In October, the parents of 17-year-old Ariana Sierzputowski filed a $41.7 million negligence lawsuit against YMCA Camp Mohawk, an overnight camp for 7- to 15-year-old girls located in Litchfield, Conn. The lawsuit, filed in U.S. District Court in Connecticut, alleges that Sierzputowski contracted Lyme disease while at the camp in 2011, when she was 14 years old.
The first part of the negligence claim alleges that Camp Mohawk breached a legal duty when it failed to follow its own tick-prevention protocol, which was established to protect campers from tick bites and potential tick-borne illness. The suit further claims that the camp breached its duty to provide adequate and timely emergency medical care after Sierzputowski was bitten by a deer tick, thus causing her harm.
More than two years after the camp experience, Sierzputowski continues to suffer lasting impacts of Lyme disease. Conditions such as cognitive impairment, joint pain, muscle spasms, nausea and difficulty breathing have caused Sierzputowski to miss 52 days of her sophomore year of high school, 45 days of the first semester of her junior year, and all of her second semester of junior year. She is currently completing her senior year at home.
The first of the negligence claims is based on the plaintiff's allegation that Camp Mohawk failed to follow a four-stage program of precautions it included in its camp handbook, as well as on its camp website. Per Camp Mohawk documents, the following four steps are intended to "reduce the probability of a tick attaching itself to a camper and the possibility of Lyme disease":
1. Daily, each camper is observed by her cabin counselor for the purposes of noticing any rashes, infected bug bites, sores or other unusual skin conditions. If anything of concern is noted, the counselor makes a note on the camper's daily health check form that is reviewed daily at breakfast by the camp nurse. The camp nurse then follows up as needed.
2. Campers involved in activities outside of the core and mowed areas of the camp, such as nature walks, are informed at the meal preceding that activity to wear appropriate clothing — long pants and sneakers — and apply bug lotion to exposed skin just prior to participation. The activity instructor reinforces this procedure at the time of the activity. Loose fitting clothing is suggested, including light-colored pants that can be tucked into a camper's socks if necessary.
3. Campers involved in overnight tenting activities such as a cabin or outdoor living program should take the same precautions as stated in step two, as well as visit the camp nurse for visual inspection for ticks upon their return to camp.
4. In all activities, where any sports equipment (soccer ball, field hockey ball, softball, Frisbee, etc.) goes into brush or an unmovwed grass area, staff will retrieve the equipment, not the campers.
The plaintiff alleged that the first two steps were not followed by the camp. Sierzputowski claims that she was never advised to wear tick-protective clothing, nor was she instructed to use tick repellant when entering areas likely to have deer ticks. Furthermore, Sierzputowski claims that a deer tick attached itself to her upper arm in plain sight during the first week of camp — a condition that was not properly observed by her cabin counselor or the camp nurse.
Camp Mohawk was proactively managing risk when establishing a specific four-step protocol to protect campers against deer ticks and Lyme disease — given that the U.S. Centers for Disease Control and Prevention have long linked summer camps with Lyme disease, and Lyme disease incident rates have risen dramatically in the past decade. While Camp Mohawk was wise to establish a protocol aimed at preventing its campers from contracting the disease, its failure to follow the protocol is likely to significantly increase Camp Mohawk's exposure to liability.
Specifically, camps bear the legal responsibility to keep campers safe. Premise liability law dictates that camps must provide a reasonably safe environment for all who attend the camp. Further, under premise liability theory, camps have a specific duty to protect campers from foreseeable dangers. The Camp Mohawk tick-prevention protocol clearly established tick bites and resulting medical emergencies as foreseeable and, as such, imposed a legal duty. The next question will be whether the camp breached the duty it had to Sierzputowski and whether such a breach was the proximate cause of her harm.
Sierzputowski's second negligence claim is based on Camp Mohawk's alleged failure to provide emergency medical care for the tick bite. The suit alleges that Sierzputowski visited the camp infirmary on at least 10 separate occasions complaining of obvious signs of Lyme disease, including fever, chills, muscle and joint pain, fatigue and dizziness. The suit alleges that Sierzputowski presented the earliest visible sign of Lyme disease — a bull's-eye rash near the tick bite — but that the camp and its counselors failed to recognize the tick, the rash or the obvious symptoms of Lyme disease, and failed to seek emergency medical treatment for Sierzputowski.
The duty to provide emergency medical care in a camp setting is well-established. This duty requires provision of medical assistance in an urgent, immediate or unexpected circumstance. This duty also requires provision of competent medical assistance or summoning such assistance in a timely manner for harms that are foreseeable. Camp Mohawk, per the lawsuit, had a legal duty to summon immediate medical attention, as early intervention may have prevented the long-term injuries Sierzputowski suffers today.
While Sierzputowski's version of the facts indicate that Camp Mohawk breached its legal duty to provide a reasonably safe camp environment and emergency medical care, the camp is likely to defend itself with a standard assumption of risk waiver commonly used by YMCA camps.
The actual waiver used by Camp Mohawk is not accessible; however, other YMCA camp waivers do specifically use language intended to absolve the camp of liability from any injuries that result from being in a natural setting. Some of these waivers also specifically list Lyme disease as an assumed risk. While utilizing a waiver can be a sound risk-management strategy, the viability of this defense will be impacted by analysis and admissibility of the actual waiver, along with considerations of whether parental waivers are legally valid in Connecticut.
HOTCHKISS AND TELL
The outcome of this lawsuit is also likely to be impacted by a recent decision in the same United States District Court. In Munn v. Hotchkiss School No. 3:09cv919 (SRU), United States District Court, D. Connecticut (2013), a jury awarded $41.7 million to a woman who contracted tick-borne encephalitis on a trip to China with her boarding school. The illness resulted in brain damage and her permanent inability to speak. The federal jury found that the school failed to ensure that the students took precautions against ticks and allowed them to conduct activities in areas known to be of high risk for tick-borne illnesses.
While the Hotchkiss School attempted to argue that tick-borne encephalitis is too rare to be foreseeable, the jury did not sustain this defense. Additionally, the court precluded introduction of a release signed by the student and her mother prior to the trip.
The outcome of the Sierzputowski case is unknown but should serve as a reminder to sport and/or recreation service providers of the necessary precautions that need to be taken regarding activity-specific risks — in this case, tick-borne illness. This case also demonstrates that while establishing a risk-specific safety protocol is a good strategy to help avoid exposure to liability, failing to implement such protocol may actually increase exposure. Finally, the duty to provide emergency care requires not only medical care that can be provided onsite or by medical professionals employed by the service provider, but reasonably timed access to that care when an urgent medical situation is present.
As the case unfolds, Camp Mohawk may be able to successfully defend the lawsuit. However, the need to do so likely indicates that the camp did not successfully design and implement risk-management strategies effectively.