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Recreation Law: Issues Involving Your Duty of Care–Where Does it Begin and End?

Reb Gregg
Catherine Hansen-Stamp
Article Date:  October 16, 2017

Gniadek v. Camp Sunshine of Sebago Lake, Inc., 11 A.3d 308 (Me. Sup. Ct. January, 2011).

Camp Sunshine (“Camp”) is a non-profit corporation, providing a summer camp experience for children with chronic or life-threatening illnesses, and support for their immediate families. Seventeen year-old Katie Gniadek and her mother attended a one week camp as volunteers. Katie had been volunteering for Camp Sunshine for week long sessions for several years before the session in question. She had also attended several off season fundraisers. Both Katie and her mother had submitted medical information in connection with their application, reporting that Katie had been prescribed anti-depressants and her mother had suffered a head injury.

After arriving at the Camp, Katie met another volunteer named Michael Newton. Newton was 58 yrs. old. The Camp had accepted Newton as a first time volunteer after learning that he had had experience with children and checking with his two references. About 2 weeks before Katie’s arrival at camp, an 18 year-old female volunteer had complained about Newton’s behavior toward her—stopping to see her in her room, bringing her gifts, and talking with her about personal matters. The volunteer reported these instances to the Camp Director. The Director recommended that the volunteer limit her contact with Newton, and then spoke directly with Newton about his behavior. Newton indicated he was just “trying too hard to be friendly.”  The Director told him to give the volunteers more “personal space.” The Director conducted a criminal background check and driver’s history check on Newton—both of which came out clean.  In addition, he talked with Newton’s supervisor who reported seeing nothing unusual. One volunteer was reported to have “apparently observed” seeing Newton “patting young females on the buttocks and rubbing their shoulders,” but the volunteer did not report this to Camp officials.  

Upon Katie’s arrival, she became acquainted with Newton. On her last day, he gave her a card and gift, and asked her if they could keep in touch. She agreed.  She and her mother also obtained copies of the Camp contacts list, which listed the name, address and phone number of the counselors and families in attendance. (The Camp had begun compiling these lists for families, at their request, and participation in the list was voluntary). 

About 2-1/2 months after the Camp session, Newton obtained permission from Katie’s mother to contact Katie about accompanying him on a trip to see some camp families. Katie’s mother gave him Katie’s cell phone number. He phoned Katie, and asked her if she would like to drive with him to New York, to visit a camper family that had attended the Camp. During that conversation, Katie learned that Newton would no longer be volunteering at the Camp. Neither Katie or her mother inquired further. Katie asked permission from her mother to attend the trip and then agreed to go. (The Camp had no knowledge of these plans).  Two days later, Newton picked her up. He apparently informed Katie and her mother that they would be staying the first night at one of two homes of former Camp volunteers. However, Katie and her mother did not verify this with the Camper families before Katie’s departure. After leaving on the trip, instead of stopping for the night at one of these homes, Newton took Katie to a Connecticut motel for the night. He booked a room with one bed, telling Katie that was the only option available.  After she had gone to sleep, he sexually assaulted her.  He had made sure she had taken her anti-depressant medicine before going to bed (the medicine made her drowsy). He admitted to the crime, and was convicted of sexual assault and sent to jail. 

Katie filed suit against both the Camp and Newton claiming that their actions caused her injuries. Among other things, she claimed that the Camp had breached its duty in the context of a “special relationship” and was negligent in hiring, supervising and retaining Newton. She also claimed that the Camp was vicariously liable for Newton’s conduct under an “agency” theory.  

The Camp filed a motion for summary judgment, claiming it was not responsible for the incident and had no duty to protect her in this case. The lower court agreed, granting the Camp’s motion, and finding that the Camp owed no duty to Katie at the time of the sexual assault. 

Katie appealed the lower court’s ruling, claiming that it erred in finding 1) the Camp had no duty to protect her from Newton’s intentional act, and 2) the Camp was not vicariously liable for Newton’s actions.

The Appeals Court considered the issues. First it noted that the determination of whether a duty exists in any particular case is a question of law for the court to decide. It found that normally, an individual or entity has no duty to protect another from the criminal acts of a third party. However, the Court noted two exceptions: an actor does have a duty to protect another 1) with whom he or she has a special relationship, and 2) facing harm that the actor created.  If either exception applies, it can give rise to a duty.

The Court discussed that a special relationship can either be a “fiduciary” relationship—one of confidence and trust where there is a great disparity of power or influence between the actor and party—for example a mentally ill patient and their therapist; or a “custodial” relationship—for example, that between camp staff and a minor child. 

