A big question for a judge to answer.
More than a dozen families are suing the all-girls Christian summer camp after last July’s catastrophic Hill Country flood tore through its grounds, killing 27 campers and counselors. The families allege camp leaders failed to evacuate campers and counselors despite worsening flood conditions, resulting in their daughters’ deaths.
Jury trials for all five cases have been scheduled for next year. But Camp Mystic argues the cases should be decided out of court by a qualified arbitrator, citing a “binding arbitration” provision in an agreement families signed when registering their daughters for camp.
These agreements also highlighted various risks associated with attending summer camp, including “the risk of ‘floods,’ risks caused by ‘errors of judgement,’ and those caused by ‘careless conduct,’ which the agreements warn ‘in extraordinary cases, may be serious,'” according to the camp’s request for arbitration.
The camp originally filed motions requesting arbitration on March 24. Judge Maya Guerra Gamble was set to decide the issue on May 13. However, just hours before the hearing, the camp withdrew its original motions and re-filed amended ones. The move drew criticism from both Gamble and the families’ attorneys.
“What I don’t like is the last second notice. I especially don’t like it when I think I know what’s going on,” Gamble, who’d been prepared to rule on the matter, said.
Will and CiCi Steward’s 8-year-old daughter, Cile, remains missing after last July’s flood. Their legal team has since filed a motion asking Gamble to impose sanctions on Camp Mystic, including striking the camp’s amended request for arbitration — arguing it had engaged in “bad-faith litigation conduct.”
According the Stewards’ filing, Camp Mystic “induced Plaintiffs to expend significant resources opposing their motion to compel arbitration, withdrew it in defiance of this Court’s directive on the eve of the specially set hearing … and then refiled the same motion after reviewing Plaintiffs’ responses.”
Two other legal teams representing Camp Mystic families have also since filed a joint motion asking Gamble to strike Camp Mystic’s amended request for arbitration.
In their filing, they claim Camp Mystic was “unwilling” to argue its original motions to compel arbitration on May 13 because “they knew those motions would fail.” The families also said “such manipulative maneuvers” warrant striking the camp’s amended motions.
The families also claim Camp Mystic has “waived any right to arbitration by expressing their intention to litigate in open court and engaging in litigation conduct for months before pivoting to arbitration after an unfavorable temporary injunction ruling.”
Carl Tobias, a professor of law at the University of Richmond, has been following the cases. He said there’s another reason why Gamble might rule against moving the cases to arbitration: public interest.
“The problem with arbitration is it isn’t usually in open court. It isn’t before a jury of fact finders, it’s very much private,” he said. “I think it is imperative to have the case tried in a courtroom with a jury of fact finders and a judge for reasons that have to do with what happened, and so that everybody knows as best they can what happened and what the facts are.”
See here for the most recent update I have on the litigation. I’m sure there have been mentions of arbitration as a potential alternative to the courtroom for these lawsuits, but it was never sufficiently in focus for me to give it any thought. Businesses usually like having disputes like this decided by arbitrators, in part because they tend to be the ones who pay the arbitrators. I personally find the whole push for arbitration, which has expanded greatly in the past few years and which we all sign agreements on for all kinds of transactions we engage in, to be distasteful and often aggressively anti-consumer. But it is increasingly entrenched in the law. In this case, Camp Mystic had an opportunity to request the change of venue, said they would decline it, then changed their minds at the last minute. The judge will now decide what happens.
KVUE has by far the most comprehensive report on how Wednesday’s hearing went.
At issue here are the participation agreements that all the parents signed when registering their daughters for Camp Mystic last summer. Those agreements included a “binding” arbitration clause, which Camp Mystic’s lawyers say was legally valid, so they argue these lawsuits should be resolved outside the courtroom and with arbitration.
The agreement highlights the risks associated with summer camp, including “the risk of ‘floods,’ risks caused by ‘errors of judgment,’ and those caused by ‘careless conduct,’ which the agreements warn ‘in extraordinary cases, may be serious,'” according to court documents.
“I understand this is an incredibly serious case. I understand that there is a lot here,” Joshua Fiveson, an attorney representing Camp Mystic, said. “That does not change the legal framework, and the question is whether or not a contract was formed. It was.”
Attorneys for the families who lost loved ones say the arbitration waiver they signed was on the parents’ behalf, but not on the behalf of the children who died, though Camp Mystic’s attorneys said they believe the agreement covered the children.
While there is case law that says family members can’t waive their minor children’s right to seek legal recourse in personal injury cases, Camp Mystic’s attorneys say no right is being waived by compelled arbitration; it is just moving it to a different legal venue.
Lawyers for the families argue that camp leaders waived their right to arbitration by what they did during last month’s hearing, when they withdrew and filed an amended motion the night before, because the judge said they could withdraw their motion only if both parties agreed. Lawyers for the families said they would only agree to allow Camp Mystic’s lawyers to withdraw their motion if they did so “with prejudice”, which means they can’t file the same motion again.
By withdrawing the motion at 11:59 p.m., they argued they implicitly agreed to their demands not to file again.
“If litigants could simply ignore deadlines and then file subsequent filings to comply with the requirement at a later date, there would be no reason for any party to comply with a court order deadline. The court simply can’t tolerate that kind of conduct,” Russel Post, an attorney representing some of the families, said. “They did exactly what the rules forbid them from doing, which is unilaterally resetting the hearing for strategic advantage.”
Attorneys representing Camp Mystic have pushed back in court, arguing that there was nothing wrong with their filing an amended motion for arbitration and that they had no written agreement.
“Arbitration is always a product of consent and not coercion. That is the principle that the Supreme Court repeatedly reiterates,” Post said. “In substance, what is happening here is the defendants are trying to coerce the plaintiffs into arbitrating with a whole range of defendants with whom they never contractually agreed to, and that is inappropriate.”
[…]
Camp Mystic is trying to compel arbitration in all of the cases, including the two camp counselors who died, Chloe Childress and Katherine Ferruzzo. While those employment contracts with the counselors didn’t include arbitration clauses, Camp Mystic’s attorneys argued that the agreements those girls signed as campers in 2024 did. However, lawyers for the families argued that the employment contracts superseded the camper agreements, so the arbitration clause was not in effect.
Post said he believes these cases have no place in arbitration and that this is not what arbitration is intended to do, as they involve a matter of great public interest and the protection of children.
It’s a long story with a lot of details, so read the rest. I Am Not A Lawyer and have no expertise in these matters, but I thought the argument that the two counselors were covered by their prior camper agreements was absurd and should be easily rejected. Maybe the rest of their case had merit, I am not qualified to say. Judge Gamble has a big decision to make, and you can bet your bottom dollar it will be appealed regardless. The Chron and WFAA have more.
Zero respect for Camp Mystic. Due to the gravity of the event and the hundreds of lives lost, they should have scraped the acreage of any/all human presence and turned the ‘Camp’ into a ‘remembrance’ park or cordoned it off completely from the public. What a travesty.