Should schools that arrange field trips to foreign countries have duty to warn about / protect against rare tick-borne encephalitis?

|The Volokh Conspiracy |

From Munn v. Hotchkiss School, decided today by the U.S. Court of Appeals for the 2nd Circuit (some paragraph breaks added):

Cara Munn . . . , then a fifteen‐ year‐old student at the Hotchkiss School . . . , a private boarding school, decided to participate in a summer program in Tianjin, China, organized by Hotchkiss. The month‐long program immersed students in Chinese language classes and included weekend trips to cultural landmarks.

Jean Yu, the school's Chinese Language and Culture Program Director, served as the trip leader. In preparation for the trip, in March 2007, she sent parents a packet outlining activities and a set of legal forms for the participants and parents to waive legal claims against the school. The packet mentioned a visit to Mount Panshan, referred to by the parties as "Mt. Pan." The school also sent medical advice for the trip, including a link to a Centers for Disease Control and Prevention . . . webpage and a note that the school's infirmary could "serve as a travel clinic." The webpage linked to the CDC's Central America site instead of its China site, however, and the infirmary was unable to provide independent medical advice.

Finally, the school sent an itinerary, packing list, and a handbook on international travel. The packing list mentioned bug spray in its "miscellaneous" category, but included no warning about insect‐borne diseases in the section where other health risks were mentioned.

On June 23, 2007, while on the trip, the students went for a weekend excursion to the Great Wall and to Mt. Pan. Mt. Pan is a forested mountain. Again, no warnings to wear bug spray were given. Trip leader Yu left her bug spray on the bus. After hiking to the top of the mountain, a group of three or four students, including Munn, decided to hike down, while the others took a cable car. Yu pointed them to the path and said that she would wait for them at the bottom. Munn testified that the students decided to leave the paved path and follow narrow dirt trails instead. The students got lost and walked among trees and through brush.

Munn testified at trial that after the trip to Mt. Pan she had many insect bites and an itchy welt on her left arm. Ten days later, she awoke with a headache, a fever, and wooziness. Her condition deteriorated rapidly and she was taken to a local hospital. Munn was then transferred to a Beijing hospital and her parents came from the United States. Severely ill and partially paralyzed, Munn was soon airlifted back to New York. Munn was diagnosed with tick‐borne encephalitis ("TBE"), a viral infectious disease which affects the central nervous system.

Because of her illness, Munn lost the ability to speak. At trial, she testified through a machine into which she typed her answers. She has difficulty controlling her facial muscles, causing her to drool. Her mother testified about Munn's frustration with her inability to speak and stated that Munn experiences "a lot of rejection." Munn has also lost some cognitive function, particularly in terms of reading comprehension and math. Still, Munn has managed to live a functional life. She finished high school and attended Trinity College. She can play sports, still travels, and has held summer internships.

Munn sued, and the jury found the Hotchkiss School liable for $41.5 million in damages, of which $31.5 million were noneconomic damages. The school appealed, arguing that the school shouldn't be seen as having a duty to warn about or try to prevent rare diseases such as this, and that the damages award was too high. (Note that the 2nd Circuit concluded that, though the risk of tick-borne encephalitis was foreseeable, it "was undeniably remote. No American had ever before contracted TBE in China.") Since the question here is one of Connecticut state law, the 2nd Circuit decided to certify the case to the Connecticut Supreme Court; but the 2nd Circuit's laying out of the issues struck me as interesting enough to quote at some length (some paragraph breaks added):

Under Connecticut law, foreseeability of harm alone is not determinative of duties in tort and the imposition of a duty of care also implicates questions of public policy. The Connecticut Supreme Court has stated:

A simple conclusion that the harm to the plaintiff was foreseeable cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed. A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendantʹs responsibility should extend to such results.