The Court found there was no special relationship—fiduciary or custodial. Katie claimed she had a fiduciary relationship with the camp based upon her “age, chronic illness, use of anti-depressants, and involvement in the Camp….”  The Court found none, in that Katie only spent one week a year at the Camp, and had, at most, attended three fundraisers. The Court found no “great disparity of position and influence” in the relationship between the Camp and Katie to justify a finding of a fiduciary relationship. Alternatively, the Court found that no custodial relationship existed because Katie’s mother accompanied her to the Camp (she was not deprived of her mother’s protection). The Court explained that a custodial relationship exists between those that voluntarily take custody of another, so as to deprive the individual of his or her “normal opportunities for protection”—as in the case of a camp or school, for example (quoting Restatement (Second) of Torts § 314A (1965)).  In these cases, the camp or school is generally required to exercise the degree of care that a parent would exercise in the same or similar circumstances (reasonable care), (citing to Restatement (Second) of Torts § 320 cmt. b (1965)). The Court identified that this relationship is limited in time and scope—even if a custodial relationship had existed while Katie was at Camp, the assault occurred over two months after she left Camp, when no custodial relationship existed. 

On the second exception, the Court failed to find that by retaining Newton on staff, the Camp had created a danger that exposed Katie to risks. Katie argued that the Camp exposed her to risk by distributing the contact lists, which allowed Newton to contact her after she departed from Camp. The Court found that Katie’s mother had consented to having her contact information included, and offered no proof that Newton couldn’t have contacted them another way had the contact information been unavailable. In addition, the Court found that Newton’s known character and conduct at Camp did not give rise to a “peculiar risk” of harm (that he would commit an assault), such that the Camp should be held to a duty of care to Katie.

In support of her claim that the Camp was vicariously liable for Newton’s conduct, Katie urged that the Camp was responsible under the “agency” theory of “apparent authority.” Under that doctrine, the Camp could be responsible for Newton’s actions if the Camp’s conduct made it appear to Katie (and her mother) that Newton was acting under the Camp’s direction and authority in taking her on the trip (even if the authority did not actually exist). The Court found no basis for the claim, noting that when Newton picked Katie up, he told her he was no longer working for the Camp (he had no authority to act on the Camp’s behalf).  Even if, at that point, it was still reasonable for Katie to believe that Newton was acting under apparent authority from the Camp, a sexual assault, by definition, could not be within the scope of any apparent authority (the camp would never authorize it!). . 

Absent any basis for a duty of care, the Court affirmed dismissal for the Camp, finding that it was not directly liable to Katie, or vicariously liable to her for Newton’s actions.


