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Update on the Munn v. Hotchkiss School Case

The Forum was one of a group of associations which joined an amicus brief, led by the American Council on Education (ACE), in Munn v. Hotchkiss School, in which a suit was brought against the Hotchkiss School for failing to prevent one of its students from contracting tick-borne encephalitis on a school-run trip to China. Recent developments in the case may have implications for higher education.

This week, The Forum and the other associations received an email from Peter McDonough, Vice President and General Counsel of ACE, offering a summary of the most recent legal decision. Mr. McDonough has kindly allowed us to reprint the email:

Colleagues:

I write regarding Munn v. Hotchkiss School, the negligence action brought against The Hotchkiss School for failing to prevent one of its students (15 years old at the time) from contracting tick-borne encephalitis (TBE) on a school-run trip to China. As you will recall, at trial in the federal district court in Connecticut the jury found in favor of the student and her family, and awarded $41.5 million in damages. Hotchkiss appealed to the federal 2nd Circuit court of appeals, which, in turn referred two specific questions to the Connecticut Supreme Court before it finally rules on the appeal. Your associations all joined in filing an amicus brief.  (Thank you!)

Last week the Connecticut Supreme Court ruled against Hotchkiss, holding that Connecticut public policy did not preclude liability for a reasonably foreseeable injury, and that remittitur, i.e. reduction of the amount of the verdict, was unwarranted in this case as a matter of state law. All five justices on the panel joined in the court’s decision on August 11th, which is attached. However, and perhaps significantly, two justices wrote concurring opinions which frustratingly emphasized the constraints imposed by the narrow questions put to them; indeed one justice went on at length to clearly explain why the case was wrongly decided in federal court. I provide excerpts from that concurring opinion at the bottom of this email.

Undoubtedly encouraged by these concurring opinions, Hotchkiss filed a request this week with the federal appeals court asking the court to entertain additional briefing and oral argument before the court finally rules. Hotchkiss’ motion is attached, in case you are interested in reading it.

As for the Connecticut Supreme Court’s majority decision, it appears that some unfortunate facts may have colored their analysis. For example, the court took particular note that the Hotchkiss students and parents “received some written medical advice for the trip in an e-mail including a hyperlink to a… CDC website that erroneously directed users to the page addressing Central America, rather than the one addressing China; they also were given “a generic predeparture manual [that] indicated that the defendant’s infirmary could serve as a travel clinic, although the infirmary was not qualified to provide travel related medical advice;” and bug spray was referenced on the trip’s packing list “only under the heading ‘Miscellaneous Items,’ along with other, seemingly optional things like ‘[t]ravel umbrella’ and ‘[m]usical instrument.’” As for the day the student contracted TBE in China, the court highlighted this: “Most students, teachers and chaperones rode a cable car down the mountain. The plaintiff and two or three other students, however, were permitted to walk down the mountain by themselves.”

The Connecticut Supreme Court went to great lengths to emphasize that it did not decide the public policy issue referred to it on the basis of an undeniably remote risk of contracting TBE, but rather on the basis of a risk that already was ruled as reasonably foreseeable by the federal courts ahead of referral to the Connecticut court. Helpfully, in terms of the decision’s applicability to the higher education context, the court took particular note of the fact that the student was a minor (15 years old) at the time, saying that Hotchkiss “is obligated” to exercise the same care over students in its charge “that a parent of ordinary prudence would exercise under comparable circumstances.” The court went on to note that “a school having custody of minor children has an obligation to use reasonable care to protect those children from foreseeable harms during school sponsored activities, including educational trips abroad.”

One justice’s concurring opinion said that “the damages award in the present case shocks my conscience,” but lamented that “our existing standard does not provide a recognized basis to conclude that the trial court’s conclusion to the contrary was improper.” He said he had prepared a concurring opinion “in the hope that this issue will be remedied—either legislatively or by this court—at the earliest appropriate opportunity.”

The other concurring opinion bore directly on the extraordinary remoteness of the TBE risk, and – with reference to our amicus brief – worried that the message of this case to trip planners and leaders will result in less, rather than more, attentiveness to actually foreseeable risks.  Highlights from that concurring opinion include:

“I… hope that the [federal] Court of Appeals will revisit its legal determination that there was sufficient evidence to support the jury’s finding that the injuries suffered by the plaintiff Cara Munn were reasonably foreseeable…  a question on which that court has not sought our counsel.”

