As we approach summer, many children look forward to graduation or summer camp, or are excited about building memories and finishing the school year with exciting field trips and proms. Few schools and camps, however, consider the liability that might stem from relaxed rules, “summer fever,” and hastily organized activities. Many children are injured at this time of year when rules are relaxed and appropriate supervision is not always provided.

Graduation activities — all-night lock-in parties, in particular — present several dangers. All-night parties under school supervision are popular because they reduce the risk of alcohol and drug abuse by students who might attend other, nonsupervised events. But they expose students to a new danger: sleep deprivation, graduation’s night silent killer and the second biggest killer on our highways. Typically, event planners keep high school graduates, who have been in school since early morning, entertained from the beginning of the party until the next morning with a variety of activities. In the morning, students leave unsupervised and in a condition that research shows is similar to alcohol or drug intoxication — resulting in car accidents and sadly death. Yet, based on data I gathered through a telephone survey of more than 300 high schools across the United States, those who plan all-night graduation parties generally do not consider fatigue and sleep deprivation as potential risks.

A few easy and effective precautions can protect schools from lawsuits. Transporting students in school buses to the event and back home in the morning can save lives. Even if transportation is provided, adopting clear policies and procedures to protect students from driving while sleep-deprived is equally as important. These policies should specify that under no circumstances will any student, staff member, or parent chaperone be allowed to drive after an all-night graduation party. Other transportation options must be arranged. Schools have a duty to protect students from harm, and no reasonable educator would allow an intoxicated student to get behind the wheel of a car. Why allow a sleep-deprived student to do the same?

Field trips                                                                             

The same logic follows when it comes to end-of-the-school-year field trips and other activities, as well as half days and irregular schedules. Unfortunately, there are numerous cases involving field trips that resulted in drowning deaths, sexual assault, hazing, and bullying — all resulting from the lack of organization, clear rules, too few chaperones, or inadequate supervision of students.  Special attention and planning needs to take place for students that have a demonstrated a need for extra supervision in the past or need one-on-one supervision. Teachers in charge need to maintain high standards of supervision for all students during field trips. Some considerations include:

• The age of the students
• Whether a student has a disability that requires additional supervision
• The number of adults needed to keep an eye on all the students
• The uniqueness of the location that might require additional supervision
• Safety hazards at the site, such as a river, cliff, or highway

All of these issues should be considered and addressed before the administration approves a trip and sends notices home to parents. Planning, clear rules and policies, and appropriate supervision can save a student’s life and prevent a costly legal battle for the school if a child is injured while participating in the activity.

Summer camps

Parents should keep liability issues in mind when researching summer camps. Overall, summer camp can be a valuable and delightful opportunity for any child, as it is a place to reach out and try new things, meet new people, and develop as a person. On the other hand, camps can be full of hidden liability traps; sleep-away nights, horseback riding, archery, rifles, rope swings — all involving children who are supposed to be supervised by trained adults (in some circumstances, college students), Many of these types of activities are accidents waiting to happen. Cases involving campers being injured or sexually abused as a result of poor supervision and staff training are not unusual.

To avoid exposure to a litigation-conscious population, summer camps have instituted the practice of making campers and families sign all-inclusive liability waivers. When well-written waivers have been in place, many verdicts have favored camps and other agencies that supervise children’s programs because parents released them from liability. If a camp or agency institutes clear policies, follows procedures, and does everything right, it is highly unlikely that a parent would win an injury lawsuit.

All-inclusive waivers, however, do not always protect a camp. A waiver is not valid if an injury can be attributed to the camp having breached a standard of care or if it was careless or negligent about supervision. If, for instance, the camp or agency didn’t maintain its playground equipment properly and a child was injured, the camp may be liable, invalidating the all-inclusive waiver. Depending on the specific issue of supervision (or lack of it), an all-inclusive waiver might not protect the camp.

10 considerations

Numerous elements should be reviewed when examining cases that involve injury at a school-sponsored event or summer camp. In no particular order, here are 10 key considerations:

1. What risk-management procedures does the school or camp have in place?
2. How are staff, counselors, and volunteers screened and selected? Are criminal background checks performed prior to supervision — even for summer jobs?
3. How are volunteers trained before they supervise a school- or camp-sponsored trip?
4. What kind of discipline code is followed? Is it enforced? By whom?
5. Are yelling, bullying, harassment, or physical force tolerated? How are incidents of violence and abuse handled?
6. Do students or campers know whom they can talk with and what to do if they feel unsafe or harassed?
7. Are appropriate procedures in place to prevent teachers, counselors, and volunteers from being alone, one-on-one, with children?
8. Are at least two counselors or adults present in each cabin at a sleep-away camp?
9. On class trips, is there adequate supervision for the size of the group? Are there, for example, at least two staff members or volunteers for class trips of eight or ten students?
10. Are age groups reasonably established and kept separate for activities and sleeping?

Meticulous planning will not necessarily prevent lawsuits in case of an injury, but it will keep children safer and could help a school, camp, or agency avoid liability. School and camp administrators should instruct their staff to consider all the possible dangers that might cause injury to a child at an all-night graduation party, a field day activity on school grounds, a day or overnight trip, or other end-of-the-year or summer activity. Make a list of how each of these possible dangers can be avoided. Looking at the possible unfortunate outcomes of injury and planning for the protection of children is the duty of those responsible for children in schools and camps.

