John M. Kirby
Nowlin v. Moravian Church in America | Duty of Camp toward Campers| Liability for Assault
In Nowlin v. Moravian Church in America, decided by the Court of Appeals on July 16, 2013, the court ruled that a camp was not liable for an assault on a camper.
In this case, a 16 year old female, the plaintiff, attended a camp. The camp had an event called "The game," during which the older campers, at night, would try to go through a wooded area to reach a goal (and ring a bell). The campers were to play in teams of two for safety. The plaintiff and her partner met two camp counselors, and the partner and one counselor departed, leaving the plaintiff alone with a counselor. The plaintiff alleged that the counselor assaulted her. She sued the camp alleging negligence in their hiring, retention, and supervision of the counselor, and that the camp negligently failed to provide her with a safe environment. The plaintiff noted that the Game occurred in a wide, heavily wooded area, late at night, with adult camp staff participating, and without the supervision of the executive director, assistant director, and camp director.
The plaintiff produced testimony from an expert that the camp's written policies do not include a clear statement prohibiting a staff member from being alone with a camper, and that the camp's written policies demonstrate a disregard for the principle that at least two staff members must be present when working with campers. He also opined that there was a lack of training and ongoing culture of improving and learning with an emphasis on the safety of children or the inappropriateness of staff to camper relationships.
The camp presented evidence that this Game was limited to senior high campers, and that they had to play with a partner. Adult camp counselors and staff members were present as participants in and supervisors of the Game. Also, the staff members were orally instructed that two staffers must be present at all times when dealing with campers and that they were also warned to be very careful about any physical or romantic relationships with campers. The alleged assailant even admitted that he knew his conduct with Summer was "against camp policies," and was "inappropriate and prohibited." In is application, the assailant denied a criminal conviction or other prior misconduct, and he was cleared by the National Sex Offender Registry. He had served as a counselor the prior year without incident.
Regarding the legal standard, the court held, "We hold that camps and their employees have a duty to their campers to exercise the same standard of care that a person of ordinary prudence charged with the duty of supervising campers, would exercise under the same circumstances. . . . This duty of care is relative to the campers maturity." The court noted that there were no prior cases in North Carolina addressing the duty of a camp toward its campers. It drew analogies from other cases involving the duty of persons supervising minors.
The court held that in view of the camp's safeguards, and the plaintiff's age, the camp was not negligent as a matter of law, and that the case against the camp was properly dismissed.
This is a rather complicated tort case. The court ruled that the camp was not "negligent," but it is not clear whether the true reasoning is that the injury was not foreseeable (thereby lacking "proximate cause"), or that the injury would not have been prevented by further safety measures (i.e. "but for causation"; as the camp counselor knew that his conduct violated the rules, the presence of written rules or more instruction might not have altered the outcome), or that there were intervening acts (which is a variant of the proximate cause issue).
John Kirby has written extensively on the claims of minos in North Carolina, including a Law Review Article published in 2012 on this issue. This research includes the duty of persons supervising minors.