In Munn v. The Hotchkiss School, the Second Circuit certified two questions to the Connecticut Supreme Court to help it decide an appeal from a $41.5 million jury verdict awarded to a student who contracted a serious tick-borne disease while on a month-long study abroad program in China: (1) does Connecticut public policy support imposing a duty on a school to warn or protect against the risk of serious insect-borne disease when it organizes a trip abroad; and (2) if so, does an award of approximately $41.5 million in favor of the plaintiff, $31.5 million of which are noneconomic damages, warrant remittitur? For our prior coverage of the arguments, click here.
On August 11, 2017, the Connecticut Supreme Court issued its decision, concluding that Connecticut public policy supports a school’s duty to warn and protect students from serious tick-borne disease on a school-sponsored trip abroad. The Court reiterated the well-established duty of Connecticut schools with custody of minor children to use reasonable care to protect those children from foreseeable harms during school sponsored activities. The Court found no compelling reason to create an exception to this rule for “foreseeable insect-borne diseases.”
In deciding whether to create such an exception, the Court evaluated four public policy factors: (1) the normal expectations of the participants; (2) balancing the public policy of encouraging participation in the activity against the safety of the participants; (3) avoidance of increased litigation; and (4) decisions in other jurisdictions.
The Court determined that, based on the school’s superior knowledge of travel planning and itineraries, trip participants – and their guardians – would naturally expect that trip organizers would warn of and take steps to prevent serious insect-borne diseases. The Court noted that information about the methods to avoid such diseases is readily available, and that many such measures are simple and straightforward, such as covering exposed skin, applying insect repellant with DEET, checking for ticks, and avoiding the woods in high risk areas.
Regarding the second, third and fourth factors, the Court noted that it is the public policy of the state to encourage travel and that eliminating unnecessary risks should encourage rather than dampen travel abroad. Noting the lack of cases involving similar circumstances, the court further expressed its doubt that its decision would lead to an increase in litigation. Importantly, the Court stated that the mere recognition of a legal duty does not create an “open and shut case,” but still requires the plaintiff to establish that the disease at issue was foreseeable and that the school failed to warn and/or take steps to prevent it.
The Supreme Court’s analysis and conclusion were governed by the facts and issues as narrowly presented in this case. For this reason, Justice Espinosa authored a concurring opinion focusing on an issue not before the court: whether there was sufficient evidence to support the jury’s finding that the injuries suffered were reasonably foreseeable. Justice Espinosa noted that the plaintiff’s chances of contracting TBE were “infinitesimally low,” indeed, “lower even than her chance of being struck and killed by a meteorite.” Expressing her hope that the Second Circuit would revisit its legal determination that there was sufficient evidence to support the jury’s findings that plaintiff’s injuries were reasonable foreseeable, Justice Espinosa stated that if an injury like this is foreseeable, “it is difficult to imagine any misfortune that would not be.”
Regarding the question of remittitur, the Court held that although sizable, the award fell within the limits of just damages. In a concurring opinion, Justice McDonald expressed his concern that Connecticut’s remittitur jurisprudence is inconsistent and muddled. He noted that the damages award shocked his conscience, but that the existing legal standards provide no way for the appellate courts to find error. He stated his hope that this lack of clarity would be remedied by either the legislature or the court at the earliest opportunity.
This case serves as an important reminder that schools have a duty to use reasonable care to protect their students from foreseeable harm. If a school has reason to believe that participation in an educational activity might expose a student to foreseeable harm, it should warn parents and students about that potential harm. As for travel-abroad programs, the Munn decision makes clear that before embarking on such trips, schools should carefully research indigenous diseases, and prepare and disseminate warnings and prevention information to participants and their parents.