“The record reveals the following undisputed facts. The plaintiff was the first known United States citizen— and quite possibly the first foreign traveler—ever to contract TBE in China. She caught the disease at a popular tourist destination within commuting distance of Beijing—one that receives over 600,000 visitors each year, including more than 50,000 foreign tourists—in a province in which no human case had ever been reported.”

“TBE is an extremely rare disease. In total, only 10,000 to 12,000 individuals worldwide contract the disease each year. Of those cases, the vast majority occur in Russia and central Europe.”

“Even in areas in which TBE is endemic, the vast majority of ticks do not carry the disease. If bitten by an infected tick, a person has just a 0.005 to 0.001 chance of contracting TBE. Among those infected, most do not suffer any neurological injury.”

“[T]he probability that one of the defendant’s students, having requested permission to walk down Mt. Pan and promising to remain on the path, would disregard her teacher’s warnings, leave the trail, become lost in the vegetation, get bitten by one of the rare infected ticks, contract the disease, and suffer permanent injury was infinitesimally low.”

“[T]he CDC, having reviewed all laboratory records for [2000-2009], concluded that only five United States travelers had contracted TBE while overseas and that the plaintiff was the first ever to have contracted the disease in China.”

“[T]h CDC… reached the following conclusion: ‘’For unvaccinated travelers to areas in which TBE is endemic, the estimated risk for TBE during… transmission season is approximately one case per 10,000 person months.’ One case per 10,000 months. In other words, if the plaintiff and ten thousand of her classmates spent the full month of July living in the semirural area around Mt. Pan, only one of them would likely contract TBE.”

By my calculations, she had less than a one in two million chance of contracting TBE during her brief field trip to Mt. Pan, lower even than her chance of being struck and killed by a meteorite.  If that was foreseeable, then it is difficult to imagine any misfortune that would not be.

There simply was no basis, then, on which a jury reasonably could have concluded that it was likely or probable that the plaintiff would contract TBE at Mt. Pan, as our law requires before liability for negligence will lie.

“I am not aware of a single case in any jurisdiction in which a risk that was as quantifiably improbable as this was deemed to be reasonably foreseeable.”

“Consider just a few of the freak accidents, illnesses, and injuries that might befall a visitor to China. In recent years, tourists to China have been mauled to death by zoo tigers, caught up in airport riots, murdered by Uighur terrorists, robbed in bars, injured under collapsing bridges, and killed in various ways at scenic lookout points. Chinese authorities have imprisoned tourists for using their cellphones on airplane mode and for watching a British Broadcasting Corporation documentary. A visitor to the country could fall victim to a novel strain of avian flu or to an ancient affliction such as the bubonic plague. They could be poisoned by street food or contaminated sashimi; knocked off the Great Wall of China or stoned by Buddhist monks. In bus accidents alone, foreign travelers have been injured or killed when their tour buses burst into flames, plummeted into a valley, fell off a cliff, or were buffeted by falling rocks during an earthquake.”

“If a school such as the defendant is required to not only warn students about the risk of a disease as rare as TBE but also to protect them from such a risk while travelling abroad, then it must take comparable precautions with respect to all of the other singular risks that attend foreign travel.”

“The defendant’s staff could have spent many pages and many hours warning their students about and preparing them against these and numerous other serious but undeniably remote risks…. It is difficult to know how the risk of a rare tick-borne illness would have rated in this parade of horribles, but one suspects that the typical teenager would have paid it less mind than some of the more outlandish dangers.”

REFERRING TO OUR AMICUS BRIEF: “As the amici wisely caution, ‘[e]ven if educators could warn of and guard against every such risk, the information overload would leave students and parents in a maze of warnings…. [Such a requirement] would have the… negative effect of… burying warnings about imminent risks among a litany of other warnings….’ Indeed, requiring that trip planners lecture teen travelers about every possible foreseeable risk would likely have the unintended consequence of jeopardizing student safety by diverting their attention from the more credible risks.”

Thank you again for joining in our amicus briefing to the Connecticut Supreme Court, and thank you, as well, for many of you joining in the earlier amicus brief in this case to the federal 2nd Circuit court of appeals. We will let you know when and how that court finally rules on Hotchkiss’ appeal.

Peter McDonough
Vice President and General Counsel
American Council on Education