Summer camps offer children invaluable experiences: adventures, new friendships, and personal growth. A camp also offers childcare when school is out, allowing parents much needed room to address personal and workplace obligations. Although most summer camps run without incident, injuries can still happen—bringing with them a complex tangle of legal challenges to navigate. Please note that this article explores legal considerations for Virginia and the law may not be the same in your state.
Summer camps have a lot of oversight.
Summer camps across Virginia must comply with state regulations to be licensed (see Title 35.1 of the Virginia Code) and camp operators must pay close attention to the requirements set forth within the code which can vary depending on the type of camp (day camp, overnight camp, etc.). Further, while not legally mandated, many Virginia camps choose to pursue accreditation through the American Camp Association, committing to national standards for health, safety, and program quality. Many private camps’ policies also mimic state laws, for example, most require immunizations but allow for an opt-out, based upon religious beliefs or other reasons.
Second, comprehensive liability insurance is essential for summer camps as it covers potential accidents, injuries, and other claims. To qualify and keep this insurance, camps must adhere to strict health and safety regulations including food safety standards, emergency preparedness plans, proper sanitation, and hygiene, as well as procedures for handling medical emergencies and the administration of medication. Additionally, summer camps conduct background checks, including criminal records and any history of child abuse or neglect, on all camp staff, which is crucial to mitigate the risk of potential harm to children. Virginia law also mandates that camp staff are considered mandated reporters of suspected child abuse or neglect, so staff members are usually trained on how to recognize and report these situations.
Your kid gets hurt at camp, but you signed a waiver.
The camp staff is usually made up of younger employees (with high turnover) with the unenviable task of supervising multiple children through various activities. For this reason, camps often use liability waivers to protect themselves from potential lawsuits. However, the enforceability of these waivers can be complex and depends on factors such as the language used and whether negligence was involved. For instance, Virginia courts have found that liability waivers, or release forms, are fundamentally unfair to the participant and viewed to be against public policy. The reasoning is that a person who signs the release is often required to sign the waiver so early in the activity or event that they have no way of knowing if the program, event, or facility is safe and if proper measures have been taken to prevent needless injuries. However, the Virginia Supreme Court has upheld liability waivers in cases where an individual’s own actions led to their injury or caused harm to others. Additionally, other courts have enforced waivers when a person knowingly takes part in an activity deemed “inherently hazardous,” fully understands the associated risks, and still voluntarily chooses to participate - even when serious accidents are known to be common. The takeaway is that a liability waiver does not automatically shield the camp from a suit if there is negligence, but recovering for any injury is not clear cut either.
Is the camp liable for my child’s injury if the camp staff was negligent?
In Virginia, the threshold question in any negligence case is whether the defendant owed a duty of care to the plaintiff. Camp employees typically assume a duty of care towards the children attending the camp, as they are responsible for the children's safety and well-being during their stay. Furthermore, although there is generally no obligation to protect someone from the actions of third parties, camps may fall within an exception due to the special relationship between the defendant and the plaintiff. This relationship can give rise to a duty of care, requiring the camp to warn or protect the child from reasonably foreseeable harm - including harm caused by third parties. Still, the law recognizes the concept that a camp does not owe a duty to protect campers from injury resulting from the inherent risks of outdoor or adventure activities, and that a reasonable duty to supervise does not require constant supervision. For this reason, these types of cases are very fact-specific regarding the cause and nature of the injury, the camp's adherence to its duty of care to the injured child, and all applicable regulatory requirements.
Lastly, there is an outlier.
The above may not apply to your child’s camp if it is a charitable organization. Virginia has long recognized the doctrine of charitable immunity, which grants charitable organizations limited immunity from liability for suits committed against their beneficiaries. To qualify for this immunity, an organization must exist and operate as a charitable organization, and the injured party must have been a beneficiary of the organization’s charitable activities at the time of the injury. A tragic case[1] providing an example of this immunity involves a child who drowned in a man-made lake at a church retreat's property. The child’s representatives sued the church and the retreat, but the church and the retreat alleged they had charitable immunity.
While the court noted that strangers or invitees who have no beneficial relationship to the charitable organization are outside the scope of immunity, it would also show just how broad this idea of beneficial relationship is. The court explained that the United States Fourth Circuit Court of Appeals, applying Virginia law, has deemed an individual a beneficiary even when the primary motivation for her visit diverged from the primary purpose of the charitable organization[2]. For instance, someone who was injured while visiting a church solely to view its architecture, not to attend religious services, was still found to be a beneficiary because she visited to "partake in a feature or part of its spiritual function and service.” Continuing with this logic, the court stated that each participant in the camp was a continuous beneficiary of the church and retreat as long as the trip lasted, and the group was on the premises because the goals of the group's trip and the charitable goals of the camp were so closely linked. The claim by the deceased child’s representatives was ultimately dismissed.
Camp is a great experience for children, and an invaluable option for today’s busy parents. Our firm can assist your organization with developing a plan to ensure that you maximize your participants’ safety and well-being, and in turn reduce your exposure to litigation. A well-planned and safely executed operation is smart business—it not only helps attract and retain clients but also protects the organization from accidents and potential claims.
If you have questions about this article, please contact Michael Jacquez (mjacquez@setlifflaw.com) at (804) 377-1262, or Steve Setliff (ssetliff@setlifflaw.com) at (804) 377-1261.
[1] Shull v. Caroline Furnace Lutheran Camp & Retreat Ctr., Inc., 64 Va. Cir. 472
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