawsuit was the amount of time that spent working on the case. Some money might have moved between the parties, and the attorneys and expert witnesses made money.

Let’s look at the opinion no 1 of the plaintiff’s expert witness. The standard says that employees should not be under the age of 16. Most camps are run by families. Many times there may be two or three generations at the camp. If a staff member sends their 15 year old son to the tool shed to get a tool and in the process the son accidentally knocks over a camper, injuring the camper, the camp has violated that standard. No 16 year olds should be hired by a camp. However, he wasn’t hired. Well, we’ve seen how that does not work, and he was working, providing a benefit for the camp.

The camp has a couple of options.

1. Not allow their children at camp until they are 16.

2. Violate the standard.

You are going to take your kids to camp and have them play video games and watch TV or are you going to put them to work. If you put them to work before they reach the age of 16 you are violating a standard created by a trade association for your benefit.

Say you are an organization that works to install leadership, training and teamwork into the youth. It is common in your organization for the youth to be responsible for other members. (Sound like any organization you know?) Your camps are staffed predominantly by youth because of the training and goals of the organization. Every single one of those camps is in violation of the standard HR-10 (as it was in 1998).
If your youth organization is focused in leadership training and does that by helping youth move up to more advanced and important leadership positions, the entire program will fail if you say to the 14 year olds, wait two years until you turn 16 to move up to the next level, camp staff.

These are just two scenarios where the standard set forth in HR-10 (which is almost identical in the latest version) can be used to sue a camp every single day of the year. However, in both scenarios, nothing has been done wrong other than taking your kid to work and following your youth program guidelines.

Are all standards bad? No, standards for things are great. Concrete “acts” the same way every day. A fight with a spouse, traffic on the way to work, rain, none of this affects concrete. It is going to support XX thousands of pounds of weight. Standards for things work. People and how people operate are subject to millions of things, weather and other people. We don’t’ react the same way. We aren’t affected the same way. We don’t respond the same way, who can you write something down that says we will, no matter what.

For other articles about standards see:

This is how a standard in the industry changes…..but….

Can a Standard Impede Inventions?

Playgrounds will be flat soon

Words: You cannot change a legal definition

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

The motion where the expert witness’ report was filed is here.

What do you think? Leave a comment.

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2 Comments on “ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp”

  1. Jim Moss says:

    Interesting. Either you can look at this entire blog as something to promote my business or not. But to pick one article as promotion only falls a little short. This article has been posted for more than a year by the way and I can’t see where it has gotten me any business.

    Your comment seems to be that I am wrong. I posted the legal decision that my article is based upon also. You can read the legal decision for yourself. I’m not hiding anything.

    Lawyer’s can’t file a lawsuit without a client. So to blame society’s problems on lawyers is a little short sighted. Like the old saying, it takes two to tango.

    The real problem is it is hard to argue that standards are a shield. 1. It is pretty hard to prove and 2. from a legal perspective when you do nothing wrong, everything is a shield. Your argument is being made to justify creating standards, however, that just does not work. More importantly even if they are a shield, they are also a sword and they make it very easy to sue and win a lawsuit.

    Another issue is that a standard presumes there is only one way, the standard to do something. There are a million ways to do things, whether or not they fall below the standard of care is the issue and by writing it as a standard you give the plaintiff’s the knowledge necessary to sue and win.

    Your statement about experts is very interesting. Every time I’ve been involved in litigation for a camp, defending camps the plaintiff’s experts have been ACA standards people (Associate Visitor). So no only is the ACA writing the rules that show you you can be sued, they are training the people to help sue you. For an example see the article ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp, (http://rec-law.us/zmKgoi) and the accompanying documents for proof of this issue: Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp (http://rec-law.us/y7QlJ3).

    Think about it, the person using the standards to sue a camp was trained by the ACA and is using the ACA standards to sue a member of the ACA.

    Like

  2. Larry Allen says:

    This is a frivolous argument written to promote your own business. All of society is rules based. If you deviate from the rules you get litigation. In tiday’s society lawyers file meritless lawsuits as leverage to extort money from insurers.Everyone knows that. Any rule or standard is both a sword and a shield: if you follow the rule you can claim its protction, if not it will be used against you. Even then it is only an argument and not dispositive. Unless someone sets a floor like ACA the plaintiff’s in litgation will find a paid expert to establish one for them. You want hand picked paid plainti’ff whore experts setting the ‘standards’ for you? What a ‘knucklehead”.

    Like


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