By Rick Braschler
At some point in time, a handshake and a nod were sufficient in order to “seal the deal,” and to stick to it. Well, that time has seemingly passed due to the increasing trend of Americans who effortlessly use the legal system as a means to resolve disputes—however large or small. So much so that reality TV has cashed in on the craze, offering viewers a front seat into the courtrooms of these disputes. Meanwhile, the foundations of camping and outdoor adventure continue to shake amidst the legal and regulatory climate and its many fluctuations. Operational standards are in a constant state of change in attempting to keep pace with the various elements that impact them directly: state and federal statutes, medical association mandates, adventure and camping association standards, and case laws, just to name a few. Within this circling of “have to’s” and “should have’s” is the cornerstone by which all is held in the balance—the “incident.” Once the incident occurs, the actions of many ensue. Then, there is the dissection of how, why, where, when, and who is responsible.
So, what is a camp leader to do to ensure the continuation of a program, knowing that an incident may likely occur? Methods of prevention and avoidance will certainly reduce the probability, but not eliminate them. So, a blend of loss-control measures mixed with risk-transfer methods, such as purchasing insurance coverage, and topped with a well-planned incident-reporting system, will serve to safeguard campers and staff members, as well as to protect the organization.
For the sake of this article, the focus will be on the incident-reporting process, and pointing out some of the critical issues that need to be addressed. Always remember that, in reporting any incident, there are certain stakeholders who need to be considered. A stakeholder, in simple terms, is someone who has any stake in what has happened, i.e., the organization, employees, participants, visitors, parents, donors, rented- or leased-property owners, medical personnel, emergency services, vendors, and the attorneys who represent them all. Each of these stakeholders will likely be very interested in the content of an incident report, as well as an investigation. The old adage that “less is more” does not necessarily apply to incident reporting, as it may lead to inaccurate assumptions.
There are various types of incidents that can occur, and likewise various levels of reporting. The more serious or negligent the incident, the more in-depth the reporting should be. For the sake of time, let’s address three basic types of incidents and some sound reporting schemes for each:
- Incurred But Not Reportable (IBNR)
- Reportable Incident (RI)
- Serious Incident (SI).
In this scenario, an incident has occurred but was not severe enough to contact emergency or medical services, local law authorities, or an insurance provider. The incident did not produce an injury or damage to property, but under the right circumstances, could have. It is essential not only to report the incident but also to track its frequency in order to utilize proper prevention methods. For example, a participant is sent to the hospital after running into a clothes line, causing serious injury. Through the investigation, it is discovered that several other participants had done the same previously, but were not injured. Had the program director reported the IBNRs, proper prevention methods would have addressed and modified the site to reduce the possibility of a future injury. The same thought process applies to all program areas, including trails, aquatic areas, cabin sites, transportation, and ropes and challenge courses, facilities, and many more. Reporting and addressing IBNRs is the best and most cost-efficient way of dealing with more severe incidents, as they are potentially eliminated through operational and/or structural modifications.
Key components to an IBNR report include:
- Name of reporter
- Location of incident
- Time of day
- Weather condition
- Rate of incident occurrence
- Level of potential damage to property or personal injury
- Short description of incident, persons, or equipment involved
- Resolution to address and fix the situation
- Person responsible for completing the work (most important).
The second type of incident is the Reportable Incident (RI). In other words, an incident has occurred that caused either bodily injury or property damage, requiring contacting emergency or medical services, local law authorities, or an insurance carrier. This RI may not necessarily be the camp’s fault, but does result in a financial loss to the participant. In reporting such an incident, please keep in mind to address stakeholders in the process. Emergency and medical services will need to know all of the pertinent medical information; law-enforcement officials will be interested in the same, as well as who was present, what that person was doing, and how the camp responded. Eventually, if the incident is serious enough, the courts will want to know how it was handled, from on-site care to supervision to transportation to communication. And, were written guidelines, as well as any available industry-specific guidelines, followed?
The difficulty in reporting and investigating is that they are done in the present with the information possibly being utilized for future recollection. If the camp is required to produce information pertinent to an incident that happened 10 years ago, how thorough is the report to explain the camp’s position? According to a colleague with over 25 years in law enforcement, there are three main areas in which an organization may be legally challenged: training, supervision, or equipment. In other words, were essential job training, appropriate supervision, and proper safety equipment for the task or activity provided? It is always wise to maintain records of training, personnel files, handbooks, and site photos, as well as any other material used during the specific year in which an incident occurred.
Key components to an RI report include:
- Name of reporter
- Name of participant
- Date of incident
- Weather conditions
- Brief description of incident
- Supervisors on site
- Eye witnesses on site
- Description of care provided
- Communication to authorities and parents
- Witness statements
- A log detailing follow-up.
Serious Incident (SI)
The last type of incident is the Serious Incident (SI). An incident has occurred that caused bodily injury or property damage, requiring contacting emergency or medical services, local law-enforcement authorities, or an insurance carrier. Furthermore, there exists a degree, whether great or small, of direct fault or negligence as a result of the camp’s operations. Such an incident should be held to a higher degree of investigation and reporting, as SIs can and often do result in some form of legal process.
In conducting an SI report, keep in mind that the information compiled will likely not be presented until at least a year or more later. Some state statutes even allow minor claimants to file within five years after their 18th birthday, which gives a 14-year-old participant roughly nine years in which to file a claim. Obviously, many things will have changed, such as seasonal personnel moving on, handbooks outdated and discarded, weather reports forgotten, company protocols changed, and loss or misplaced records. It is crucial in the reporting process to pay attention to detail in order to access accurate records later.
Key components of an SI report will include the same as the RI report above, with additional emphasis placed on witness reports, including:
- A sketch outline of the site
- Site photos
- Site analysis
- A standard operating-procedure analysis.
In other words, what did witnesses report, what do photos reveal of the area, how did the site contribute to the incident, how did the participant contribute to the incident, and did the camp personnel do what was stated in the operating policy?
Utilizing these tools to paint an accurate picture of the details of an incident will enable the organization to develop effective prevention methods, as well as adequately defend the camp’s position should it be challenged down the road. As the camp industry continues to evolve, the regulatory and legal climate will continue to fluctuate, due to its very nature. However, by focusing efforts on what is within the camp’s control will better equip it for success.
Rick Braschler is the Director of Risk Management for Kanakuk Kamps, a Senior Risk Consultant in youth and outdoor recreation, and a subject-matter expert. He is also a licensed broker and claims-specialist assisting camps throughout the country in navigating the complexities of staff injuries and outcomes. Reach him at firstname.lastname@example.org.