Many of the cases for which I provide consultation and expert witness testimony involve the question of whether a school or agency provided appropriate supervision when someone under its care was injured. The question asked by a child safety and supervision expert in such cases is, “Did the school or agency, through its administration and/or other employees, act reasonably and within the standard of care in accordance with the customs and practices of the field?” Lack of or inadequate supervision is the most common allegation of negligence. It is estimated that in cases involving programmatic situations (i.e., where standardized procedures exist), approximately 80 percent of plaintiffs’ allegations involve supervision. My experience in working on such cases reinforces this statistic.

Lack of supervision itself may not necessarily create liability; it must be shown that lack of supervision is the proximate cause of the injury. For the plaintiff to recover, the defendant must also have a duty to supervise the plaintiff. A key element here is the distinction between a duty to render specific supervision and a duty to provide general supervision.

Specific Supervision

Specific supervision is required when a person is involved in activities in settings with obvious hazards, or is incapable of protecting himself from harm in these settings. The type of supervision required depends on the activity and age of the children. A good example would be supervision of children who cross a highway to reach a school or a bus stop. In this case, there would be a duty to supervise, and that duty would be even stronger to supervise 5-year-old children as opposed to high school students.

Another situation in which specific supervision would be required is when participant behaviors indicate a need for it. Such an example would be when the teacher or supervisor has been warned about the “propensity” of a child to behave in a manner that is either self-injurious or dangerous to others. The combination of a child who is known to behave in a dangerous way and environmental hazards that pose a threat of injury mandate specific supervision.

Specific supervision is most often thought of in the instructional mode. From a legal perspective, instruction is given so that the student can gain knowledge of the activity, understand the activity in terms of one’s own capabilities, and appreciate the potential for injury before assuming the inherent risks of the activity. As the participant gains in knowledge, understanding, and appreciation, the degree of specific supervision required is gradually reduced as the participant is provided with transitional supervision and then general supervision.

The individual defines the need for specific supervision. Specific supervision is not a function of the activity, but of the person who participates in it. Some people talk about “high-risk” activities or “hazardous” activities. Courts have not held any activity except boxing inherently dangerous. Rather, the key lies in the person, how she participates in the activity, and how she should be supervised. Think of “people hazards” rather than “activity hazards.” The determinant of likelihood of injury is directly related to the participant’s skill capacity; physical and mental condition to do the activity; and knowledge, understanding, and appreciation of the activity itself. If, for instance, physical disability or lack of mental capacity diminishes a person’s ability to perform an activity, then specific supervision is required.

General Supervision

Children transitioning from one activity to another in school or at a summer camp do not require specific supervision if there are no obvious hazards present. As long as the supervisor-to-child ratio is reasonable and that supervisors in the area are aware, listening and responding when necessary, then the general supervision standard of care is met.

General supervision has two dimensions — individual-oriented supervision in an activity, and group–behavior-oriented supervision in a facility or other location. When engaged in individual-oriented supervision, the supervisor is focused on the child’s manner of engaging in the activity. For example, a teacher in a shop class watches to ensure that students properly use the equipment. In contrast, someone assigned to group-behavior supervision in a facility or an area (e.g., a cafeteria or an outdoor recreation area) watches the behaviors of children and dangerous conditions.

Almost all playground cases allege lack of supervision; in most cases, however, general supervision is all that is required. While a school or agency is not an insurer of safety, there must be supervision when children are on the playground during times when the school or agency is in charge, such as during recess. The fact that each child is not personally supervised every moment of each school day does not constitute fault, nor do spontaneous or planed acts of violence by children on school grounds create liability if the area is well supervised. Constant and undeviating supervision would be prohibitive and, probably, impossible.

Supervisors, however, should be alert for prohibited or dangerous activity that prompts a need to transition from general supervision to specific supervision. A playground monitor, for instance, provides general supervision at recess, watching or listening for anything that might indicate that a child could cause harm to himself or another person. If the monitor witnesses a child jumping from the top of a slide, the monitor must move from general to specific supervision. A reasonable supervisor would know that this is a dangerous situation that could result in injury — necessitating the provision of specific supervision. If supervisor calls out to the child and quickly goes to the area to intervene so that the child discontinues the behavior, the supervisor has acted appropriately under the circumstances to keep the child safe.

Numerous Variables

Recent cases for which we have provided consultation demonstrate that though a school or agency may have appropriate safety procedures in place, a child can, nonetheless, become injured. In such case, a summer camp met all the standards with regard to child supervision; yet when a child threw a stick to the ground, it bounced up and struck another child in the eye.

In this case, camp staff had previously seen children picking up sticks and instructed them not to play with sticks, as part of their safety lessons. The staff-to-camper ratio exceeded the standard and, at the time, the staff was providing appropriate supervision. The children were moving from one location to another, making general supervision the standard. Camp counselors watched the children carefully and were close enough to intervene, if necessary. Suddenly, the child picked up a stick. As soon as he noticed that a counselor was watching him, he threw the stick down. The stick bounced off the ground and struck the other child.

After a review and analysis of the facts and circumstances, my rendered opinion was that the camp met the standard of care in accordance with the customs and practices of the field. The type of supervision and number of counselors present were adequate for the circumstances. The spontaneous behavior of the child who picked up the stick was not foreseeable, and the fact that a staff member watched this action constituted appropriate supervision in the moment. Knowing that he was being watched, the child threw down the stick without warning.

Numerous variables are involved in determining whether a school or agency breached a duty to supervise.  I can help plaintiffs and defendants understand how these variables may influence a determination of liability.