No Connecticut case closely resembles this one, but in at least two cases, the Connecticut Supreme Court has overturned jury verdicts by finding that public policy did not support the imposition of a duty on the tortfeasor. In Jaworski v. Kiernan, 241 Conn. 399, 409 (1997), the Connecticut Supreme Court overturned a jury verdict finding a recreational soccer player responsible for another player's injury based on a theory of negligence. The court reasoned that public policy favors encouraging competitive sports. In reaching this conclusion, it noted that other jurisdictions have required deliberate or reckless conduct, not just negligence.

And in Lodge v. Arett Sales Corp., 246 Conn. 563, 577 (1998), the Connecticut Supreme Court overturned a jury verdict against an alarm company for injuries incurred by firefighters in a brake failure when they were responding to a false alarm. The court noted, "[w]e focus our decision, therefore, equally on the policy implications of this case rather than strictly upon the foreseeability of the plaintiffs' harm."

More recently, in Mercier v. Greenwich Acad., Inc., No. 13‐CV‐4 (JCH), 2013 WL 3874511, at *5 (D. Conn. July 25, 2013), a federal judge applying Connecticut law declined to impose a duty on a coach and school after a player was injured during a basketball game. The court reasoned that Connecticut public policy weighs in favor of encouraging "vigorous participation in recreational sporting activities," even if those activities create safety risks. Holding the coach responsible, the court concluded, would chill the coach's role of encouraging competition in sports.

Cases such as Jaworski and Mercier indicate that courts place a high value on recreational activities for children, even if they sometimes create safety concerns. Although the present case does not involve competitive sports, it also implicates important questions of public policy because of the benefits of educational trips for children.

Connecticut courts addressing public policy questions have considered four factors to determine whether to impose a duty in negligence cases: "(1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." The four public policy factors do not point to an obvious answer in this case as both parties present colorable arguments on either side.

First, the expectations of the parties depend on the level of generality applied to describe the events that occurred in this case. Parents and children participating in a school‐sponsored international trip might expect a school to warn about or protect against some of the risks of the trip, including potentially the dangers of serious insect‐borne diseases.

However, as Hotchkiss and several amici point out, it is unreasonable to expect a trip organizer to warn students about or protect them against every danger. Field trips are intended to expose children to situations outside of their comfort zones and of the organizers' control. Such trips thus naturally entail a certain level of risk. Here, the risk of contracting tick‐borne encephalitis was undeniably remote. No American had ever before contracted TBE in China. Thus, although travelers may generally expect a school to warn about or protect against dangers, including serious insect‐borne diseases, no one could have expected that Munn would contract TBE.

Second, international trips and outdoor activities, while sometimes posing substantial health and safety risks, offer important benefits to their participants. The public benefits of international education and student exchanges are written into Connecticut statutory law. Connecticut General Statute Section 10‐27(a) states:

It shall be the policy of the state to encourage its students, teachers, administrators and educational policy makers to participate in international studies, international exchange programs and other activities that advance cultural awareness and promote mutual understanding and respect for the citizens of other countries.

At the same time, the safety of minors, who in varying degrees are under the care and protection of schools on these trips, is an important concern. Minors on such trips are in the custody of the organizations leading them, and the health and safety of the children must have a bearing on how these trips are conducted. [Footnote: Notably, while encouraging international exchange programs, the Connecticut legislature has not, as at least one other state has, enacted a statutory immunity for school trips. See Cal. Educ. Code § 35330(d).]

Third, this case is likely to have repercussions on litigation in the area of child safety, especially in light of the substantial damages awarded to these plaintiffs. If the award stands, it would set an important precedent for negligence cases arising from educational trips. In fact, the effects of this case are already manifest. Munn's attorney recently brought another lawsuit in which the plaintiff seeks the same damage award for contracting Lyme disease at a YMCA camp.

This case is likely to encourage future victims of unusual accidents on educational trips to seek compensation, placing a heavy financial burden on trip providers. On the other hand, it is reasonable to suppose that such liability could also cause an increase in diligence on the part of trip providers, potentially avoiding catastrophic injuries such as befell Munn.

