In July of 2007, a private school student contracted tick-borne encephalitis while in China for a school sponsored trip. Subsequently, the student sued the school and alleged that it was negligent in its failure to protect the student. On March 27, 2013, the Supreme Court of Connecticut ruled that schools are required to warn and protect students against the risk of insect-borne illnesses when organizing school trips abroad. The case was appealed to the Second Circuit Court of Appeals. The Second Circuit sent the case back to the lower court with questions. Those questions were answered on August 11, 2017 and now the case heads back to the Second Circuit. If the Second Circuit affirms the lower court’s decision, there will be serious legal implications for private schools.
The Hotchkiss School (“Hotchkiss”) is a private boarding school located in Lakeville, Connecticut. In March 2007, Jean Yu, Chinese Language and Culture Program Director at Hotchkiss, served as a trip leader for the summer program in Tianjun, China, which was organized by Hotchkiss.
To prepare for the trip, Yu sent parents an outline of activities that the students would be engaging in, and legal forms for the participants and their parents to waive legal claims against the school. Hotchkiss sent medical advice for the trip, which included a link to the Centers for Disease Control and Prevention (“CDC”) webpage. In addition, the school sent an itinerary, packing list and a handbook on international travel. The packing list mentioned bug spray, but failed to warn parents about insect-borne diseases in the section where health risks were mentioned.
On June 23, 2007, the students went to Mt. Pan, which is a forested mountain. While there, a group of students, which included Cara Munn, a 15-year-old girl, hiked down the mountain. Yu had left the bug repellant on the bus during the hike. Yu pointed out a path and said she would meet them at the bottom. Yu testified that the students got lost and walked through brush and amongst trees.
After the trip to Mt. Pan, Munn complained of many insect bites and a welt on her arm. Ten days later, she awoke to a fever, headache, and dizziness. Her condition rapidly deteriorated and she was taken to a local hospital. Munn was transferred to a Bejing Hospital where she was met by her parents from the United States. Munn was ultimately diagnosed with tick-borne encephalitis, a viral infectious disease affecting the central nervous system. As a result of the disease, Munn lost her ability to speak and experiences difficulties controlling her facial muscles.
Munn and her parents filed a lawsuit on July 11, 2009 against Hotchkiss alleging that her illness was caused by the school’s negligent planning and careless supervision. Specifically, Munn alleged among other claims that Hotchkiss was negligent in 1) failing to warn about the risks of viral encephalitis; 2) failing to provide for appropriate protective clothing, insect repellant, or vaccinations.
After a seven-day trial in 2013, Hotchkiss was found liable. The jury found that the school was negligent in failing to warn Munn of the risk of serious insect-borne illnesses and failed to ensure protective measures. The Munn family was awarded $41.5 million. Hotchkiss appealed the verdict.
Hotchkiss argued on appeal that imposing a legal duty to warn or protect contravenes Connecticut public policy. In addition, the school argued and several amici pointed out that it is unreasonable to expect a school to warn students and protect them against every potential danger. Courts in Connecticut that address public policy issues have considered four factors to decide whether or not to impose a duty in negligence cases.
First, what the normal expectations of the participants are in the activity under review. Second, the public policy encouraging participation, while balancing the safety of participants. Third, the avoidance of increased litigation. Finally, other jurisdictions’ decisions.
While no case is directly on point with Munn, courts in several other jurisdictions have refused to impose a duty in similar cases and have construed schools’ duties narrowly. The main basis for the narrow construction is that a teacher cannot be required to watch students at all times. Such a burden would discourage schools from allowing children the opportunity to enjoy extracurricular activities.
Since Connecticut case law provides limited guidance on the issue on appeal and there is no prior authoritative case law present, certification is appropriate. As such, on August 3, 2015, the Second Circuit Court of Appeals certified two questions to the Connecticut Supreme Court.
The first question was “[d]oes 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?” The second question was “[i]f so, does an award of approximately $45.1 million in favor of the plaintiffs, $31.5 million of which are non-economic damages, warrant remittitur?” Remittur is a ruling by a Judge lowering the jury’s award of damages.
Despite the Second Circuit’s certification, it agreed with plaintiffs that the evidence was sufficient to support a finding that Munn’s tick-borne encephalitis was foreseeable.
Lower Court’s Response to Second Circuit
On August 11, 2017, Chief Justice Chase T. Rogers of the Connecticut Supreme Court wrote that a school has a general obligation to protect students against foreseeable harms. Further, she wrote that “the normal expectations of participants in a school sponsored educational trip abroad, involving minor children, are that the organizer of the trip would take reasonable measures to warn the participants and their parents about the serious insect-borne diseases that are present in the areas to be visited and to protect the children from those diseases.” The case will now head back to the Second Circuit for a decision.
Implications for Private Schools
If the Second Circuit affirms the Connecticut Supreme Court’s decision, this will mean that private schools are responsible for warning students and parents and protecting participants from various dangers that could be encountered on a school trip. This would include insect-borne diseases present in the area to be visited on school-sponsored field trips. Further, if a private school fails to do so, it can be held responsible and can face a large sum in damages.
In light of the Munn decision, schools will want to consider establishing very thorough trip planning efforts so that preventative measures to ensure that students are protected on school trips and schools are shielded from possible liability. School activities personnel will need to be more thorough in their planning the safety and security of the students. If a danger is foreseeable, a school needs to make sure to prepare and implement procedures to warn and protect its students and other participants on the trip.