Editor’s Note: Christine Taylor, a graduate of UCLA School of Law, is an associate at Towne, Ryan and Partners P.C., a law firm with attorneys licensed in New York, Connecticut, Vermont, Massachusetts, and Washington D.C. Taylor has grown up in the camping industry, her family has owned three campgrounds in both the Kampgrounds of America Inc. (KOA) and Leisure Systems Inc.’s Yogi Bear’s Jellystone Park Camp-Resort franchise systems.
Inevitably as a campground owner, there will come a time when the dreaded occurrence is bound to happen, a camper or visitor allegedly gets hurt at your campground. Whether it was in the waterpark, tripping on roots at a campsite, an old piece of playground equipment or falling down your store steps, there are several procedures that should be followed without fail.
There are things you should have done prior to the incident to protect yourself, things you should do while the incident is occurring, and things you should continue to do afterwards.
The Before
Any time a guest or camper enters your park you should have them sign a waiver. Although the intricacies and legalities of waivers vary by state, at the very least a waiver demonstrates that the camper or visitor is “assuming the risk” of the activity. This helps you build the defense that the camper or visitor knew what they were getting into.
You should also have specific waivers for specific “dangerous” activities, such as firetruck rides or even a jumping pillow. In addition, if you are giving a waiver/release to a customer you must give them the time to read it. If your general waiver/liability release is on your payment receipts make sure that your employees know its location, point it out to the camper and make sure they read and sign it, even if they have already paid for the campsite in full.
At the very least this process puts the customers on notice and will make them think twice about suing. Further, some insurance companies require you to gather waivers. Check in with your insurance company for their requirements.
It isn’t just about the paperwork. To help build a defense in the event of a lawsuit you want to have created policies that demonstrate you did everything to ensure the safety of your guests. First, start a maintenance log for different amenities at your park, let’s use a water slide for example. Have a written log that shows that daily your employees check the condition of the water slide, that there are no obvious defects that need to be repaired. Train your employees on how to check the water slide for defects. If at any time a guest tells you there is an issue with the water slide, document and fix it immediately.
If you are on notice of a condition and choose not to fix it, you will have a harder time building a defense if someone gets hurt. As always, check with your insurance company for special requirements.
The Accident
In the event someone is injured, your employees should already be trained on the steps to take following the incident. The employees should alert a senior staff member as soon as possible. They should fill out an accident form (sometimes provided by your insurance company) with as much detail as possible. Senior staff should take pictures of the area in which the accident occurred, if there is a video camera, the footage should be saved. If there were any witnesses their statements should be taken, and contact information should be acquired.
Admit no fault to the injured person, offer medical care and call an ambulance if necessary. If the injured person is threatening a lawsuit immediately notify your insurance carrier. Some insurance carriers want to be notified whenever there is an injury, regardless of the threat of legal action.
After
Do not, under any circumstances, destroy any photos, video or in some cases the amenity that harmed the guest. In the event of a lawsuit, such destruction can and will be considered spoliation of evidence. Spoliation of evidence is the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding.
This does not mean that you should not fix the issue so other people don’t get hurt. You do need to remedy the thing that caused the injury to avoid a repeat performance. If it is a repair instead of a removal, take pictures and keep an account of the before and after from fixing the offending equipment. If you are removing the equipment, keep it until you are told otherwise by your insurance company. It is in your best interest to get this direction in writing.
You should usually hold onto the information collected and the offending equipment until the statute of limitation for personal injury in your state passes. This varies but is often in the range of one to three years. It is good practice to hold onto all liability waivers and releases for the full statutory period. Even if you were not notified of an injury, a lawsuit might show up later.
If after that time passes there is no lawsuit you can move on and will no longer be required to hold onto that evidence.
If a lawsuit is commenced against you, immediately contact your insurance carrier. This is why you pay them; they hire the lawyers to fight the case, what’s referred to as insurance defense work.
At this point, because you are properly prepared, you will now be your lawyer’s favorite client because you should have all the information the lawyers need, the physical evidence, statements, pictures, policies and paperwork that support your position.