  • Note that generally (and in a negligence context), a camp or outdoor program will have a duty to exercise reasonable care to protect persons in their charge from unreasonable risks of harm. The scope and nature of the duty can change, depending upon a variety of factors (including the organization’s express representations, statutes, an organization’s internal policies, the parties’ contracts, the particular activity or a variety of other factors), weaving in and out of the parties’ relationship. In Gniadek, the facts were unusual, in that the incident that Katie attempted to hold the Camp responsible for occurred over two months following her attendance at Camp. Had the sexual molestation occurred during her Camp stay, the analysis here would likely have been very different (and focused upon whether the Camp had breached its duty to exercise reasonable care (e.g. in hiring/screening/retaining or supervising Newton, or perhaps, in supervising its minor volunteers). 
  • A review of the lower court opinion provides additional clarity. The lower court discussed the negligent supervision claim in a vein similar to that of the court of appeals. As discussed above, Katie had argued that the Camp’s failure to fire Newton after the problems reported by an earlier volunteer, resulted in his being retained, causing Katie’s harm. The Camp admitted it had a duty to supervise Katie—that is, protect her from foreseeable risks of harm arising from sexual predators during her Camp stay. However, they claimed their duty ended upon her departure from Camp. The lower court agreed, stating that “assuming” the Camp had a duty to exercise reasonable care to protect Katie from sexual predators while at Camp, that duty ended with campers’ and volunteers’ departure from camp (and, in this case, that duty had been fulfilled). At that point, any claim of negligent supervision had to be premised on an “exception” to the rule that a Camp does not have a duty to protect former campers/volunteers from the acts of third parties (see discussion in the case summary, above).  
  • The lower court discusses a general duty to exercise reasonable care in hiring and screening processes to check for sexual predators to avoid an unreasonable risk of harm to Camp attendees. Katie argued that if the Camp had conducted a personal background check and an interview—Newton would not have been hired, and Katie would not have been exposed to Newton, or been sexually assaulted. The lower court disagreed. It found that the Camp had called two references initially. After the previous volunteer had reported problems, the Camp conducted a background check. No information the Camp found would have revealed any problems with Newton. Therefore, the Court found, even if the Camp was deficient in its hiring processes, their later background check revealed nothing, demonstrating that any inadequacy in hiring processes was not a proximate cause of Katie’s harm. Even if the later background check revealed something, and Newton was retained, arguably, wasn’t Katie’s incident too remote in time? That is, the Camp had fulfilled its duty in protecting Katie during her stay at Camp and any later incident was outside the scope of its duty re: hiring/screening.
  • Note the case of Juarez v. Boy Scouts of America, Inc., et al., 81 Cal. App. 4th 377 (2000), where the Court found BSA breached a duty to protect a 12 yr. old boy scout from a volunteer troop leader who sexually assaulted him over a 1 year period. The Court found that the BSA was not negligent in hiring the volunteer, as they’d exercised reasonable care in conducting appropriate screening (that revealed no issues). However, the Court found that BSA had a duty to take appropriate measures to protect scouts from sexual molestation by volunteers. In part, the Court’s determination was premised on the fact that the BSA understood the dangers and had developed a “Youth Protection Program” complete with written information for parent/s disclosing the molestation risks, in their efforts to prevent these occurrences. In addition, the BSA had compiled statistics showing that their efforts to mitigate sexual abuse had helped decrease the problems within BSA. Unfortunately in this case, the Spanish speaking mother of the boy was given an English, rather than a Spanish version of the pamphlet. Unlike in Gniadek where the sexual misconduct occurred over 2 months post camp, in Juarez, the sexual misconduct occurred within the context of the scouting relationship (the Court noting that a valid alternative to its “duty” holding could be the “special relationship” existing between the scout and the BSA). 
  • Gniadek provides good precedent to abate fears that organizations may be held liable for liaisons which may evolve between—say—participants and staff members, or junior (minor) staff and senior staff sometime following the camp session. As we know, this potential is greatly increased with the advent of FaceBook, Twitter and a myriad of other avenues of communication. Gniadek gives support to the notion that extension of the duty of care far beyond the program session is unrealistic, and in most cases, not supported by established legal principles. Such an incident is simply too remote from the duties of care normally present in the relationship. However, that being said, outdoor organizations should address these issues in staff training, and consider the nature of ongoing communication they facilitate between former participants and staff members. In addition, organizations should consider openly discussing these issues with participants and parents, and including information in their written materials or on their website to increase awareness of the potential for problems—making clear that minimizing the risk of these occurrences is a collective effort. 
  • Was the Gniadek Court’s “duty of care” approach reasonable? Should a Camp be responsible for the intentional acts of third parties if there is a “special relationship” or if the Camp created a peculiar risk of harm? The Gniadek Court didn’t find it in their set of facts.  In Beul v. ASSE International, 233 F. 3d 441 (7th Cir. 2001), the jury found a 16 yr. old German girl (Kristen) 41% responsible, and the defendant exchange program 59% responsible (reducing Kristen’s ultimate recovery) for her “negligence in the performance of a  contract” claim against an exchange program coordinator regarding a sexual relationship that developed between her and her host father during a year exchange stay in Wisconsin. Although the case involved a claim for breach of contract, the court discussed the nature and scope of the defendant’s duty in terms of the “special relationship” it had with Kristen, and their continuing duty to monitor and supervise her home stay (contractually and otherwise), in the context of a custodial relationship (they “stood in the shoes of the girl’s parents”). In addition, regulations and industry standards regarding the defendant exchange program’s placement and ongoing monitoring responsibilities were important in the case.
  • In another recent “duty” case, a man was found to have breached a duty to his girlfriend for tricking her into jumping off a cliff to save him (resulting in her serious injuries). (Borrack v. Reed, 2011 Fla. App. LEXIS 2247).  He had led her up a steep slope above water and conned her into thinking that he was going to jump. The Court found that generally, individuals are responsible for their own conduct, but that others’ actions can give rise to a duty if their actions create a “foreseeable zone of risk” (the steep drop-off). In this case, the Court found that the man’s actions did create this zone of risk, requiring him to exercise reasonable care in his actions towards his girlfriend to either lessen the risk or see that appropriate precautions were taken to protect her from the harm which the risk posed.
  • This case raises a number of questions that programs need to consider:
    • Do you think the Camp took reasonable steps to protect volunteers like Katie?
    • What would your organization do if you were faced with the reported incident by the 18 yr. old? Dismiss the volunteer? Continue to watch? Take steps similar to those taken by the Camp director in Gniadek? What about distributing contact lists?
    • What about a Camp that encourages gatherings between sessions and web communities—in the name of “community building?” 
    • What does your organization do that encourages or discourages these types of ‘after camp’ relationships?” 
    • How might encouraging these communications affect the legal outcome?

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