Fourth, no case is exactly analogous to this one, but courts in several other jurisdictions have declined to impose a duty in similar cases and have construed the duties of schools more narrowly. In David v. City of New York, 40 A.D.3d 572, 574 (N.Y. App. Div. 2007), the court found that a school did not breach a duty of supervision where a child was injured on a hay ride. The court noted that previous hay rides had occurred without incident and that the school had "no knowledge or notice that [the] hay ride would be hazardous."

In Mancha v. Field Museum of Natural History, 5 Ill. App. 3d 699, 702 (1972), the court declined to impose a duty where a child on a field trip was assaulted by unaffiliated students. The court found that "the risk that a 12‐year‐old boy would be assaulted in a museum is minimal" and that recognizing a duty would impose a significant burden of supervision on the school. It stated:

A teacher cannot be required to watch the students at all times while in school, on the grounds, or engaged in school‐related activity. If the law imposed such burdens it would well discourage schools and teachers from affording opportunities to children to enjoy the many extracurricular activities. It has long been recognized that something other than classroom teaching is needed for a sound education. Learning is not confined to books.

These two cases indicate efforts by other jurisdictions to encourage extracurricular activities by limiting the duties of schools to warn about or protect against unlikely or unusual events. At the same time, there are also instances where courts have found that schools owe a duty in the context of extracurricular activities. See, e.g., City of Cedar Falls v. Cedar Falls Cmty. Sch. Dist., 617 N.W.2d 11, 16‐18 (Iowa 2000) (school district liable for negligence resulting in kindergarten student's death in golf cart accident during field trip); Travis v. Bohannon, 128 Wash. App. 231, 239 (2005) (school district owed duty of care to high school students participating in off‐campus "Workday").

Upon review of these four factors and of Connecticut precedent in negligence cases, we are unable to determine whether Connecticut public policy supports imposing a duty to warn or protect in this case. Although prior Connecticut decisions in the area of recreational sports suggest that public policy may favor placing limits on schools' legal duties in the context of school trips because of their educational benefits, no case has yet addressed this precise question and no case is close to the facts of this case. . . .

Because Connecticut case law does not offer sufficient guidance on the question of public policy in negligence cases, we think it best to let the Supreme Court of Connecticut determine whether Connecticut public policy supports imposing a legal duty on Hotchkiss. . . .

Defining the scope of a school's duty when it leads an international trip could have significant consequences for negligence litigation in Connecticut, which is home to many private and public schools. Although cost‐benefit analysis in most cases assumes that all interested parties are represented in the case, this is not so here. The societal impact of finding a duty here extends far beyond Hotchkiss. To impose a duty on Connecticut schools to warn about or protect against risks as remote as tick‐borne encephalitis might discourage field trips that serve important educational roles. If the costs imposed on schools and non‐profit organizations become too high, such trips might be curtailed or cease completely, depriving children of valuable opportunities. Public policy may thus require that participants bear the risks of unlikely injuries and illnesses such as the one that occurred in this case so that institutions can continue to offer these activities.

On the other hand, imposing a duty of reasonable care on Hotchkiss may not have the effect of increasing litigation. If schools take steps to protect students from foreseeable harms, legal actions may in fact decrease. Alternatively, those actions premised on an absolute demand to ensure student safety "as opposed to the failure … to take reasonable precautions, likely will be dismissed in the absence of negligence." Balancing these factors is a task primarily for state decisionmakers rather than federal courts. . . .

[W]e certify two questions of law to the Connecticut Supreme Court: (1) Does Connecticut public policy support imposing a duty on a school to warn about or protect against the risk of a serious insect‐borne disease when it organizes a trip abroad? (2) If so, does an award of approximately $41.5 million in favor of the plaintiffs, $31.5 million of which are non‐economic damages, warrant [reduction]?

Thanks to How Appealing for the pointer.