Exam S
OUTCOME: HOW THE GRINCH STOLE ALL THE FUN
ocial services investigated the barn and concluded that the stable was, in fact, operating a day care pro-
gram without a license. In the state in question, a “child day program” means a regularly operating service ar- rangement for children where, during the absence of a parent or guardian, a person or organization has agreed to assume responsibility for the supervision, protection and well-being of a child under the age of 13 for less than a 24-hour period. Sound like a barn you know? It is common for the beloved lesson barn to turn into
a de-facto day care program for the incurably horse cra- zy children who frequent it. Most barns do not operate with the same policies that are adopted by gyms, dance studios, and other facilities where children are dropped off by their parents for programming or instruction. The “problem,” if you will, is exactly what makes barns so appealing for horse crazed children—the freedom and independence from their parents and the endless “hanging out.”
But it is the structure of the drop-off and pick-up policies of gyms, etc., that takes a facility out from under the definition of a day care center. And, if a child is com- ing in for a riding lesson and is dropped off immediately before, and picked up immediately after, or if the parent hangs around to watch the child ride, then the barn is most likely not running afoul of any social service licens- ing requirements. What makes a barn different than, let’s say, the mall,
is that some adult at the barn is deemed to have “as- sumed responsibility” for the children who are dropped off. If a parent simply drops their kid at the mall, un- supervised, the mall is not responsible for the child; at worst, the parent may be delinquent in their responsi- bility to the child… but that is not the problem of mall management. It is not the act of the parent in dropping the child off that creates the “day care” scenario. Rather, it is the act of the barn allowing the parent to drop the child off that exposes the barn to the scrutiny of social services and child protective service agencies. The barn’s liability is undoubtedly linked to the age of the children involved. But the relevant age range may be state specific. But any barn that doesn’t have and enforce a strict drop-off and pick-up policy may be in danger of running afoul of social services. As was the case with the Grinch, social service agen-
cies are likely too busy to worry about what is going on at the local barn unless and until someone lodges a complaint. And it is not likely that any of the parents of any of the kids in attendance are going to complain.
72 January/February 2014
But once a complaint is lodged, an investigation is almost inevitable, as state and local governments are very serious about their regulatory obligations when it comes to day care programs. What about the fact that the barn is not charging a
fee to the parents for “watching” the kids? It does NOT make a difference. And in this case, it didn’t make a dif- ference that the “agreement to assume responsibility” was not in writing. That the barn and the kids’ parents had a “regularly operating service arrangement” was es- tablished by the fact that the kids were there regularly. If a barn is experiencing a situation where children
(pre-teens) are regularly dropped off and left at the barn for long periods of time when they are not specifi- cally participating in a lesson program, then the barn should take the initiative to determine its responsibili- ties to these children under state and local laws. If the situation puts the barn at risk of being declared an unlicensed day care program, there are various ways in which the barn can avoid liability and still meet the chil- drens’ expectations of spending their free time at the barn. Some examples include: creating a “program of instruction” that includes an individualized schedule of activities (including chores) or; having the parents sign a document in which the barn disclaims supervisory re- sponsibility for the children outside certain parameters. Barns should also be mindful that even if social ser-
vices doesn’t come knocking, having lots of children hanging out at the barn without adult supervision may pose another serious risk, and that is that the barn’s commercial general liability insurance policy may not cover every liability that arises from a kid being in a barn. The barn’s commercial general liability insurance policy will be written to cover liabilities arising from equine activities and activities related to the barn’s “commercial” activities and the services the child is pay- ing to participate in. But if the kids are just hanging out, and resort to a game of Capture the Flag or Manhunt, and someone gets hurt in that process, then there is the distinct possibility that the insurance company will en- gage in the same “is it really a day care?” analysis as so- cial services, and then conclude that the “equine activi- ties” coverage does not apply to running an unlicensed day care. There is one specific case where insurance coverage was denied under these circumstances, so it is not a pure hypothetical that falls outside the realm of possibility.
Bar
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100