Summer Camp not liable for injuries of camper inflicted by another camper.

Murawski v. Camp Nageela, 4 Misc. 3d 1025A; 798 N.Y.S.2d 346; 2004 N.Y. Misc. LEXIS 1542; 2004 NY Slip Op 51045U

No advance knowledge of the possible assault does not make camp liable.

The plaintiff was a ten-year-old boy attending a multi-week summer camp. The plaintiff was attached by a smaller camper causing minor injuries and a broken finger. The plaintiff sued for “improper supervision and a failure to provide proper medical care after the assault.”

The defendants were the camp, camp employees and church officials who ran the camp. The defendants raised the defense of a spontaneous altercation that could not have been anticipated, and any delay in medical treatment caused no adverse effect upon the plaintiff.

The plaintiff shared a cabin with the camper who assaulted him. There had been a yelling altercation between the two boys prior to this incident. Generally, the two boys did not get along. The plaintiff was in the cabin looking for something. The smaller camper thought that the plaintiff was holding something of his when the two started yelling. The smaller camper eventually hit the plaintiff with a hockey stick.

The plaintiff did not complain to anyone about the other camper. The camp had no record of any problems and no one who saw the prior exchanges between thought those exchanges amounted to a major problem.

After the assault, the camp nurse splinted the finger of the plaintiff and followed up with the plaintiff twice. Each time the plaintiff informed the nurse his finger was feeling better. Two days later the plaintiff’s mother came to camp and took the plaintiff away for several hours. When she came back she asked the plaintiff’s finger be x-rayed. (For some reason, some reason this seems like a red flag to me.)

So?

For camps, the first hurdle that is always misunderstood by parents, rarely understood by camps and sometimes missed by courts is the standard of care that a camp owes to a camper. That standard is that of a reasonably prudent parent. That standard does not require constant supervision. The court found that constant supervision would not be a desirable situation because it would not foster self-reliance in the campers.

Camps, like schools are not insurers of safety for they cannot reasonably be expected to continuously supervise and control all movements and activities of the campers. . . .. In order to establish a breach of the duty to provide adequate supervision a plaintiff must show that the camp authorities had sufficient specific knowledge or notice of the dangerous conduct which caused the injury; that is, that the third-party acts could have reasonably been anticipated

Because constant supervision is not required, to be liable under New York law, the plaintiff must prove the camp was on notice that there was a problem or that a camper had exhibited dangerous conduct.

….there is no factual basis to conclude either that the camp’s agents had knowledge constituting notice of a particular danger to the infant plaintiff prior to the incident or that the incident that caused the infant plaintiff’s injuries was anything other than a sudden, unanticipated independent act by a fellow camper.

Thus without knowledge of prior bad acts or an intent on the part of the attacking camper, the camp is not liable for the acts of the smaller camper.

The next issue the court reviewed was the medical care. Several issues supported the camps’ defense.

The camper was inspected by a nurse initially and twice with follow ups. Each time the plaintiff told the nurse he was getting better. There was also no long-term damage to the plaintiff’s finger which would give rise to a claim or greater damages. Also, the plaintiff could not prove that the failure to provide immediate care did not cause injury upon the plaintiff.

So Now What?

You cannot rely on courts to inform parents of the standard of care that you must use with their children. That will eventually lead to insurance premiums you cannot afford.

Nor can you tell parents that you will treat their child with the same care they would. Again, parents never do anything that injures their child and any injury will create a problem for you.

What you can do is inform the parents of two things.

·        How hard you work to keep kids safe.

·        Kids get hurt.

As I have said repeatedly, absent foam rubber on every tree and trial, kids are going to find a way to get hurt. You need to make sure that parents know that the adventures and excitement that draw kids to your camp are the same things that may issue them. Like riding a bike, it takes a few crashes to learn how to ride a bike, and as you get better you push your limits more and crash some more.

If you do not get this idea across to parents, every time a kid is hurt, you may have to have a judge prove to the parent you are not liable. That is costs too much time and money.

The scary aspect of this case is the issue of medical care. Twenty years ago when I first started looking at cases in the outdoor recreation community, I never saw any allegations concerning medical care or first aid. Recently, I’ve written about two cases where it was an issue, and it seems to be a growing issue.

What do you think? Leave a comment.

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Copyright 2012 Recreation Law (720) Edit Law

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Every time someone comes to your business or every time they sign up again they should sign a release. This time it got rid of a major problem.

Dearnley v. Mountain Creek, 2012 N.J. Super. Unpub. LEXIS 527

Releases work for future injuries and for injuries that may have all ready occurred.

This is a case where as part of the employment at a ski area, the family of the employee was able to get season passes. A requirement for the season pass was to sign a release.

In this case, the plaintiff was injured skiing on a season pass issued to the family member of an employee. The plaintiff sued the ski resort for his injuries. After the lawsuit had commenced but before trial, the plaintiff got another season pass and signed another release. The second release language was sufficient to stop the lawsuit.

The release was called a post injury release now because it stopped a lawsuit after the injury. Normally, I discuss pre-injury releases. Pre-Injury releases are releases that are signed in case someone is injured in a negligent manner.

Summary of the case

After it was discovered the plaintiff had signed a second release, the defense moved to amend their answer and filed a motion for summary judgment. The trial court granted the motion to amend and add the defense of release and accord and satisfaction. The plaintiff appealed.

Release” is an affirmative defense. An affirmative defense is one that must be plead immediately in the answer of the defendant or the defense is waived. Release as a defense means that the parties have executed an agreement that releases the defendant from any claims.

Accord and Satisfaction” are also an affirmative defense. Accord and Satisfaction means the party have come to an agreement, an accord and resolved their differences to the satisfaction of all parties.

The plaintiff argued that the post injury release was unconscionable. The contract should not be enforced because of:

“….inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract formation process.”

An unconscionable contract or a contract of adhesion is one that the terms were offered on a take or leave it basis the terms are unjust to the point the court cannot allow the contract to stand. The contract must be so bad as to shock the conscience of the court. However, the contract cannot just be bad to one party.

Here, there are several factors that would not make the contract unconscionable. The contract is not for a necessary service. The services could be received from the same party in other ways. (Instead of signing a release and getting a season pass, the plaintiff could have purchased daily lift tickets and not signed a release.) The services were available from other providers.

The court found there were no coercion, duress, fraud or “sharp practices” by the defendant. The agreement did not change the duty of care nor did it “incentivize negligence.” Each of the contracting parties gained or gave away something of value.

So Now What?

Here the defendant was lucky. The plaintiff unknowingly signed a release to get his season pass that had the language necessary to stop a claim that had already occurred. There are two important points to bring up from this case.

1        Make sure your release has language to top future claims and past claims.

2.      Every single time have every single-person sign a release. Get a new season pass, you sign the release again. Go rafting again, you sign the release. Buy another widget sign the release.

You just never know when a release from the future may stop a claim from the past.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2012 Recreation Law (720) Edit Law

blog@rec-law.us

Twitter: RecreationLaw

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